CITATION: Wu v. City of Toronto and Toronto Ombudsman, 2023 ONSC 6192
DIVISIONAL COURT FILE NOS.: 289/22
606/22
DATE: 20231103
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Baltman and Lococo JJ.
BETWEEN:
Court File No. 289/22
Peter Wu
Applicant
– and –
Toronto Ombudsman, Paul Zuliani, City of Toronto Planning Department and Human Rights Tribunal of Ontario
Respondents
-and-
Court File No. 606/22
Peter Wu
Applicant
– and –
Toronto City Councillor Nick Mantas, Toronto Integrity Commissioner and Human Rights Tribunal of Ontario
Respondents
Peter Wu, Self-Represented
Alison Barclay, for the Respondents, Toronto Ombudsman, Paul Zuliani, City of Toronto Planning Department, Toronto City Councillor Nick Mantas and Toronto Integrity Commissioner
Brian Blumenthal, for the Human Rights Tribunal of Ontario
HEARD: April 5th, 2023 in Toronto by videoconference
REASONS FOR DECISION
Stewart J.
Nature of the Applications
[1] Peter Wu (“Wu”) has brought these applications for judicial review of a series of decisions of the Human Rights Tribunal of Ontario (“HRTO”) which dismissed his complaints against various employees, officials and a Council member of the City of Toronto. Wu had alleged that these individuals unlawfully discriminated against him by either refusing to provide services to him or by failing to address his complaints about their alleged refusal of services.
[2] Wu’s complaints were dismissed by the HRTO. His requests for reconsideration of these decisions were likewise dismissed.
[3] Wu submits that the decisions are legally incorrect and are also unreasonable. He further submits that he was denied procedural fairness in the summary processes adopted by the HRTO to hear and determine his complaints and that the HRTO Adjudicators conducting the hearings were biased against him.
[4] The individual Respondents submit that these applications for judicial review are without merit and should be dismissed.
[5] The HRTO takes no position on the merits of the applications but submits that if the decisions are quashed that they should be remitted to the HRTO for re-determination.
[6] As both applications deal with the same or substantially overlapping subject matter, they were ordered to be placed on a list for hearing on the same date. In the circumstances, the applications were heard together by this panel.
Background
[7] In his complaint filed with the HRTO on September 10, 2019, Wu alleged that Paul Zuliani and the City of Toronto Planning Department had refused to answer to his satisfaction certain questions he had about changes to zoning by-laws that had been passed in 2013 that he believed detrimentally affected his property. He claimed that this pattern of denial was based on the fact that he is of Chinese origin and English is not his first language. He therefore characterized this alleged refusal of services as discriminatory on grounds of race, ancestry, place of origin and ethnic origin, contrary to s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).
[8] Wu also complained that the Ombudsman for the City of Toronto had discriminated against him on the same grounds by failing to address his concerns about the alleged refusal by the City of Toronto Planning Department to provide satisfactory answers to his questions.
[9] On November 29, 2019, the HRTO directed that a hearing be held to address whether the complaints should be summarily dismissed on the basis that they had no reasonable prospect of success. Wu was invited to file written submissions and any documents in support in advance of the summary hearing. Wu filed such written submissions and documents, attended the hearing and made oral submissions.
[10] As provided by the HRTO summary hearing procedure, the Respondents to Wu’s complaints were not required to file a Response.
[11] On February 28, 2022, the HRTO Adjudicator who conducted the summary hearing dismissed Wu’s complaints as having no reasonable prospect of success. In that decision to dismiss the complaints, the Adjudicator explained the test for finding a reasonable prospect of success, which involves accepting the complainant’s version of events absent clear contradictory evidence. The Adjudicator concluded that, even when Wu’s version of events was accepted and taken at its highest, the evidence put forward by him in support of his complaints did not meet that test.
[12] The Adjudicator considered that Wu’s suspicions of discrimination and unfairness were more likely the product of his dissatisfaction with the answers he was given to his questions about the by-law and its effect on his property. There was no link established between the allegedly offensive treatment and any grounds of discrimination prohibited by the Code. In coming to that conclusion the Adjudicator observed that, although discrimination often may not be overt, Wu had not pointed to any other information that would warrant the scheduling of a full hearing on the merits of his complaints. His assertion at the hearing that a “white zoning consultant” was treated differently was not of a nature that would serve to alter that conclusion.
[13] In making the decision that Wu’s complaints had no reasonable chance of success, the Adjudicator noted the following:
The applicant was not able to point to anything beyond his own sincere belief as evidence that he was subject to discrimination by the respondents. The denial of service of which the applicant speaks, appears to be related to the applicant’s dissatisfaction with the answers provided to his questions. The applicant did not show differential treatment on the basis of the Code grounds alleged. The documents filed by the applicant included many email exchanges that show it would be more apt to characterize the communication between the parties as ending after a certain point.
