Lane v. Hamilton Police Services Board, 2011 HRTO 1145

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Lane Applicant

-and-

Hamilton Police Services Board and Jamie Moore Respondents

DECISION

Adjudicator: Ailsa Jane Wiggins

Date: June 13, 2011

Citation: 2011 HRTO 1145

Indexed as: Lane v. Hamilton Police Services Board

APPEARANCES

Brian Lane, Applicant ) Amy Spady, Student-at-Law ) Dianne Wintermute, Counsel

Hamilton Police Services Board ) Marco Visentini, Counsel and Jamie Moore, Respondents )

INTRODUCTION

1This Application was filed under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint (the “Complaint”) was filed with the Ontario Human Rights Commission on June 24, 2007 and abandoned upon filing this Application with the Tribunal.

2The applicant alleges that he was discriminated against on the basis of disability by the respondents, the Hamilton Police Services Board and Police Constable Jamie Moore (P.C. Moore), in the provision of services contrary to s.1 of the Code. In particular, the applicant alleges that the respondents discriminated against him on the basis of disability in the course of one of the personal respondent’s interviews of the applicant.

3The respondents deny the applicant’s allegations of discrimination and maintain that at all material times P.C. Moore was acting pursuant to his statutory and common law duties and that he behaved in a professional and respectful manner towards the applicant.

THE LAW

4Section 1 of the Code deals with discrimination in the provision of services:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

SUMMARY OF ALLEGATIONS AND EVIDENCE

5I heard testimony from the applicant and P.C. Moore.

6I have carefully considered all of the evidence and the submissions of the parties. Given the divergent testimony, I have set out below an overview of the main allegations and evidence, which was important for the purposes of arriving at my decision.

7The applicant lives at a house in Dundas, Ontario but also owns a vacant lot at 35 Ridgewood Boulevard, Dundas, on which he has planted many trees.

8On June 15, 2007, at about 6:00 p.m., the applicant bicycled from his home to his vacant lot to water his plants and trees. He finished at about 9:00 p.m. when a male guest visiting a neighbouring property ran through the hedge on the border of the two properties and shouted at the applicant. The applicant stated that the man came very close to him, pushed him back against the trunk of a tree and took a swing at him just glancing his face and ear. He said the man then started to choke him, but the applicant was able to push the man away.

9According to the applicant, other guests then came on to his property. The applicant asked the man for his name but neither the man nor the other guests would provide the man’s name. The owner of the neighbouring property, Deborah Cook, appeared and told her guests that they were on the applicant’s property. The applicant said he told Ms. Cook that he was hurt and that he was going to call the police.

10The applicant testified that he got in his car to drive to the hospital and on the way stopped to call “911”. He indicated that the police told him to go back to his property and wait for the police there.

11P. C. Moore, in his capacity as a police constable in uniform patrol, responded to the call, which was described as a dispute between neighbours at 35 Ridgewood Boulevard.

12P.C. Moore spoke to the applicant who identified himself as the owner of the property at 35 Ridgewood Boulevard. The applicant provided P.C. Moore with his version of the events of the evening. The applicant testified that P.C. Moore was very respectful and polite.

13P.C. Moore testified that the applicant, in describing the physical assault, only referred to the pushing, not to the glancing strike or choking. P.C. Moore could not see any visible signs of injury to the applicant.

14P.C. Moore then attended the neighbouring property where he spoke to Ms. Cook. Ms. Cook identified the man involved in the dispute with the applicant as Fred Baxter, her guest. Mr. Baxter had left Ms. Cook’s property by the time P.C. Moore spoke to Ms. Cook.

15According to P.C. Moore, Ms. Cook explained that Mr. Baxter thought that the applicant was trespassing on her property. Ms. Cook maintained that the dispute between the applicant and Mr. Baxter was verbal only, and that once she explained to Mr. Baxter that the applicant was on his own property, the confrontation ended. P.C. Moore testified that Ms. Cook told him that the applicant was schizophrenic and would often visit his vacant lot at night, walking around the wooded area behind her home, causing her to be concerned.

