Deveaux v. Regional Municipality of Niagara Police Services Board, 2010 HRTO 1347

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Deveaux

Applicant

-and-

The Regional Municipality of Niagara Police Services Board and Ministry of Community Safety and Correctional Services

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: June 15, 2010

Citation: 2010 HRTO 1347

Indexed as: Deveaux v. Regional Municipality of Niagara Police Services Board

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), involves allegations of discrimination on the basis of race, sex, and sexual orientation in the provision of goods, services and facilities.

2The applicant is alleging that he was “discriminated, sexually degraded, tormented and tortured” by the respondents. He also alleges that a death threat was made against him. Later in the Application, he writes that he was “discriminated for my sexual orientation”.

3The Regional Municipality of Niagara Police Services Board (“Niagara Police”) filed a Response in which it denies the allegations.

4The Ministry of Community Safety and Correctional Services (“Ministry”) filed a Response in which it indicates that it is not able to provide a proper, detailed Response in the circumstances. The Ministry states that the applicant has not provided sufficient particulars to allow for a meaningful response or to support a prima facie case of discrimination. This respondent has also filed a Request for an Order During Proceedings (“Request”) seeking the early dismissal of the Application because it is outside the Tribunal’s jurisdiction (power to decide). This respondent argues that while the applicant has identified grounds of discrimination, none of the allegations (even if they are accepted) establish differential treatment or a violation of the Code.

5In an earlier Interim Decision, 2010 HRTO 465, the Tribunal denied the Ministry’s Request, holding that, read together, the Application and the Reply contain allegations which relate to the Code and which are within the Tribunal’s jurisdiction to decide.

6On March 8, 2010, the Ministry filed a letter with the Tribunal (and provided a copy to the other parties) in which it points out that the Ministry is separate and distinct from the Niagara Police. It argues that the allegations contained in the Application (and clarified in the Reply) relate only to the Niagara Police and incidents which occurred prior to the applicant’s admission to the detention centre. The Ministry argues that there are no allegations against it under the Code and, therefore, the Application should be dismissed against the Ministry. The Ministry also requests an extension of time to file an amended Response.

7In a second Interim Decision, 2010 HRTO 989, I concluded that the Ministry’s letter raised a serious issue that was not addressed in the earlier Interim Decision. In the circumstances, I held that it was appropriate to reconsider the first Interim Decision (pursuant to Rule 26.9 of the Tribunal’s Rules of Procedure), but only as it related to:

a. the refusal to dismiss the Application against the Ministry; and

b. whether the applicant must provide particulars of its allegations against the Ministry.

8I invited the applicant to provide written submissions regarding these issues and advised that, if he failed to provide written submissions, the Tribunal might determine the issues based on the materials already filed.

9The applicant has not filed written submissions and the time for doing so has elapsed. Accordingly, my decision is based on the materials already filed with the Tribunal.

10In the Application and letters attached to the Application, the applicant makes the following allegations regarding the Ministry:

a. that the applicant was “tormented & tortured... by NDC guards”;

b. that the guards in the detention centre verbally and physically abused him and severely twisted his arm; and

c. that the guards required that the applicant remove his clothing and bend over. The applicant feared he would be sexually assaulted.

11In my view, it can reasonably be understood from the information contained in the Application that the applicant is alleging that, but for his sexual orientation, he would not have been treated in the manner described above.

12The applicant has also identified race and gender as grounds of discrimination, although he does not seem make any specific allegations relating to those two grounds.

13I find that the Application does contain allegations against the Ministry which relate to the Code and are within the Tribunal’s jurisdiction to decide. Further, I find that these allegations, if made out, could form the basis of a finding of discrimination.

14The Ministry’s Request to Dismiss is denied. At this stage of the proceedings, the applicant is not required to provide further particulars. While there is some ambiguity to the applicant’s allegations, I find that the Application contains sufficient information to allow the Ministry to file a Response that meets the requirements of the Rules. The Ministry may reserve the right to provide additional information, once particulars, if any, are forthcoming.

15The Ministry’s Request for an extension of time in which to file an amended Response is granted. Within twenty days of the date of this Interim Decision, the Ministry may provide to the other parties and file with the Tribunal an amended Response.

16Fourteen days after the filing of the Ministry’s amended Response, the applicant may deliver to the other parties and file a Reply.

17I am not seized of this matter.