Along with his Application, the applicant filed dozens of documents including many email exchanges he had over the years with the city’s planning office, with Paul Zuliani, the director of that office, and with the Ombudsman Toronto. The documents filed by the applicant, along with the Ontario Municipal Board decision of December 4, 2014 and Ombudsman Toronto report of March 12, 2019, indicate that the applicant has been pursuing this matter for several years, and that he was provided service by the respondents, however frustrating and unsatisfactory this service was to the applicant. These documents show that the respondents engaged with the applicant over several years. These documents also show that the applicant’s communication was not hindered by the fact that English is not his first language. The documents show few grammatical errors, and that the applicant was able to articulate his concerns clearly. The Ombudsman completed a thorough investigation following the applicant’s complaint regarding the city’s services.
As noted above, for an Application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his or her own suspicions, that could make out a link to the Code. I empathize with the applicant, and appreciate how the changes to the zoning by-laws had a disproportionate and seemingly unfair impact on his business. However, the Code does not provide protection against general allegations of unfairness, or bad treatment. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.
[14] Wu sought reconsideration of this decision. On April 29, 2022 the Adjudicator dismissed Wu’s request for reconsideration. In doing so, the Adjudicator provided reasons that set out the context for reconsideration and underscored the discretionary nature and exceptional grounds that should exist before the granting of such a request. The Adjudicator found that Wu simply was attempting to re-argue the case and had not identified how the decision sought to be considered conflicted with established HRTO jurisprudence or otherwise fit within the stated grounds for reconsideration.
[15] On October 18, 2021 and February 22, 2022 Wu filed additional complaints with the HRTO. These complaints contained allegations similar to those made in his previous complaints, but were directed this time at the City of Toronto Integrity Commissioner and City Councillor Nick Mantas, alleging that they had discriminated against him on the basis of race and place of origin contrary to s. 1 of the Code in relation to their lack of a satisfactory response to his communications with them about the zoning by-law and how it affected his property in what he viewed to be an unfair way.
[16] The HRTO provided Wu with Notices of Intent to Dismiss these additional complaints on the grounds that they fell outside the jurisdiction of the HRTO. The HRTO proceeded with a summary hearing in writing of that issue of jurisdiction as permitted under its procedures (see: Iyirhiaro v. HRTO and TTC, 2012 ONSC 3015). The Respondents to Wu’s complaints did not participate in this hearing.
[17] After reviewing and considering Wu’s written submission, on July 26, 2022, the Adjudicator found that there was no factual basis to link the alleged adverse treatment by the Integrity Commissioner and Councillor Mantas complained of by Wu to any grounds of discrimination prohibited by the Code. Accordingly, the Adjudicator dismissed the complaints.
[18] In coming to the conclusion that no jurisdiction existed to pursue or hear Wu’s complaint, the Adjudicator stated:
The Tribunal’s jurisdiction is limited to enforcement of the Code. The Code only prohibits actions that discriminate against people based on their enumerated ground(s) in a protected social area. This means that the Tribunal does not have jurisdiction over general allegations of unfairness unrelated to the Code. See Hay v. Ontario (Human Rights Tribunal), 2014 ONSC 2858 (“Hay”), Bello v. Toronto Transit Commission, 2014 ONSC 5535, and Groblicki, above.
To fall within the Tribunal’s jurisdiction, an applicant must provide some factual basis beyond speculation and/or a bald assertion, which links their ground(s) to the respondent’s actions and explains why they think that these actions are discriminatory in nature. See Hay, above.
In the Application and the submissions in response to the Notice the applicant asserts that his commercial property was re-zoned while other nearby similar properties were not, and that the respondent failed to respond to his complaints regarding the re-zoning of the property after it led to a decrease in its marketability and value.
The applicant states that in not addressing his re-zoning complaint, the respondent breached the Code of Conduct for City Councillors which requires them to serve their constituents in a conscientious and diligent manner. Even accepting this to be true for the purpose of this decision, the applicant does not identify an act of discrimination within the meaning of the Code, as he fails to provide any alleged factual basis, or even anything from which I could draw an inference, to link the respondent’s failure to respond to his re-zoning issue to the Code-enumerated grounds of race and place of origin set out in his Application.
As noted above, it is not enough for an applicant to assert that they have an enumerated ground and have received adverse treatment at the hands of the respondent. To come within the Tribunal’s jurisdiction, the applicant must provide some factual basis to link the respondent’s conduct to their Code-enumerated ground. A bald assertion that the adverse treatment they received was owing to their Code-enumerated ground is not enough to provide the required factual basis.
