Bright Kyereme v. Windsor Police Service, 2009 HRTO 1850

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bright Kyereme

Applicant

-and-

Windsor Police Service

Respondent

DECISION

Adjudicator: Alan Whyte

Date: November 3, 2009

Citation: 2009 HRTO 1850

Indexed as: Kyereme v. Windsor Police Service

WRITTEN SUBMISSIONS BY

Bright Kyereme, Applicant ) Lily Tekle, Representative

Windsor Police Service, Respondent ) David M. Amyot, Counsel

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) which was filed on May 22, 2009. The Application alleges discrimination in the provision of goods, services and facilities on the basis of race, color, ancestry, place of origin, ethnic origin, sex and age.

2In its earlier Interim Decision, 2009 HRTO 1368, the Tribunal noted that the respondent raised a delay issue in its Response based on the fact that the Application was commenced beyond one year from the date of the incident. The Tribunal directed that the applicant provide submissions on this issue by September 11, 2009, that the respondent deliver submissions by September 23, 2009, and that the applicant was at liberty to file reply submissions by September 30, 2009.

3The applicant’s and respondent’s submissions were delivered in a timely fashion, however, the applicant’s reply submissions were not received until October 7, 2009. The respondent takes the position that the Tribunal should have no regard to these reply submissions due to their late delivery. Having reviewed the submissions, I find that they add nothing to the applicant’s main submissions and that the respondent would not be prejudiced by the Tribunal having regard to them.

4This Decision considers whether the Tribunal has jurisdiction to proceed with this Application in view of the late filing and, in particular, whether the delay in filing was incurred in good faith by the applicant.

The applicant’s position

5The Application pertains to a student event held at a University of Windsor pub on January 19, 2008 (“the incident”). It is alleged that in the early hours of the morning of January 20, the Windsor police attended at this event and proceeded to assault many of the attendees in the guise of attempting to control the crowd and, in particular, it is alleged that the police targeted several of the black attendees, including the applicant, for particularly rough behaviour. The applicant was ultimately arrested by the police, placed in jail, and released in the morning without charges being laid.

6The applicant states that he was upset, confused and bewildered by the actions of the police. Ultimately, he dropped out of school for the second semester, not returning until September 2008. For a time, he returned to his home in Hamilton in order to recuperate and receive medical attention. He submits that he was emotionally traumatized and scarred by the treatment he received at the hands of the respondent's officers.

7However, it appears that in the winter/spring of 2008, he functioned as a party promoter which involved him organizing events similar to the one on January 19, in the downtown Windsor area. He states that because he was involved in this activity, he did not wish to initiate a human rights complaint against the respondent as he feared retaliation by its members in relation to the events that he was planning.

8The applicant indicates that he was not initially aware that he had other legal options available to him (other than a complaint against the respondent under the Police Services Act) and he thought that his only recourse was a civil lawsuit. Although he was aware that other students were initiating human rights complaints against the respondent arising from the incident, he believed that if he did so he would be reprised against by the respondent given his activities as a party promoter.

9The applicant returned to school in September 2008 and focussed on his studies for the 2008/2009 academic year. He indicates that he considered initiating a human rights complaint against the respondent during this timeframe but, ultimately, he did not feel comfortable enough to do so until May 22, 2009. The applicant also submits that he was aware of actions being taken by the University through its President in the months following the incident which sought an independent investigation into the actions of the respondent's officers, and he anticipated that this process would produce some results for him, however it did not.

10The applicant alleges that his delay in filing the Application was incurred in good faith, and he further submits that the respondent has not suffered any substantial prejudice.

The respondent’s position

11The respondent points to a number of actions and statements by the applicant in the months following the incident which, it argues, demonstrate that the applicant was well aware of the fact that he could have initiated a human rights complaint against the respondent, but chose not to do so for no good reason. These include:

• A February 6, 2008 newspaper report in which the applicant indicates that he will be filing a complaint against the respondent (although it is not clear whether such complaint is a complaint under the Police Services Act or a human rights complaint);
• A student group called students against anti-black racism (SAABR) in which the applicant was a participant was formed shortly after the incident and was active in discussions with the respondent and the University of Windsor, in an effort to secure an investigation related to the actions of the respondent's officers;
• A demonstration was coordinated by SAABR on February 14, 2008 in which the applicant was a participant; in an article in the Windsor Star newspaper on February 15, 2008, the applicant discussed the actions of the officers and the functions of SAABR, one of which is to assist students in filing complaints with the Human Rights Commission (“the Commission”);
• In a February 20, 2008 article in The Lance newspaper, the applicant was quoted as saying “the lawyers told me to file a complaint, but I just haven't done it yet”;
• In an article in the Charlatan newspaper on February 28, 2008, the applicant indicates that he is working with a group identified as the USWA in filing a human rights complaint, and he indicates that as he was frustrated in his efforts to file a complaint under the Police Services Act, he has decided to file a complaint with the Human Rights Tribunal instead.

12With respect to the applicant’s submission that he was emotionally traumatized and as a result was prevented from filing the Application in a timely manner, the respondent points to Tribunal jurisprudence which suggests that the Tribunal will not accept broad assertions of medical and emotional factors without supporting evidence, in support of an argument that delay was incurred in good faith. In any event, the respondent states that the fact that the applicant was able to continue in his party promotion business and was able to return to his academic studies in the fall of 2008 suggests that any emotional impact that the incident had on him was short-lived.

