Lang v. Ontario Provincial Police, 2010 HRTO 1683

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Lang

Applicant

-and-

Ontario Provincial Police

Respondent

A N D B E T W E E N:

David Lang

Applicant

-and-

The Halton Regional Police Service

Respondent

A N D B E T W E E N:

David Lang

Applicant

-and-

Toronto Police Service

Respondent

DECISION

Adjudicator: Judith Hinchman

Date: August 17, 2010

Citation: 2010 HRTO 1683

Indexed as: Lang v. Ontario Provincial Police

APPEARANCES BY

) David Lang, Applicant ) On his own behalf ) )

Ontario Provincial Police, Respondent ) Christopher Diana, Counsel

The Halton Regional ) Kenneth Kelertas, Counsel

Police Service, Respondent ) )

Toronto Police Service, Respondent ) Sharmila Clark, Counsel

1On September 19, 2007, the applicant filed two Complaints with the Ontario Human Rights Commission alleging a breach of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), naming as respondents the Ontario Provincial Police (the “OPP”) and the Halton Regional Police Service (the “HRPS”). On February 2, 2008, the applicant filed another Complaint naming as the respondent the Toronto Police Service (the “TPS”). The applicant abandoned these Complaints and filed three Applications (the “Applications”) with the Human Rights Tribunal of Ontario (the “Tribunal”) pursuant to s. 53(5) of Part VI of the Code. The applicant alleges discrimination in relation to goods and services on the basis of disability and reprisal. The Tribunal is processing these Applications together.

2This Decision deals with the respondents’ request that the Applications be dismissed for lack of jurisdiction either on the basis of delay or a failure to make out a prima facie case. In the alternative, the TPS has asked that the Application against it be deferred until a grievance the applicant filed in 2005 has run its course. Having heard the parties’ oral submissions on the preliminary requests, the Tribunal makes the following Decision.

BACKGROUND

3The applicant joined the TPS in 1980. At the time of the Complaints he continued to be employed by the TPS.

4On August 22, 2003, the applicant made a public complaint pursuant to Part V of the Police Services Act, R.S.O. 1990, c. P.15, setting out 73 allegations of misconduct against 22 officers of the Halton Region Police Service, including the Chief of Police, that allegedly occured between April 2000 and April 2003 (the “Police Service Public Complaints”). By letters dated December 21, 2003 and January 22, 2004, the Public Standards Bureau of the Police Service dismissed these complaints. The applicant appealed to the Ontario Civilian Commission on Police Services (“OCCPS”) and on April 27, 2004 and May 11, 2004, it upheld the decisions.

5On August 25, 2003 and January 21, 2004, the applicant filed two other complaints with the OPP Professional Standards Bureau alleging misconduct on the part of three OPP officers (the “OPP Complaints”). These complaints were dismissed by the OPP Professional Standards Bureau in November 2003 and March 2004. After the applicant’s appeal, the OCCPS upheld the decisions in April and July of 2004.

6Because, while on duty, the applicant used the resources of his employer the TPS to pursue the above complaints, he was charged under the Police Services Act with two counts of discreditable conduct and pled guilty to one count. On April 12, 2005, the presiding Hearings Officer imposed a penalty of forfeiture of three days’ salary. The applicant appealed this penalty to the OCCPS. On February 8, 2006, the OCCPS dismissed his appeal.

7In each of the Applications, the applicant alleges that in 2003 false and discriminatory statements were made that he was mentally unstable and these communications led to further discriminatory acts.

Application against OPP

8The applicant alleges that the OPP discriminated against him in two ways. First, he alleges that in 2003 “members of the OPP contacted and met with his employer,” the TPS, and stated that he was mentally unstable. The discriminatory effect of these false statements continued when later they were “used in a letter dated January 2007 by the medical officer of the TPS in his demand that [the applicant] attend a psychologist to determine [his] mental suitability for duty.” Furthermore, the applicant alleges that as a result of the perception that he was mentally unstable that was communicated from the OPP to the TPS, the TPS transferred him to a lower-level position.

9He alleges that the discrimination prompted by the OPP’s communications to the TPS continued to the date that he filed his Complaint against the OPP in that the TPS has continued to deny him the opportunity for promotion. The applicant also alleges ongoing effects include that he has been subjected to ridicule by members of the TPS and that his reputation in the community has been damaged. The applicant’s second allegation is that based on the fact that the OPP perceived him to be mentally unstable, it discriminated against him when it denied him services by not fully investigating the OPP Complaints he filed in 2003 and 2004.