In the circumstances of this case, I find that the applicant has failed to provide a factual basis beyond a bald assertion to link his grounds to the respondent’s alleged failure to respond to his re-zoning issue, and accordingly, the Application does not fall within the Tribunal’s jurisdiction.
[19] Wu requested a reconsideration of the decision of the HRTO concerning his complaint against the Integrity Commissioner and Councillor Mantas. On August 12, 2022 the Adjudicatory dismissed his request on the basis that there were no compelling and extraordinary circumstances to warrant the discretionary remedy of reconsideration, nor had any circumstances been shown that would outweigh the public interest in finality.
[20] The applications for judicial review before us seek orders that these decisions of the HRTO be quashed.
Jurisdiction
[21] The court has jurisdiction to hear the applications pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.-1.
Standard of Review
[22] The standard of review of the decisions on these applications is one of reasonableness. If any discernible and discrete question of law is identified, the standard of review is correctness (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653).
[23] To the extent that any issue of procedural fairness has been identified, whether there has been any breach of procedural fairness is to be determined on a standard of correctness in light of the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.
Law and Discussion
[24] As Wu has made similar or substantially overlapping submissions with respect to the disposition of all of his complaints against the Respondents and the handling of them by the HRTO, they in large part will be considered and discussed together.
No Error of Law
[25] Wu submits that the provisions of the Code should be interpreted as guaranteeing a right to equal treatment with respect to government services, and that such guarantees should have been considered and applied by the Adjudicators separate from any right not to be discriminated against on protected grounds under the Code. He characterizes the alleged failure of the Adjudicators to do so as an error of law.
[26] Wu also argues that the Adjudicators erred by imposing a requirement upon him to show the existence of some factual basis to connect the alleged mistreatment and a protected ground under the Code before deciding the separate issue of whether his right to equal treatment had been violated. Accordingly, Wu argues that the Adjudicators’ application of the provisions of the Code are inconsistent with s. 15 of the Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 and is therefore an error in law.
[27] I agree with the submissions made on behalf of the Respondents that these submissions advanced by Wu demonstrate a misunderstanding of the fundamental requirements for establishing a complaint of discrimination under the Code as was set out in careful and detailed fashion in the reasons for the decisions under review. To establish and sustain a complaint of unlawful discrimination, a complainant must be able to establish a link between the treatment alleged and at least one enumerated protected under the Code. Wu was unable to do so.
[28] Despite making the observation that raising a Charter issue for the first time on the hearing of these applications for judicial review may not be available to him, I consider that there is no basis on the record before the panel to support a conclusion that Wu’s rights under the Charter have been violated by the application by the Adjudicators of their analysis, by adopting the available summary procedures to manage his complaints, or by arriving at their decisions.
The Decisions are Reasonable
[29] Wu submits that the decision dated February 28, 2022 is unreasonable because it fails to appreciate fully the issues raised in his complaints. Wu further submits that the Adjudicator in this and the subsequent decisions overlooked the inadequacy or absence of any response to his “key” questions. Wu characterizes that conduct as being discriminatory primarily on the basis of race and his poor command of spoken English. Wu asserted at the summary hearing that his belief that a Caucasian urban planner was treated differently is enough to prove discrimination against him such that his complaint ought to succeed. He argues that this evidence should have satisfied the standard of proof of discrimination on a balance of probabilities had it been applied.
[30] In the Respondents' submission, Wu has wholly failed to demonstrate how the Adjudicator's decisions fall outside the range of possible reasonable outcomes. None of his numerous communications with the City of Toronto Planning Department and Ombudsman in any way would suggest that his characteristics as protected by the Code played any role in the Respondents' actions or inactions.
[31] Reasonableness is a deferential standard of review grounded in the principle that certain questions that come before administrative tribunals do not lend themselves to one specific or particular result. Instead, they may give rise to a number of possible, reasonable conclusions.
[32] In Wu’s case, the Adjudicator was alive to his submissions and turned her mind to the many email communications Wu had submitted. She found that these communications could be characterized as “ending after a certain point”. She found that there was no evidence, circumstantial or otherwise, from which to conclude that Wu’s Code-protected characteristics played any role in the end result of his efforts to obtain relief from the by-law. In my view, these findings are supported by the record and are reasonable and deserving of deference from this Court.
[33] In my view, the decision to decline his request for reconsideration was likewise reasonable.
[34] Similarly, the subsequent decision of the Adjudicator (a different Adjudicator than the person who decided his first complaints) dated July 26, 2022 dismissing Wu’s complaints against the Integrity Commissioner and Councillor Mantas were reasonable. Again, the failure to establish a link between the conduct complained about and any ground of discrimination prohibited by the Code supports the Adjudicator’s conclusion that Wu’s complaints fall outside the statutory jurisdiction of the HRTO to hear and adjudicate.
