Cook v. Ottawa Police Services Board, 2010 HRTO 1675

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne Cook Applicant

-and-

Ottawa Police Services Board and David Merkel Respondents

INTERIM DECISION

Adjudicator: Mary Anne McKellar Date: August 12, 2010 Citation: 2010 HRTO 1675 Indexed as: Cook v. Ottawa Police Services Board

APPEARANCES

Wayne Cook, Applicant ) On his own behalf Ottawa Police Services Board, Respondent ) David Patacairk, Counsel

Introduction

1This is an Application under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). It was filed with the Tribunal on June 29, 2009. The underlying complaint to the Commission was filed on June 19, 2007.

2This Interim Decision deals with a Request by the respondents that the Application be dismissed on the basis of section 34(11) of the Code. I entertained the oral submissions of the parties on this issue on May 27, 2010.

Scope of Submissions

3At the risk of over-simplification, for the purposes of these comments on the proper scope of the submissions before me, it is sufficient to note simply that section 34(11) bars an application to the Tribunal where the applicant has commenced a civil action seeking relief in respect of an infringement of the Code.

4The Tribunal usually determines a request for dismissal under section 34(11) of the Code on the basis of written submissions filed by the parties. The parties in this case were directed to file such submissions. The respondents did so. The applicant did not, although he filed extensive written materials about the substance of his claims that the Code has been contravened.

5At the outset of the hearing on May 27, 2010, it became apparent that the applicant had not received the written submissions dated September 22, 2009, previously filed by counsel for the corporate respondent. The personal respondent, David Merkel, was at that time represented by his own counsel, who filed written submissions on his behalf dated September 9, 2009. These submissions do not indicate on their face that copies of them were delivered to the applicant.

6The applicant confirmed verbally that he had understood the purpose of the May 27, 2010 hearing was to address the application of section 34(11) to his Application. Notwithstanding he had not received the submissions, the applicant indicated he was prepared to proceed and address the section 34(11) issue.

7I made copies of both sets of submissions (including two short Tribunal decisions referred to in them) for the applicant, and it was agreed that after counsel for the respondents made his oral submissions, we would take a longer than normal recess before the applicant responded so that he might have an opportunity to review the written material.

8Following the recess, the applicant presented his own submissions. Prior to this point, the respondents of course would have had no notice of what positions the applicant might take in opposition to their Request. The applicant relied on one decision of the Tribunal in the course of his presentation, and it had similarly not been identified to the respondents in advance.

9At the conclusion of his submissions, the applicant suggested that he had been prejudiced by late receipt of the respondents’ submissions and could not comment on the caselaw referred to in them. I suggested that he have until June 4, 2010 to file any comments he might have about that caselaw and he agreed that that would be fair. He also agreed that the crux of the determination I have to make with respect to the application of section 34(11) is a factual one: does his civil action allege an infringement of the Code by the respondents that is duplicative of the infringements he alleges in his Application?

10The day after the hearing, the applicant wrote to the Tribunal, repeating his assertion of prejudice, and taking the position that I should “exclude [the respondents’ written submissions] from consideration for any ruling”. The applicant did not make any further submissions with respect to that caselaw, but repeated his reliance on the decision he had referred me to in his oral submissions. The applicant also requested that I defer my consideration of this Application pending the outcome of another Application he had filed with the Tribunal and which he identified as file 2009-04315-I.

Parties’ Positions

11The respondents’ position is that this entire Application is barred pursuant to section 34(11) of the Code.

12The applicant’s primary position is that no part of the Application is barred, and his alternative position is that section 34(11) only operates to bar that part of his Application dealing with his treatment while incarcerated on March 19 and 20, 2007.

Analysis

13I start by addressing the applicant’s request to defer this Application. The respondents have not been asked for their position on this issue, but that position is now irrelevant in any event. On June 9, 2010, the Tribunal (differently constituted) issued a Decision, Cook v. Ontario Human Rights Commission, 2010 HRTO 1308, in which it dismissed the Application in Tribunal File No. 2009-04315-I. There is therefore no other extant proceeding to which this one might be deferred.

14I turn now to the issue that was argued before me. I do not accept the applicant’s contention that I should exclude the written submissions filed by the respondents from my consideration. As indicated earlier, all the parties before me agreed that the question of whether section 34(11) of the Code bars this Application (or any part of it) is essentially a factual determination based on a comparison of the pleadings in the civil action the applicant commenced against these respondents and the pleadings (i.e. the complaint) in this Application. The respondents’ written submissions should have been sent to the applicant at the time they were filed with the Tribunal. They were, however, extremely short (2½ pages), consisting almost entirely of a reproduction of sections of the Code and brief reference to the two leading decisions of the Tribunal on the question of the application of section 34(11). Any disadvantage to the applicant that occurred as a result of not having those submissions in advance was remedied by opportunities provided to him at the hearing to review them over a longer recess, and to have an extended period of time after the hearing in which to file any further observations he might have had. The applicant himself agreed at the time that those measures would be sufficient.

