HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Derek Bertrand
Applicant
-and-
The Regional Municipality of Peel Police Services Board
and Michael Cook
Respondents
DECISION
Adjudicator: Jay Sengupta
Indexed as: Bertrand v. Peel Police Services Board
1This is an Application filed on September 3, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Applicant alleges discrimination in receipt of goods, services and facilities because of colour and sex. The applicant identifies as a black man and alleges that on September 5, 2008, he was approached, questioned, detained and assaulted by the respondents because of his colour and sex.
2The respondents have filed a Response in which they argue that the Application is barred by virtue of s. 34(11)(b) of the Code. They seek to have the Application dismissed.
3The Tribunal has received a Reply from the applicant addressing the arguments raised by the respondents.
4The Application is dismissed for the reasons that follow.
BACKGROUND
5The relevant sections of the Code are set out below:
34(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,
(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or
(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.
46(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
6Section 34(11)(b) bars an application to the Tribunal when a court has finally determined the issue of whether a person’s rights under the Code have been infringed or the matter has been settled. The respondents argue that is the case here. In support of their Request that the matter be dismissed, they have submitted a copy of the Statement of Claim filed by the applicant against the institutional respondent as well as the transcript of proceedings leading to the judgement of the court dismissing the claim.
7They allege that the Application is based on the same facts that formed the basis of his civil claim and that it is a clear attempt to re-litigate the issues that have been finally decided by the court.
8The documents show that the applicant filed a civil claim alleging that he was, among other things, discriminated against on the basis of his race by Michael Cook and another officer on September 5, 2008. Specifically, he alleges “assault causing bodily harm, excessive use of force, unlawful imprisonment, pain and suffering, violation of civil rights and racial discrimination”.
9In his Reply, the applicant does not dispute that a civil claim was filed by him or that a judgement was rendered by the Ontario Court of Justice, Small Claims Division. He also does not appear to dispute that the events leading to both proceedings are the ones that took place on September 5, 2008. However, he argues that the court has not finally determined whether his Code rights were infringed.
10He advances a number of arguments in support of this proposition including his assertion that it is not clear that the appropriate standard of proof was used by the court, that the court did not take into account human rights principles when considering whether he had suffered racial discrimination, that the court simply “guessed” at which point during the encounter he suffered discrimination and that his Application alleges discrimination on the basis of colour and sex, rather than race.
11The respondents refer to the transcript of proceedings and the oral ruling of the court. They argue that the court specifically turned its mind to the question of discrimination on the basis of race and point to the discussion of human rights case law contained in the court’s decision.
DECISION
12The arguments made by the applicant concerning the court having used the incorrect standard of proof have, in my view, no merit. The applicant does not offer any reasons for his assertion other than the absence of any language stating that the case was decided on a balance of probabilities.
13The transcript of proceedings also reveals that all of the events surrounding the encounter between the applicant and the police officers on the date in question were put before the court and considered.
14The civil claim alleges race discrimination. The judgment of the court reviews the applicant’s contention that he was unequally treated because he is a black man. The judge considered the facts and made a determination that racial profiling was not a factor in the detention and treatment of the applicant. In arriving at her conclusion, the judge explicitly referred to Tribunal case law on racial profiling by a police service. Although the Application lists the grounds as colour and sex rather than race, there is no meaningful difference between the claim of discrimination considered and rejected by the court, and the one before the Tribunal.
15The Legislature’s intention was to prevent re-litigation of a claim of discrimination already heard and decided upon by courts. Having reviewed the materials submitted by the parties, I am of the view that the subject matter of this Application is substantially the same as the matters put before the court that, upon consideration of human rights principles, dismissed the applicant’s claim.
16Accordingly, this Application is barred by virtue of s.34(11)(b) and is dismissed.
Dated at Toronto this 25th day of January, 2010.
“Signed By”
Jay Sengupta
Vice-chair