[35] I consider that the denial of Wu’s request for reconsideration on the facts and record before the Adjudicator was likewise reasonable.
Procedural Fairness
[36] Wu submits that it was procedurally unfair to deal with his first complaint in summary fashion without requiring the Respondents to file any responses or to attend at the hearing.
[37] Wu further submits that it was procedurally unfair that the Adjudicators conducted the second hearing on jurisdiction in writing. Wu argues that this again denied him an opportunity to cross-examine the Respondents, make oral submissions and tender supporting evidence before the Adjudicator finally disposed of the applications. Wu submits that his complaints were clearly within the jurisdiction of the HRTO simply because he alleged discriminatory or otherwise unequal treatment contrary to s. 1 of the Code.
[38] The Respondents submit that Wu was given ample notice of the nature of the first hearing and was aware that he would not be able to conduct any cross-examination of the Respondents. Indeed, implicit in the Adjudicator’s conclusion that Wu’s complaints had no reasonable prospect of success even on the basis of his allegations at their highest would demonstrate that cross-examination of the Respondents in this case would not have been of assistance as Wu had failed to establish any discrimination under the Code that required a response.
[39] Wu was given full opportunity to make factual and legal representations before the Tribunal at the summary hearing. He filed dozens of documents, presumably in an effort to prove a link between the alleged actions of the Respondents and the grounds of discrimination he cited. The Adjudicator found that no such link could be identified and that Wu’s complaints had no chance of success. For these reasons, they were dismissed.
[40] The Adjudicator followed the procedure set out under Rule 13.2 of the HRTO’s procedural rules for dealing with the preliminary jurisdictional issue arising out of Wu’s additional complaints. Based on this procedure which provided for a hearing of the issue conducted in writing, and for which Wu provided written submissions as permitted, the Adjudicator came to the conclusion that there was no link between the alleged adverse treatment and a Code-protected ground. As such, Wu’s additional complaints did not fall within the HRTO’s jurisdiction.
[41] As has been observed by this Court, the HRTO must manage its volume of complaints in a way that promotes efficiency as well as fairness. In my view, the procedures employed by the HRTO and its Adjudicators in addressing Wu’s complaints at every stage were procedurally fair in all of the circumstances.
Bias
[42] There was no evidence adduced that either Adjudicator involved in hearing and deciding Wu’s complaints had demonstrated any actual bias. Accordingly, it is the concern of reasonable apprehension of bias that underpins this ground of review as advanced by Wu.
[43] The grounds for establishing a reasonable apprehension of bias must be significant and require convincing evidence to rebut the strong presumption of judicial (or quasi-judicial) impartiality. Mere suspicion is insufficient. Rather, a real likelihood or probability of bias must be demonstrated.
[44] In the apparent absence of convincing evidence of or basis for any reasonable apprehension of bias, Wu’s mere suspicions and his dissatisfaction with the decisions are not sufficient to discharge the heavy burden for demonstrating any reasonable apprehension of bias. The fairly common practice of reconsideration of a decision by the same Adjudicator does not in itself establish bias (see: Landau v. Ontario (Minister of Finance), 2012 ONSC 6926). There are no hallmarks of reasonable apprehension of bias on the part of either Adjudicator that have been demonstrated by the facts or the decisions in this case.
Conclusion
[45] For these reasons, these applications are dismissed.
Costs
[46] As the HRTO does not seek costs, no costs shall be awarded to it.
[47] The remaining Respondents have been successful on these applications and are entitled to costs. I note that these Respondents were represented by the same counsel who made written and oral submissions with respect to the issues raised. In all the circumstances, the Respondents (other than the HRTO) shall receive their costs payable by Wu in the aggregate amount of $6500.00, inclusive of all disbursements and applicable taxes.
Stewart J.
I agree _______________________________
Baltman J.
I agree _______________________________
Lococo J.
Released: November 3, 2023
CITATION: Wu v. City of Toronto and Toronto Ombudsman, 2023 ONSC 6192
DIVISIONAL COURT FILE NOS.: 289/22
606/22
DATE: 20231103
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Baltman and Lococo JJ.
BETWEEN:
Court File No. 289/22
Peter Wu
Applicant
– and –
Toronto Ombudsman, Paul Zuliani and City of Toronto Planning Department
Respondents
-and-
Court File No. 606/22
Peter Wu
Applicant
– and –
Toronto City Councillor Nick Mantas and Toronto Integrity Commissioner
Respondents
REASONS FOR DECISION
Stewart J.
Released: November 3, 2023