Application against HRPS

10The applicant alleges that the HRPS discriminated against him in two ways. First, in August 2003, “members of the HRPS made accusations that I was/am mentally unstable to the OPP and to my employer.” This also contributed to the letter dated January 2007 that is described in his OPP Application, the ridicule he has faced, and his diminished reputation in the community. The applicant further alleges that because of the August 2003 incident, Detective Sergeant Ken Cormier, who coordinated the Public Studies program at the Sheridan College Oakville campus Continuing Education Department, has not permitted the applicant to teach part-time classes.

11The second allegation of discrimination against the HRPS is that due to its false perception that he was mentally unstable in 2003, it denied him “services required by the HRPS and the Halton Police Services Board (HRPSB)” by not investigating the Police Service Public Complaints he filed.

Application against TPS

12The applicant alleges that after being “branded as having a mental disability” in April 2003, first, the TPS denied him promotions. Second, in 2005 he was removed from his position and transferred to a lower-level position. Third, he was further “punished” when he was forced to see a psychiatrist and psychologist in January 2007. Fourth, he alleges the discredible conduct charges laid against him, for which he received a penalty in 2005, resulted from a “campaign” led by Inspector K. Greenwood.

Decision

13Under Rule 4.2 of its Rules of Procedure for Transitional Applications, the Tribunal may dismiss part or all of an application that is outside the Tribunal’s jurisdiction.

Delay

14The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 states:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

15The Tribunal has confirmed that the statutory language makes it clear that section 34 applies to transitional applications made under section 53(3) of the Code; Savage v. Toronto Transit Commission, 2010 HRTO 1360.

16The OPP’s position is that the allegations that support the Application against it relate to interactions involving its Officers in 2003 and that there has been no further interaction among these individuals and the applicant since that time. Therefore, any alleged actions by the OPP happened four years prior to the OPP Human Rights Complaint filed on September 19, 2007.

17With respect to a discriminatory denial of services under the Police Services Act, the OPP argues that any involvement with the applicant under the Police Services Act was concluded in 2004, three years before the Complaint against the OPP was filed.

18The OPP argues that, as it is not the applicant’s employer, it could not reprise with respect to his employment, and further, the applicant’s claim of fear of reprisals is not reasonable in that the applicant filed a grievance against his employer with respect to similar issues in 2005.

19The OPP further argues that its ability to respond to the Application would be prejudiced after the lapse of time due to the fact that documents may have been lost or misplaced and the ability for witnesses to recall the details of events will have been diminished. The OPP submits that because it did not know of the applicant’s allegations until it received the Complaint, it did not preserve the necessary evidence.

20The HRPS’s position is that the alleged incidents that support the Application against it took place between 2000 and 2004. In particular, the applicant’s allegation that Inspector Weeks wrote a discriminatory memo relates to a memo written on August 26, 2003. The HRPS further submits that the file on the Police Service Public Complaints was closed after an appeal to the OCCPS on May 11, 2004.

21HRPS argues that the applicant has provided no facts or evidence to support that the alleged incidents between 2000 and 2004 were the beginning of a series of incidents by the respondent that led to his employer TPS continuing to discriminate against him.

22The HRPS further argues that the applicant’s fear of reprisal is not a reasonable explanation for the more than three year delay and that he has provided no facts or objective evidence of possible reprisal. Moreover, it submits, he could have brought his Complaint earlier citing Code sections 8 and 9 for reprisal.

23Finally, HRPS claims it would be prejudiced in its ability to respond to the Application. The recollection of witnesses has been compromised by the passage of time and it has purged documentary evidence pursuant to its document retention by-law, which would have been preserved had it known of the Complaint at an earlier date.

24The TPS’s position is that the February 2, 2008 Complaint against it was filed more than three years after the time of the last alleged incident in the Complaint, an event that occurred in 2005 when the applicant was removed from a supervisory position as a result of the misconduct hearing under the Police Services Act wherein he pled guilty to one charge of discredible misconduct. It also notes that the applicant’s appeal of the penalty imposed after he pled guilty to the the misconduct charge was dismissed on February 8, 2006.

