HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Saverio Verduci

Applicant

-and-

Farideh Irandoust, Kathryn Rippey, Olga Cook,

Jeff Blair and William Blair

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: July 7, 2010

Citation: 2010 HRTO 1473

Indexed as: Verduci v. Irandoust

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on July 6, 2009, in which he alleges discrimination on the basis of race and ethnic origin in the provision of goods, services or facilities. The applicant alleges that the respondents, all of whom are employees of the Toronto Police Services (“TPS”) or the Ontario Civil Commission on Police Services (“OCCPS”), discriminated against him by issuing a ticket to him for failing to wear a seatbelt and by then failing to appropriately consider and investigate his claims that he was, in fact, wearing a seatbelt at all material times. This Interim Decision addresses the respondents’ Requests for an Order During Proceedings to dismiss the Application.

BACKGROUND

2The Application alleges the applicant was stopped on September 13, 2008, and issued a ticket for not wearing a seatbelt by Police Constable Jeff Blair of the TPS when he was, at all times, wearing a seatbelt. The Application states that Constable Blair’s notes from the incident include a reference to the applicant wearing “bright, white, unzipped Italian spring jacket” and driving a “yellow Porsche” which, in the applicant’s view, indicate that the applicant was discriminated against “either due to the type and/or color of my car, my ethnicity, race or some or all of the above and issued a ticket as punishment without cause. The instrument of the discrimination was the seat belt ticket”.

3In a letter to the TPS dated September 14, 2008, the applicant lodged a formal complaint about Constable Blair’s actions. In a letter to the applicant dated October 8, 2008, Inspector Olga Cook, the Inspector of Professional Standards - Complaints Administration of the TPS, indicated that the applicant’s complaint had been reviewed and had been determined not to have indicated any manner of conduct which warranted an investigation pursuant to section 59(3) of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”), as it then was. At the relevant time, section 59(3) of the PSA allowed a chief of police to not deal with a complaint considered to be frivolous, vexatious or made in bad faith. Inspector Cook indicated in her letter that the applicant’s concerns about the issuance of a provincial offences ticket would be more appropriately addressed in a court having jurisdiction over such matters. She also indicated that the applicant had the right to request a review of her decision by the OCCPS.

4The applicant requested a review by the OCCPS. In a letter to the applicant dated February 5, 2009, Farideh Irandoust, a case manager for the OCCPS, indicated that a panel composed of OCCPS members had reviewed the applicant’s file, which included the applicant’s complaint, correspondence provided by the applicant to the OCCPS, the TPS complaint file and the decision of Inspector Cook, and had determined that the decision of Inspector Cook was reasonable and that there were insufficient grounds or reasons to conclude that the applicant’s complaint required further action. The letter advised the applicant that under section 72(12) of Part V of the PSA as it then was, the OCCPS decision is final and binding and will not be reviewed by the OCCPS and that accordingly, the OCCPS had closed the applicant’s file.

5In a letter to the applicant dated February 19, 2009, Kathryn Rippey, a senior investigator with the OCCPS, responded to a letter the applicant had written on February 17, 2009. Rippey indicated that the OCCPS was aware of and had taken note of the concerns outlined in the applicant’s February 17 letter but this did not change the OCCPS decision.

6The Application alleges that after the TPS and OCCPS had rendered their decisions, the applicant attempted to ask Inspector Cook, Farideh Irandoust and Kathryn Rippey to clarify what information had been considered by the TPS and the OCCPS in determining that his complaint would not be pursued. The applicant appeared to be specifically concerned with whether Constable Blair’s notes referring to the applicant wearing a bright, white, unzipped Italian spring jacket and driving a yellow Porsche had been considered. These notes are not referred to in the applicant’s complaint and it appears that the applicant may have only obtained copies of these notes after having filed his complaint with the TPS. The Application states that the applicant received no response to his inquiries. The Application further alleges that the applicant attempted to contact Chief Blair about his concerns about the complaints process and received no response.