15The complaint underlying this Application was made on June 19, 2007. It alleges discrimination in services on the basis of disability, sex and unlawful reprisal, and indicates that this occurred on March 19 and 20, 2007. The allegations in the complaint are the following:

On March 19, 2007, I was arrested by Ottawa Police, while conducting a “peaceful protest” as guaranteed by the Charter of Rights & Freedoms. I believe my arrest was repraisal [sic] for filing an Ontario Human Rights complaint (File #190220007JART-6YKQAX). The complaint is against the National Judicial Institute and I was at a “peaceful protest” at NJI, when arrested by Ottawa Police, based on a warrent [sic] for arrest, which originated with Detective Dave Merkel. I was taken into custody at 11 am, on March 19, 2007. Only after, approx. 9 hours, did Det. Merkel address my diabetes. Det. Merkel told staff in the cells, that I was diabetic and a female guard responded “He’s not going to be finicky, is he!” No accomodation [sic], that I had requested was made over 24 hours in custody.

Det. Merkel collected “gender profiling” data which had no use, other than statistical. I find profiling, whether based upon race or gender is discriminatory. Ottawa police policies & practices are discriminatory as males are treated differently than females, divorced males are discriminated against, given that N.J.I. and Ottawa Police have engaged in repraisal, my arrest being based upon a complaint from N.J.I. staff, I fear that I will be subject to ongoing retaliation (fabricated charges, malicious prosecution). In 1988, I reported to Ottawa Police that my former spouse had stated her intent to make a “parental abduction” (282(1) Criminal Code of Canada). My ex spouse stated “I will take the children, and you will never see them again (July 1988). Recently, Ottawa Police have commenced an investigation of “parental abduction”, OPS FILE #07-161323. If a father abducted his children, he would be arrested and charged. Females are not charged.

16The remedies sought by the applicant in the complaint were the following:

1. Equality of treatment, based upon the protected grounds in the Human Rights Code in Ontario;

2. No further repraisal (sic) and no further criminal assaults, as occurred on Mar. 20;

3. That Ottawa Police staff attend training on “gender equality”;

4. That the Ottawa Police post Ontario Human Rights posters, dealing with “gender equality” and disability issues.

5. That systemic discrimination within the Ottawa Police Service be addressed by the Ottawa Police Services Board.

6. That racial profiling, gender profiling cease.

7. That Ottawa Police respect the Charter of Rights & Freedoms.

17By Statement of Claim dated January 17, 2008, the applicant commenced a civil action against these respondents and some 13 others, including the Ministry of the Attorney General and a judge of the Superior Court. It appears to me from my review of the Statement of Claim that it encompasses several distinct complaints: one against the owners of a residential property where the applicant allegedly slipped and fell and suffered injuries; one against various actors, whether participants, witnesses or decision-makers, involved in a family law dispute with the applicant; and his complaint about the Ottawa Police Services. The applicant sought in excess of $2,000,000.00 in damages in his civil action.

18The one paragraph of the Statement of Claim that relates to these respondents states:

Defendants Ottawa Police Services, the Ottawa Police Services Board and Detective Dave Merkel are represented by the Defendant the City of Ottawa, a municipality in the Province of Ontario. The plaintiff states that police have a duty of care to him. Ottawa Police are negligent with regards to investigation of this matter and the related matters. Ottawa Police held the plaintiff in custody for nearly 24 hours, denying the plaintiff proper medical attention for his diabetic condition. While in Ottawa Police custody the plaintiff was criminally assaulted by members of the Ottawa Police. Ottawa Police have breached its duty of care, with respect to the rights of the plaintiff.

19By Consent Order dated October 20, 2008, the applicant’s civil action was dismissed, without costs, against various defendants, including the respondents to this Application.

20Section 34(11) of the Code provides as follows:

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.

21Section 46.1, referred to in section 34(11), provides as follows:

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:

1. 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.

2. 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.

22This Application to the Tribunal was commenced on June 29, 2009. At that point, the applicant had commenced his civil action against the respondents in which he complained of his treatment while in incarceration, and in particular complained that he was denied proper medical attention for his diabetes. He sought an order of monetary compensation in that proceeding. Further, a final decision had issued in the civil action.

23To the extent that this Application alleges discrimination in services by the respondents on the basis of disability, it relates to the same period of incarceration as the civil action and raises the same issues about his treatment while in custody, the complaint that he was denied medical attention for his diabetes, and an unparticularized allegation of assault (raised only in the remedial section of the complaint underlying this Application). It does not matter that the Code is not specifically referenced in the civil action. What is significant is that the relief that is sought in each proceeding arises out of the same factual context. These are the principles set out in Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, and Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282.

24While the applicant relied on the decision in Berzins v. Ottawa Police Service, 2009 HRTO 1192, I do not find this 4-paragraph decision to be of particular assistance. The pleadings in the civil action and the Tribunal application are not reproduced in the decision, and the analysis consists of one factual observation: “Nowhere in the Claim is there any allegation of human rights discrimination or any request for a remedy to address an infringement of the Code”. On that basis the request to dismiss pursuant to section 34(11) was dismissed. I have reached the opposite factual conclusion here, and for that reason this Application is barred insofar as it relates to the conduct of the respondents in connection with the applicant’s arrest and incarceration.

