HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Anderson

Applicant

-and-

Edward Malachowski and Arshad Khawaja

Respondents

AND B E T W E E N:

Wendy Henderson

Applicant

-and-

Edward Malachowski and Arshad Khawaja

Respondents

AND B E T W E E N:

Erica Simons

Applicant

-and-

Edward Malachowski and Arshad Khawaja

Respondents

AND B E T W E E N:

Pamela Baird

Applicant

-and-

Edward Malachowski and Arshad Khawaja

Respondents

AND B E T W E E N:

Sylvia Edgecombe

Applicant

-and-

Edward Malachowski and Arshad Khawaja

Respondents

AND B E T W E E N:

Yvonne Davis

Applicant

-and-

Edward Malachowski and Arshad Khawaja

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: February 10, 2010

Citation: 2010 HRTO 313

Indexed as: Anderson v. Malachowski

1These Applications were received on November 19, 2008 and relate to similar facts and issues. A Case Resolution Conference (hearing) is scheduled for April 23, 2010.

2The applicants allege discrimination on the basis of ancestry, colour, ethnic origin, race, place of origin and sex, contrary to section 1 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

3This Interim Decision deals with the respondents’ request for dismissal of all the applications except by Jeffrey Anderson on the basis that the Applications disclose no prima facie case against the respondents. There is also a request for particulars.

4The applicants consented to the removal of the Toronto Police Services Board as a respondent to these proceedings and they are hereby removed from these proceedings. The representative for Sylvia Edgecombe consented to the withdrawal of her Application on the basis that she is deceased. Her Application (T-0507-08) is withdrawn with leave of the Tribunal.

Request to dismiss for no prima facie case

5The applicant, Jeffrey Anderson is the Pastor of the Fountain of Fire Church (the “Church”). He self-identifies as a Black male Canadian citizen of African descent. He allege that two police officers, Edward Malachowski and Arshad Khawaja arrested him October 5, 2006 at his church, physically assaulted him, and continued the abuse at the police station.

6Erica Simons, Wendy Henderson, Pamela Baird and Yvonne Davis are board members of the Church. They self-identify as Black women. Their Applications are identical. They allege that they witnessed the discriminatory treatment of the applicant, Jeffrey Anderson at the Church on October 5, 2006. They also assert that the officers caused the press to become aware of the arrest of Pastor Anderson and that this resulted in negative publicity about their church.

7They allege that they heard the respondents make racially discriminatory remarks to Pastor Anderson. They allege that the Church was harassed by an unknown member of the 32 Division police on various occasions in December 2006.

8It is only in very rare cases, in which the facts and issues are very simple and clear, that the Tribunal may dismiss on the ground that an application fails to disclose a breach of the Code, without giving an opportunity to make oral submissions. In Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, the Tribunal reiterated that, while the onus is on the applicant to establish a prima facie case of discrimination, the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the respondent may have knowledge of facts or possess evidence of discrimination that is not accessible to the applicant, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. The Tribunal set out the approach it uses where the matter is at such a preliminary stage that no evidence has been presented:

In such circumstances, the threshold test will be the same, but there will be no evidence before the Tribunal. It will be sufficient if the applicant raises allegations that, if accepted to be true, would be enough to establish a violation of the Code. See: Capocci v. York Catholic District School Board, 2009 HRTO 107 at para. 20; Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, at paras. 21-22). (above, at para 6)

9In my view, it is not plain and obvious that the Applications of the female board members cannot succeed. The allegation that they heard racially discriminatory comments during a police arrest may amount to a breach of the Code. The allegation that their church, of which they were board members, was targeted by respondents may amount to a breach of the Code. The Request for an order dismissing the Applications of Erica Simons, Wendy Henderson, Pamela Baird and Yvonne Davis is denied.

Particulars

10The respondents seek particulars of the remedies requested. The applicants have agreed to provide them within 30 days (of January 29). Although the deadline for filing the statement of remedies was December 4, 2009, as the hearing is not scheduled until April 2010, an extension is granted and the applicants shall file particulars of the remedies by March 1, 2010.