REQUESTS FOR AN ORDER DURING PROCEEDINGS

7A Request for an Order During Proceedings was filed on behalf of respondents Farideh Irandoust and Kathryn Rippey requesting that the Application be dismissed against them. This request, first filed on August 26, 2009, and later re-filed on October 9, 2009, submits that the Application in relation to them is, in essence, an attempt to challenge the formal decision of the OCCPS of February 5, 2009. These respondents submit that the decision of OCCPS, a statutory administrative tribunal, is not a service under the Code and as such the Tribunal has no jurisdiction in relation to the Application against them. This submission relies on the Tribunal decisions in Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99 and Christianson v. Ontario (Community Safety and Correctional Services), 2009 HRTO 752, but it predates the recently released Tribunal decision in Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765. In the alternative, the request submits that the applicant has not explained how the actions of Irandoust and Rippey, in exercising their administrative functions, denied him services based on a prohibited ground of discrimination.

8A Request for an Order during Proceedings was made on behalf of respondents Jeff Blair, Olga Cook and William Blair. These respondents also requested that the Application be dismissed on the grounds that the Application fails to establish a prima facie case of discrimination against any of these three respondents. The Request submits that the reference to the applicant’s clothing and make/colour of car does not amount to conduct that is discriminatory in nature.

9Both Requests for an Order during Proceedings were deferred in light of the applicant and the respondents Jeff Blair, Olga Cook and William Blair indicating a willingness to participate in mediation. However, on April 9, 2010, the respondents Jeff Blair, Cook and William Blair filed a further Request for an Order during Proceedings requesting that the Application be dismissed under section 45.1 of the Code on the basis that the decision of the TPS and subsequent review by the OCCPS constitute a proceeding that has already appropriately dealt with the substance of the Application. These respondents also indicate that they are no longer prepared to participate in mediation. On April 21, 2010, the respondents Farideh Irandoust and Kathryn Rippey filed an e-mail requesting that the Request for an Order during Proceedings that they filed on October 9, 2009, be considered immediately as well.

10The applicant has not filed a response to the recent Request for an Order during Proceedings seeking a dismissal under section 45.1 of the Code. The applicant did file a Reply on November 21, 2009, in which he stated that he disagreed with the two earlier Requests for an Order during Proceedings filed by the respondents on the grounds that his allegations had not been met.

DECISION

11Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties an opportunity to make oral submissions. In the circumstances, a half-day hearing will be scheduled to address the preliminary issues raised in the Requests for an Order during Proceedings. At the hearing the parties should be prepared to provide submissions and, if necessary, evidence on the following issues:

i. Should the Tribunal dismiss the Application in whole or in part, pursuant to section 45.1 of the Code because the OCCPS has appropriately dealt with the substance of the Application. The parties should address whether the OCCPS decision constitutes a proceeding under section 45.1 of the Code and if it is a proceeding whether it appropriately dealt with the substance of the applicant’s Application.

ii. Do the events in the Application raise allegations of discrimination on a prohibited ground in relation to each of the five personal respondents? Does the Application establish a prima facie case of discrimination against each of the five personal respondents? That is, if the applicant’s allegations about the actions taken by each of the respondents are accepted as true, (absent any answer from the respondents) do they support a finding that the Code has been violated?

iii. Is the Application against Farideh Irandoust and Kathryn Rippey outside the Tribunal’s jurisdiction because their alleged conduct as set out in the Application does not fall within the ambit of a service under the Code?

12If any party intends to rely upon documentary material, legal authorities or submissions not already included in the Tribunal’s file, it shall deliver such materials to the other parties and file them with the Tribunal no later than 14 days before the scheduled hearing. If any party intends to call witnesses regarding these preliminary issues, it shall deliver to the other parties and file with the Tribunal a letter setting out the name of the witness and a summary of the witness’s intended evidence by the same deadline.

[13] The Tribunal draws the applicant’s attention to the Applicant’s Guide and the Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario, available on the Tribunal’s website or from the Registrar’s office. The Tribunal’s decisions are found at www.canlii.org.

14I am not seized.

Signed at Toronto, this 7^th^ day of July, 2010.