St. Louis v. Ontario (Community Safety and Correctional Services), 2010 HRTO 662

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher St. Louis

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Ottawa Police Services Board and Norma Couturier

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: March 30, 2010

Citation: 2010 HRTO 662

Indexed as: St. Louis v. Ontario (Community Safety and Correctional Services)

1In this Application, filed under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”) on September 15, 2009, the applicant alleges that the respondents discriminated against him on the basis of race, ancestry and disability in respect of police services.

BACKGROUND

2The applicant identifies himself as an aboriginal man with a history of depression and anxiety. In January 2007, in response to a 911 call, the applicant was arrested and criminally charged with a number of offences related to the storage of his firearms and threatening to cause death. His hunting rifles were seized by the police while he was in police custody. The charges against the applicant were withdrawn on October 25, 2007, however, his rifles were not returned to him before the end of the hunting season on January 15, 2008.

3The applicant contends that the personal respondent, a police officer employed by the Ottawa Police Services Board, and a Firearms Officer with the Office of the Chief Firearms Officer with authority under the Firearms Act, S.C. 1995, c. 39, as amended, refused to return the applicant’s firearms to him because she assumed that he had a propensity for violence because of his history of depression and anxiety. The applicant also contends that the personal respondent discriminated against him as an aboriginal person by depriving him of his aboriginal right to hunt and by allegedly telling him that aboriginal persons did not have rights “off the reservation”.

4The applicant contends that his firearms licence was revoked the day after the hunting season ended in January 2008. The applicant states that his licence was revoked on the stated basis that he was a person who had been treated for a mental illness associated with threatened, attempted or actual violence against a person within the meaning of s. 5(2)(b) of the Firearms Act. The applicant contends that under the Firearms Act, he was entitled to have his firearms returned to him once his licence was revoked, if he commenced an application for judicial review of the revocation. The applicant contends that the respondents deliberately timed the revocation of his licence so that he could not commence an application for judicial review and have his hunting rifles returned to him prior to the end of the hunting season in January 2008.

5A decision of the Ontario Court of Justice in March 2008 annulled the decision to revoke the applicant’s firearms licence on the basis that there was no evidence that he had ever been treated for an illness associated with violence against a person.

Parties to the Application

6The applicant has filed a Request for Order during Proceedings seeking to add “Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services” (“MCSCS”) as a respondent to the Application on the basis that the Office of the Chief Firearms Officer is institutionally located within that Ministry. The applicant seeks to remove “City of Ottawa” and “Chief Firearms Officer” as parties. The applicant seeks to correct the name of the “Ottawa Police Services” to “Ottawa Police Services Board”.

7The MCSCS does not oppose being added as a party and states that the Office of the Chief Firearms Officer is situated within MCSCS. It does not oppose the removal of the City of Ottawa as a party, but states that the Ottawa Police, however named, should continue to be a respondent.

8The Ottawa Police Services Board (“OPSB”) and the personal respondent consent to the addition of MCSCS as a party and to the correction to the name of the OPSB. They consent to the removal of the City of Ottawa and the Chief Firearms Officer as respondents. They also seek to have the personal respondent removed as a party to the Application, citing as the relevant test that set out in Persaud v. Toronto District School Board, 2008 HRTO 31. Among other things, the test considers whether there is an institutional respondent which had deemed or vicarious liability for the conduct of the personal respondent, and which is able to satisfy any remedy ordered. The test also considers whether the conduct of the personal respondent is a central issue in the case. The OPSB and the personal respondent contend that the personal respondent was acting within the course of her duties at all times and that the institutional respondents are responsible for her actions and able to satisfy any remedy awarded against her. On this basis, they submit that she ought to be removed as a party.

9The applicant opposes the removal of the personal respondent as a party. He contends that even if someone else could be liable for the personal respondent’s actions, that does not preclude the Tribunal from finding that she is also personally liable under the Code. The applicant says that the Tribunal should be cautious about removing personal respondents at a preliminary stage of the proceedings: Oliver v Hamilton (City) (No.1) (1994) 1994 CanLII 18430 (ON HRT), 24 C.H.R.R. D/293 at para. 18; Bui v B. & G. Foods Inc. (2001) 2001 CanLII 26233 (ON HRT), 41 CHRR D/191 at para 102.

10The allegations in the Application are primarily based on the alleged actions of the personal respondent. The respondents appear to agree that the personal respondent was employed by the Ottawa Police Services Board and that she also exercised statutory authority under the Firearms Acts through the Office of the Chief Firearms Officer, which is part of the MCSCS. However, the institutional respondents are not clear which of them is responsible for which of the personal respondent’s actions in this matter, if such actions are proved to have violated the Code.

11Accordingly, without finally determining the issue, I decline to remove the personal respondent as a party to the Application at this time. It would be premature to remove the personal respondent on the basis that other institutional respondents are liable for her actions (if they violated the Code) when there is considerable uncertainty about that. The issue may be revisited at a later time, perhaps at the commencement of the oral hearing.

12Otherwise, and on consent of the parties, the request to add the MCSCS as a party is granted. The request to correct the name of the Ottawa Police Services to the Ottawa Police Services Board is granted. The request to remove the City of Ottawa and the Office of the Chief Firearms Officer is granted. The style of cause is amended accordingly.

13The Registrar will deliver a copy of the Application to MCSCS and the OPSB with the Tribunal’s standard Notice of Application setting out, among other things, the time for filing a Response.

Other issues

14The personal respondent asserts that the Application is outside the Tribunal’s provincial jurisdiction because it deals with action taken pursuant to federal legislation, namely the Firearms Act. She also submits that the Tribunal should dismiss the Application because another proceeding, namely a court proceeding under the Firearms Act, dealt with the substance of the Application within the meaning of s. 45.1 of the Code and because the Application constitutes an abuse of the Tribunal’s processes. The applicant contests these submissions.

15The Tribunal will hear the parties on these issues at the hearing scheduled to address the merits of the Application.

16In their Responses to the Application, the respondents MCSCS and OPSB should set out their positions with respect to the jurisdictional issue and the issue under s. 45.1 of the Code. Depending on the Responses filed, and any issues raised therein or in any Reply to the Responses, the Tribunal may issue further directions to the parties in respect of the Application either before or during the hearing of this matter.

17The MCSCS indicated that if added as a party, it would seek particulars from the applicant with respect to its alleged liability in respect of this matter. The applicant consented to provide such particulars to the respondents within 14 days of the date of this Interim Decision.

18I am not seized.