Herman v. Ottawa Police Service, 2009 HRTO 1262

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rivka Herman

Applicant

-and-

Ottawa Police Service and Debbie Palmer

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: August 13, 2009

Citation: 2009 HRTO 1262

Indexed as: Herman v. Ottawa Police Service

1In this Application filed on January 10, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the personal respondents Yana Amis (“Ms. Amis”) and Debbie Palmer (“Sergeant Palmer”) made a number of comments about her which the applicant alleges were discriminatory during an interview with another individual conducted in October 2005. She also alleges that neither Sergeant Palmer or Ms. Amis swore oaths during the interview and that the interview was improperly conducted and lacked procedural fairness. Sergeant Palmer conducted the interview of behalf of the respondent Ottawa Police Service. Ms. Amis attended the interview with the other individual and translated that individual’s information into English. It appears that following that interview, the applicant was criminally charged with various offences including harassment. Following a criminal trial of those charges, the applicant was found guilty and sentenced.

“Services” within the meaning of the Code

2Ms. Amis submits that she was not providing services to the other respondents as a court or police interpreter. She denies making any discriminatory comments but submits, in the alternative, that if they were made she was not providing services within the meaning of the Code. She submits that she attended the October 2005 interview with the other individual, at the other individual’s request, on a voluntary and pro bono basis.

3In its Interim Decision, 2009 HRTO 974, the Tribunal requested submissions from the applicant to explain how her allegations against Ms. Amis fell within the jurisdiction of the Tribunal because it was not clear that what the applicant alleged against Ms. Amis could constitute discrimination with respect to services under the Code. The Tribunal received the applicant’s submissions on July 24, 2009, and Ms. Amis’ submissions on July 28, 2009.

4The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination in goods, services and facilities on the basis of certain protected grounds listed in the Code. It does not have a general power to inquire into all aspects of society and all difficulties and encounters that an individual experiences in life.

5The applicant’s allegations about Ms. Amis arise because Ms. Amis voluntarily attended the police station with another individual in October 2005 and voluntarily interpreted some or all of that individual’s information into English during that individual’s interview with Sergeant Palmer. Ms. Amis did not attend as an agent of the other respondents, was not paid by the respondents for her attendance, and did not have a relationship with the applicant.

6In Cameron v. Leon, 2009 HRTO 1011, an applicant’s allegations related to testimony that the respondent gave as a witness in a family law proceeding in Superior Court between that applicant and his former spouse. In that case, the Tribunal found that the relationship between the applicant and the respondent was not covered by any of the social relationships specified in the Code. In dismissing the Application, the Tribunal stated at para. 4:

The Tribunal does not have a general power to inquire into all claims of unfair treatment. Its jurisdiction is based on the provisions of the Code, which prohibits discrimination in specific societal relationships such as the provision of goods, services and facilities, housing, contract relations and employment. The Code does not regulate relationships between individuals which do not have a basis in one of these social areas.

7On the basis of the material before me, I cannot find that the applicant’s allegations about Ms. Amis are covered by any of the social relationships specified in the Code. Therefore, the Tribunal does not have the power to decide the allegations in the Application relating to Ms. Amis. The Application against Ms. Amis is dismissed and her name is removed from the style of cause. The Application against Ottawa Police Service and Sergeant Palmer is continued.

Is there a prima facie case?

8The applicant, who self-identifies as a Jewish lesbian from Israel, alleges she was discriminated against on the basis of ancestry, place of origin, citizenship, ethnic origin, creed and sexual orientation in goods, services and facilities by the respondents. She references comments that were allegedly made during the October 2005 police interview and states that she obtained a transcript of the October 2005 police interview, but does not provide a complete copy of that transcript. The remaining respondents, Ottawa Police Service and Sergeant Palmer, assert that, even assuming the facts in the Application are true, the Application does not disclose a prima facie violation of the Code and the Application should be dismissed.

9The Tribunal will schedule a half-day conference call hearing to hear the parties’ submissions on the issue of whether, even accepting all the facts described, they amount to discrimination in the area of goods, services and facilities.

10Rule 1.7(p) of the Tribunal’s Rules permits the Tribunal to:

require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form.

11In my opinion, having a copy of the transcript would be of assistance during the conference call hearing and the applicant is ordered within seven days of the date of this Interim Decision to provide to the respondents and file with the Tribunal a complete copy of the transcript.

12If any party wishes to rely on any additional written materials (including written submissions, documents or case law) or facts not already before the Tribunal, they must deliver such additional material to the other parties and file it with the Registrar within 21 days of the date of this Interim Decision. Following the conference call the Tribunal will determine whether there is a basis to proceed with the Application, and may make further directions.

Timeliness of the Application

13The Application in this matter appears to have been filed more than three years after the October 2005 police interview, the incident to which the Application relates, was conducted. It also appears to have been filed more than one year after the applicant’s criminal trial commenced. During the trial, the applicant raised concerns about the October 2005 police interview.

14Section 34 requires that an Application be filed within one year of the date of the last incident unless the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The section states:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) (a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

15During the conference call hearing described in para. 9, the Tribunal will hear submissions from the parties on whether the Application is timely and whether any delay in filing the Application was incurred in good faith.

Should the Application be dismissed under s. 45.1 of the Code

16The respondents ask that the Application be dismissed under s. 45.1 of the Code, which provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

17The respondents allege that the applicant’s concerns about the October 2005 police interview were addressed and determined during her criminal trial. The respondents submit that on the second day of the applicant’s criminal trial, she brought to the Court’s attention her concerns about the October 2005 police interview. The respondents claim that the Court ordered an adjournment of the criminal trial and an outside agency was contracted to accurately transcribe the sworn video statement. When the trial resumed in January 2008, the Court considered the newly transcribed evidence and found the applicant guilty of the criminal charges.

18During the conference call hearing, the Tribunal will also hear submissions from the parties on whether the Application should be dismissed under section 45.1 of the Code because the criminal trial appropriately dealt with the substance of the Application.

Order

19The Tribunal makes the following orders:

a. The Application against Yana Amis is dismissed and the style of cause amended accordingly;

b. Within seven days of the date of this Interim Decision, the applicant is required to provide a copy of the transcript from the October 2005 police interview to the respondents and file it with the Tribunal;

c. The Tribunal will schedule a half-day conference call hearing to hear the parties’ submissions on:

i) Whether the allegations, which are presumed to be true for the purpose of this argument, amount to discrimination in the area of goods, services and facilities?;

ii) Whether the Application is timely or whether any delay was incurred in good faith?;

iii) Whether the Application should be dismissed under section 45.1 of the Code because the criminal proceeding appropriately dealt with the substance of the Application?

20The following directions shall apply to the conference call hearing:

a. The applicant should be prepared to proceed first at the conference call hearing, by responding to the written arguments of the respondents on the above questions.

b. Any party that wishes to rely on any written materials (including written submissions, documents or case law) or rely on any facts not contained in the Application, Responses or Reply, Request for Order During Proceedings and Response to a Request for Order During Proceedings must deliver them to the other parties and file them with the Registrar within 21 days of the date of this Interim Decision.

21I am not seized of this matter.