25Although the applicant has claimed that he could not file his Complaints for fear of reprisal, the TPS observes that he did file a grievance on April 8, 2005, alleging that the TPS had discriminated against him on the basis that he was incorrectly perceived to have a mental disability.

26I agree with the respondents that the central allegations in each Application relate to events that occurred well before the one year prior to the filing of each underlying Complaint. The question is whether or not the Applications allege a series of discriminatory events, the last of which occurred within one year of the filing of the underlying Complaints.

Series of Incidents

27The applicant argues that the discrimination has been ongoing in that he continues to be denied promotions and so he has suffered a series of incidents that continued up until the time that he filed his Complaints.

28The respondents argue that the Complaints deal primarily with incidents occurring mostly in 2003 and at most for one or two years after that. The respondents argue that the alleged “ongoing effect” beyond that time frame is not sufficient to be considered a series of incidents. To support their arguments, the respondents urge that the test for a “series of incidents” under the Code ought to be the following test for a “continuing contravention” applied by the British Columbia Human Rights Tribunal in Gichuru v. Law Society of British Columbia, (2004), 50 C.H.R.R. D/440, 2004 BCHRT 151, and adopted in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at para. 45 (ON S.C.D.C.):

To be a “continuing contravention”, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

Manitoba v. Manitoba (Human Rights Commission), 1983 CanLII 4703 (MB CA), 5 C.H.R.R. D/1885 (C.A.)

29In Mafinezam v. University of Toronto, 2010 HRTO 1495, the Tribunal reviewed the reasoning in Visic, supra and stated “the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination.” In Mafinezam, the Tribunal first identified the “incident” to which the Application in that case related and then after applying the rationale of Visic, found that the continuing effects of that incident did not constitute further incidents of discrimination or a series of incidents within the meaning of section 34(1).

30Applying the approach followed in Mafinezam, and distinguishing between incidents to which the Applications related as opposed to their continuing effects, the allegations regarding failure to provide service by not properly investigating the applicant’s public complaints deal with a time frame of 2003 to 2004. As such these allegations were not brought within the one-year time frame of the Code.

31The applicant’s allegations that because of false perceptions created in 2003 when statements were made about his mental instabilty he was “further punished” when he was forced to see a psychiatrist and psychologist in January 2007 is not a new and separate contravention of the Code. Nor are the applicant’s allegations that since the alleged 2003 communications, the TPS has refused to promote him or that he has, as a result of the 2003 incidents, been denied teaching opportunities. All of these are allegations of continuing effects of the false communications allegations. These allegations of continuing effects do not constitute further acts of discrimination beyond the alleged 2003 communications and thus also were not brought within the one-year time frame required by the Code.

32I find that the incidents in the Complaints underlying the Applications deal with allegations occurring in 2003 through 2004 for the OPP and HRPS Complaints and in 2003 through 2005 for the TPS Complaint. As these were not filed within one year of the alleged discriminatory incidents, there was a delay within the meaning of section 34(1) in the filing of each of the Complaints underlying these Applications.

Good Faith

33Having found that the Complaints underlying these Applications were not filed within one year of the alleged discriminatory incidents, if I am satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, I may still permit these Applications to proceed.

34As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he or she did not pursue Code rights in a timely manner.

35The applicant argues that he was unable to file the Complaints underlying these Applications earlier “due to the fact that there have been reprisals made against me in the past and my belief that there would have been further reprisals made against me, by members of the OPP, HRPS and the TPS.” Yet somewhat inconsistently, he also states that “I believe there will be further reprisals made against me as a result of” filing the Complaints. However, this belief do not deter him from filing when he did.

36Moreover, the applicant has made only general assertions that he believes he would face reprisals by the respondents. Finally, in 2005 he filed a grievance against the TPS making similar allegations.

37For these reasons, I am not persuaded that the applicant has provided a reasonable explanation as to why he did not pursue his rights under the Code in a timely fashion.

Susbstantial Prejudice

38In view of my conclusions, it is not necessary to address the respondents’ arguments about substantial prejudice; however, I observe that given the passage of time since the incidents alleged in 2003 through 2005, it is reasonable to conclude that the respondents will be prejudiced in their ability to respond to these Applications.

39I am satisfied that the circumstances in section 34(2) do not apply here and therefore the Applications are dismissed for reasons of delay.

40Given my decision, it is not necessary to address the other preliminary requests.

41The Applications are accordingly dismissed.