Ghafourian v. Toronto Police Services Board, 2010 HRTO 1620

Human Rights Tribunal of Ontario

B E T W E E N:

Farideh Ghafourian

Applicant

-and-

Toronto Police Services Board, William Blair, B. Steed, M. Nunno and M. Powell

Respondents

DECISION

Adjudicator: Mark Hart

Date: July 29, 2010

Citation: 2010 HRTO 1620

Indexed as: Ghafourian v. Toronto Police Services Board

APPEARANCES BY

Farideh Ghafourian, Applicant ) On her own behalf

Toronto Police Services Board, ) David Gourlay, Counsel Respondent )

William Blair, B. Steed, M. Nunno , ) Naomi Calla, Counsel and M. Powell, Respondents ) and Damian Hornich, ) student-at-law

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), dated April 23, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on February 15, 2008.

2The Application in this matter alleges discrimination in respect of services by the respondents because of disability, arising out of the respondents' response to certain alleged incidents reported to the police by the applicant.

3The purpose of this Decision is to address the request by the respondents for dismissal of the Application pursuant to s. 45.1 of the Code on the basis that the substance of this Application has been appropriately dealt with as a result of the dismissal of a public complaint filed by the applicant under the Police Services Act, R.S.O. 1990, c. P.15 ("PSA").

Background

4On September 18, 2007, the applicant filed a complaint with the respondent Board under the PSA in relation to the conduct of the personal respondents Steed, Nunno and Powell as well as several other officers who are not named as respondents to this Application.

5The applicant's PSA complaint alleges that in November 2006, she noticed some documents missing from her home, and called 32 Division of the Toronto Police Service (the "TPS") to report this. Some time later, she called 32 Division again to report that her computer was being hacked into and files were being deleted and that another document was missing from her home. Some time later, she called 32 Division again to report that she had noticed a cut phone wire hanging from her basement ceiling, and she alleges that she was told to contact Bell Canada. The applicant also alleges that she was asked whether she had met with her family doctor or social worker, which the applicant says she found to be very improper and unprofessional.

6Some time later, the applicant says that she called 32 Division again to report her belief that her phone line was being tampered with. She alleges that the officer was reluctant to listen to her or take a report, and asked if her children were aware of the matter. On July 6, 2007, two police officers attended at the applicant's home to take a report. The applicant says that she asked about the result of her other reports, and was told that those reports were closed based on her children's and ex-husband's statements indicating that the applicant was paranoid, on medication and not well. The applicant alleges that her reports were improperly dismissed and her safety jeopardized based on the statements of her ex-husband and children and the officers' improper assumption that she was paranoid. On July 7, 2007, the applicant says that she reported her belief that there were suspicious filters attached to her phone and an officer attended her home to investigate. She alleges that this officer was very impatient and closed her file based on statements of her ex-husband and children that she was unstable.

7The applicant's PSA complaint alleges that the respondent officers had falsely reported her to be paranoid and mentally ill, and that one of the respondent officers advised that she seek psychiatric help and/or the help of a social worker. The applicant's PSA complaint further alleges that two of the respondent officers prepared reports that included unprofessional and improper diagnoses and that did not properly reflect what she had told these officers.

8Upon receipt of the applicant's complaint under the PSA, it was reviewed by an Inspector in the Professional Standards – Complaints Administration Department of the TPS. After considering the information in the applicant's complaint, the Inspector wrote to the applicant to advise her that no further action would be taken in regard to her complaint pursuant to s. 59(3) of the PSA, which empowers the chief of police to not deal with any complaint that is considered to be frivolous, vexatious or made in bad faith. The applicant was advised of her right to request a review of this decision by the Ontario Civilian Commission on Police Services ("OCCPS").

9The applicant exercised her right to have the TPS's decision reviewed by OCCPS. On October 19, 2007, OCCPS wrote to the TPS to request the investigation file pertaining to the applicant's complaint under the PSA so that it could perform its review.

10A panel of OCCPS members reviewed the applicant's PSA complaint, the correspondence she sent to OCCPS, the TPS complaint file and the decision by the TPS Inspector. After conducting its review, the OCCPS panel determined that there were not sufficient grounds or reasons to conclude that the applicant's complaint warranted further action. The OCCPS panel advised the applicant that it had determined that the appropriate designation of her complaint was under s. 64(6) of the PSA, which indicates that there was insufficient evidence to support the allegation of misconduct. This disposition of the applicant's complaint replaced the determination of the TPS Inspector under s. 59(3) of the PSA.

Request for Dismissal under s. 45.1 of the Code

11Section 45.1 of the Code provides as follows:

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.

12In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it is helpful to consider s. 45.1 in two parts: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the application.

Was there another "proceeding"?

13In Qiu v. Neilson, 2009 HRTO 2187, the Tribunal found that a police investigation of a complaint of police misconduct under the PSA and a subsequent review by OCCPS constitutes a "proceeding" within the meaning of s. 45.1 of the Code. See also Pamula v. Ontario Provincial Police, 2010 HRTO 73.

14For all of the reasons set out in those decisions, I find that the public complaints process under the PSA and the subsequent review by OCCPS constitutes a "proceeding" within the meaning of s. 45.1 of the Code.

Was the subject-matter of the Application appropriately dealt with?

15The issue on the second part of the test under s. 45.1 of the Code is whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was in pith or essence substantially the same, and whether the matter raised was "appropriately dealt with" in the other proceeding: see Qiu, supra.

16There is no question that this Application arises from the same facts that provided the basis for the PSA complaint.

17With regard to whether the substance of the issues raised in each forum was in pith and substance the same, I note that the PSA complaint filed by the applicant alleges police misconduct and that there was an express finding by OCCPS that her complaint did not provide sufficient evidence to support the allegations of misconduct. As noted in Qiu, supra, the definition of misconduct under the PSA includes a failure to treat or protect a person equally without discrimination because of disability.

18The pith and substance of the issue raised by the applicant in her PSA complaint is that the police officers at issue engaged in misconduct by discounting or disbelieving her reports that her documents, computer and phone had been tampered with on the basis of their belief that she has a mental illness. This is precisely the same issue raised by the applicant in her human rights complaint and in this Application.

19This leaves the question of whether the allegations raised in the human rights complaint were "appropriately dealt with". This question does not require me to make a finding as to whether or not I agree with the findings of the police or OCCPS review. Rather, the question for me is whether the police and OCCPS reviews were conducted using a fair process in which the applicant was afforded an opportunity to present her allegations and supporting evidence and where there is nothing on the face of the material to indicate that these bodies failed to recognize human rights principles in reaching the determinations that they did.

20I find that the police investigation and OCCPS review were conducted using a fair process, and that the applicant was afforded an opportunity to present her allegations and supporting evidence. In particular, the OCCPS panel received and reviewed the full complaint file and considered the applicant's submissions, and made a determination as an independent body that there was insufficient evidence to support the applicant's allegations of police misconduct.

21I further find that there is nothing to indicate that either the police or OCCPS reviews failed to recognize human rights principles in reaching the determinations that they did. In particular, the determination made by the OCCPS panel was made with due consideration of the evidence before it and necessarily required the panel to consider the very allegation at issue in this proceeding, which is whether the applicant was discriminated against by the police officers because of any actual or perceived mental disability. As a result, I find that the substance of this Application was appropriately dealt with by the proceeding under the PSA, within the meaning of s. 45.1 of the Code.

22For all of the foregoing reasons, the Application is dismissed.