25This Application also alleges that the respondents have discriminated against him with respect to sex (or more properly gender as he clarified in his oral submissions), and have engaged in a reprisal against him. I find that these allegations do not form part of the civil action. Section 34(11) of the Code therefore does not bar those aspects of the Application.

Matters Remaining

26I deal with the reprisal allegation first.

27The reprisal allegation relates exclusively to the circumstances in which the applicant came to be arrested by Ottawa Police Services on March 19, 2007. It flows from the same incidents he has clearly raised in his civil action. His pleadings in that civil action allege that the Ottawa Police Services did not exercise the requisite duty of care towards him and were negligent in their “investigation in this [presumably his arrest] and related matters”. Clearly the applicant is complaining in his civil action that the Ottawa Police were negligent in arresting him, and in his application is complaining that they engaged in a reprisal in arresting him. At bottom, both proceedings relate to the question of why the applicant was arrested.

28As I understand it, the applicant’s allegation is that his arrest in March 2007 was a reprisal contrary to the Code. The unusual feature of this allegation is the lack of congruency between the person(s) alleged to have engaged in the reprisal (these respondents) and the person against whom the only extant Code complaint at that time was made (the National Judicial Institute) .

29There is no allegation that the respondents to this Application had any knowledge that the applicant had filed a complaint under the Code against the National Judicial Institute – there is only an allegation that the National Judicial Institute requested that the Ottawa Police attend at its premises and deal with the individual (or perhaps individuals) engaged in protest actions there, one of whom was the applicant. The National Judicial Institute has since disappeared from the picture insofar as proceedings under the Code are concerned.

30The Commission dismissed the applicant’s complaint against the National Judicial Institute in 2008. That event prompted the filing of the Application to the Tribunal against the Commission and Ombudsman referred to above that was dismissed in early June 2010. An additional unusual feature of the reprisal allegations is the fact that the applicant pled guilty to a contravention of the Criminal Code in respect of his involvement in the protest for which he was arrested.

31At the preliminary hearing, the applicant will be asked to address whether his allegations of reprisal against the Ottawa Police Services Board or Detective Merkel (or indeed anyone) should be dismissed on the basis that there is no reasonable prospect that this aspect of his Application can succeed.

32The applicant’s allegations that the respondents discriminated against him on the basis of sex (or gender) relate to his objection to the Ottawa Police Services collecting data that records the sex and racial identity of persons arrested or in custody, and to his assertion that the Ottawa Police Service differentially enforces the Criminal Code prohibitions on parental abduction based on whether the alleged abductor is male or female. His only specific allegation in support of this aspect of the complaint is that the police did not lay any charges when he advised them in 1988 that his former spouse had threatened to “take the children” and stated that he would not see them again. He speculates that the outcome would have been different had his former spouse made the same complaint about him. He refers to a subsequent “parental abduction” investigation commenced by the Ottawa Police Services, but it is not at all clear how, if at all, this investigation impacts on him.

33In his oral submissions at the hearing before me, the applicant made reference in connection with his sex/gender discrimination claims to incidents and exchanges of correspondence that occurred after he filed his Application with the Tribunal, some of which appeared to involve the Ottawa Police Services Board and some of which related to other law enforcement agencies.

34It appears to me that there are issues that need to be addressed about whether the 1988 allegations were made in a timely fashion, and have been sufficiently particularized. As well there seem to be some issues about the proper scope of this Application as it relates to events both prior to and subsequent to the date of the original complaint and which may have involved actions taken by persons other than David Merkel and the Ottawa Police Services Board. Rule 12.3 of the Tribunal’s Rules of Procedure for Transitional Applications make it clear that section 53(5) applications “must be based on the subject matter of the complaint or amended complaint filed at the Commission”. The cover letter to the book of documents the applicant filed with the Tribunal refer to interactions with the Ottawa Police Services Board extending from 1981 until November 2009, many of which are not contained in the complaint. At the preliminary hearing the parties must be prepared to address the issues identified in this paragraph respecting timeliness, sufficiency of particulars, and the scope of the hearing.

35I should note that there are some outstanding production/disclosure issues in this file. The scope of what documents are arguably relevant and subject to production will depend on the scope of the issues to be addressed. Consequently, the production/disclosure issues should only be addressed, if necessary, after the other preliminary matters I have identified have been dealt with.

Conclusion

36In summary, the Application is barred pursuant to section 34(11) of the Code with respect to the allegations of discrimination on the basis of disability in the provision of services by the Ottawa Police Service in March 2007. The balance of the Application is not barred pursuant to section 34(11), but will be set down for a one-day preliminary hearing to address the issues identified in paragraphs 26-34 of this Interim Decision. The parties may deliver any submissions and caselaw on which they wish to rely at the preliminary hearing to each other no later than 30 days prior to the hearing date.

37This matter is referred to the Registrar-Transition to schedule a one-day preliminary hearing.

38I am not seized.