13Regarding the applicant’s submission that he was fearful of initiating a human rights complaint against the respondent due to fears of reprisal, the respondent notes that he was aware that other students had filed similar complaints against the respondent and that they did not suffer any reprisal.

14It is further argued that the applicant's actions after the incident such as making public statements in newspapers and participating in demonstrations are inconsistent with the suggestion that he was fearful of reprisal. The respondent also submits that it went to great lengths after the incident to actively encourage any person involved in the incident to come forward and file a complaint for investigation.

15With respect to the timeframe of September 2008 to May 2009 during which the applicant was a student at the University of Windsor, the respondent submits that the applicant made a conscious and deliberate decision not to file a complaint due to his personal convenience, given that the applicant felt overwhelmed and needed to focus on his studies. After pointing out that the applicant's own submissions indicate that the applicant contemplated filing a complaint throughout the academic year, the respondent points to Tribunal jurisprudence which indicates that inconvenience, even severe inconvenience, is not sufficient to demonstrate that delay was incurred in good faith.

16With respect to the applicant’s suggestion that he was relying on the University's complaint process to secure some results for him, the respondent states that such submission is disingenuous in light of the fact that the University's complaint process was brought under the Police Services Act and not the Code, and that such processes are inherently different and involve significantly different remedies.

17The respondent points out that four students who were similarly situated to the applicant filed human rights complaints with the Commission in April of 2008, a fact of which the applicant must have been aware.

18Finally, the respondent submits that the numerous statements made by the applicant in the various newspaper articles suggest that he was well aware of the human rights complaint process within the first few weeks following the incident, and that therefore there was no need for him to abide the outcome of the University's complaint process.

DECISION

19In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal stated as that there is a fairly high onus on applicants to provide any reasonable explanation for a delay in filing an Application beyond the statutory one-year limitation period, while recognizing that there will be legitimate circumstances, sometimes related to the human rights claim itself, that justify the Tribunal in exercising the discretion under section 34(2) of the Code.

20Although the applicant indicated in his submissions that initially he was not aware of the fact that he could file a human rights complaint following the incident, it is clear from the newspaper articles mentioned above that he became aware of that process within the first few weeks following the incident. In the February 15, 2008, article he discusses the functions of SAABR, one of which is to assist students in filing complaints with the Commission, and in the February 28, 2008 article he indicates that he decided to file a complaint with the Tribunal. Consequently, it cannot be said that he was ignorant of his rights, which in any event, the Tribunal has indicated is not enough to establish good faith: see Lafleur v. Kimberley Scott, 2009 HRTO 1141.

21With respect to the applicant’s submission that he was so emotionally traumatized by the incident that he was unable to proceed with the filing of a complaint, I find that there is no evidence other than the applicant’s assertions to support this submission. Furthermore, it is clear that the applicant was actively engaged in various activities directed to highlighting the actions of the respondent's officers in the months following the incident, such as statements in the press and demonstrations. Such activities are not consistent with those of a person who was so significantly impacted by the incident that he was unable to proceed with filing a human rights complaint. That the applicant was able to engage in a party promotion business and return to school in the fall of 2008 also suggests that the applicant “was not disabled to the extent that [he] was not able to function”, a factor that the Tribunal found to be relevant in Imrie-Howlett v. Peel District School Board, 2009 HRTO 1296.

22The applicant submits that he feared reprisal from the respondent if he proceeded with a human rights complaint, given that his party promotion business was being conducted by him in the winter and spring of 2008 in downtown Windsor. Again, I find that such submission is inconsistent with the evidence, especially the applicant’s public participation in the activities of SAABR and his numerous statements about the incident in Windsor area newspapers.

23In addition, there is evidence that the respondent made numerous overtures to the community to invite any person who had been adversely affected by the actions of the respondent’s officers on January 19, 2008, to come forward and file a complaint for investigation. In fact, representatives of SAABR were invited to attend a Windsor Police Services Board meeting in May 2008, where their concerns about the conduct of the respondent’s officers were expressed.

24Regarding the period between September 2008 and May 2009, the applicant has provided no reasonable explanation as to why he did not proceed with the filing of a human rights complaint during that time. In fact, the applicant acknowledges that he contemplated filing such a complaint during this timeframe, but does not adequately explain why he did not proceed with such action. The only reasonable conclusion is that the applicant made a conscious decision in this timeframe to not file a human rights complaint. To the extent that such inaction on the part of the applicant was based on his desire to focus on his studies in the 2008/2009 school year, the Tribunal has made it clear that personal convenience will not support an applicant's position that his delay was incurred in good faith: see Handorf v. Babcock and Wilcox Canada, 2009 HRTO 1343.

25Finally, the applicant's argument that he wished to determine the outcome of the University’s complaint against the respondent under the Police Services Act simply does not make sense in the circumstances. The applicant knew or ought to have known that the outcome of such a complaint would involve different remedies and processes from those related to a human rights complaint filed by him personally. In any event, four other students that were involved in the SAABR group decided in April, 2008 to proceed with their own complaints to the Commission which suggests that persons within that group did not endorse the concept of waiting for the outcome of the university’s complaint under the Police Services Act, which was also filed in April 2008. It is also significant that the applicant’s statements in the press in February 2008 indicate that it was his intention to proceed with a human rights complaint, and no mention is made of any complaint being contemplated at that time by the University.

26I therefore find that the applicant has not met the onus imposed on him to satisfy the Tribunal that the delay in filing this Application was incurred in good faith. Having come to such conclusion, there is no need to address the issue of whether or not the respondent suffered substantial prejudice as a result of the late filing.

27The Application is therefore dismissed.