16After speaking to Ms. Cook, P.C. Moore went back to speak to the applicant (the “second interview”). P. C. Moore told the applicant what Ms. Cook had said about the applicant and about the incident. According to the applicant, P.C. Moore asked him if he was schizophrenic, where he spent his evenings, what his habits were and where he slept. The applicant was upset by the questions, refused to answer any questions concerning his mental health, but did answer the other questions even though he found them invasive.

17The applicant testified that P.C. Moore was very hostile during the second interview, pressuring the applicant to confirm that he had a mental illness. The applicant said he asked P.C. Moore why he wanted to know about his diagnosis and P.C. Moore responded that if he had such a diagnosis, it would indicate that he was dangerous and violent, the neighbour would be afraid of him, and the assault justified.

18P.C. Moore disagreed with the applicant’s description of the second interview. P.C. Moore testified that after hearing Ms. Cook’s side of the story, he went to speak to the applicant and told him what Ms. Cook had said. P.C. Moore said that telling each party what the other had said was standard procedure in disputes between neighbours. He testified that he may have asked the applicant if he was schizophrenic or if Ms. Cook was making it up. P.C. Moore stated that he was more concerned with her credibility than the applicant’s.

19P.C. Moore explained that given Ms. Cook’s allegations about the applicant’s behaviour, if he believed that the applicant was a danger to himself or others there might be grounds to justify an apprehension under section 17 of the Mental Health Act, R.S.O. 1990, c. M.7.

20Section 17 of the Mental Health Act states:

Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c) has shown or is showing a lack of competence to care for himself or herself,

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

21However, after speaking further with the applicant, P.C. Moore was satisfied that there was no justification for an apprehension under section 17 of the Mental Health Act.

22P.C. Moore told the applicant that he would not be laying any criminal charges against Mr. Baxter because based on the conflicting stories and evidence, there were no reasonable or probable grounds. He told the applicant that he would be submitting a report and he gave the applicant his business card.

Decision

23There were significant conflicting allegations regarding the second interview. Consequently, this Decision turns largely on my assessment of the credibility of the evidence given by the witnesses. In assessing credibility, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 at 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

24In addition, I have considered the following factors set out in Cugliari v. Teleficiency Corporation, 2006 HRTO 7 at para. 26:

[T]he motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence and observations as to the manner in which the witnesses gave their evidence.

25Both witnesses testified in a forthright manner but their recollections and perceptions of the second interview vary.

26Counsel for the applicant pointed out inconsistencies between the respondents’ Response to the Complaint and P.C. Moore’s testimony. Paragraph 17 of the Response states that P.C. Moore asked the applicant if he was schizophrenic because he wanted to clarify the applicant’s mental status for public safety reasons. Paragraph 19 states that after further discussion with the applicant, P.C. Moore was satisfied that there was no justification to apprehend the applicant under section 17 of the Mental Health Act. In his oral testimony, P. C. Moore said that he only mentioned the applicant’s mental health when telling the applicant what Ms. Cook had said about the applicant. In cross-examination, P. C. Moore said he may have asked the applicant if he was schizophrenic but it was in the context of asking if what Ms. Cook had said was true. P.C. Moore said he was more concerned with Ms. Cook’s credibility than the applicant’s.

27P.C. Moore was not definitive about what he said to the applicant during the second interview, he testified he may have asked the applicant if he was schizophrenic. Given the passage of time between the incident and the filing of the response to the Complaint and the incident and the hearing, it is not surprising that there are slight discrepancies between the Response and P. C. Moore’s testimony. The discrepancies were minor and P.C. Moore’s explanation of them was, in my view, credible.

28Counsel for the respondents pointed out discrepancies between the applicant’s testimony and notes that he made immediately after the incident and filed with his Complaint. In his testimony, the applicant indicated that he felt physically threatened by P.C. Moore during the second interview but this serious allegation is not contained in his notes. He explained that he was afraid that he might be arrested under the Mental Health Act, although P.C. Moore never said this, the applicant felt sure he was thinking it. The applicant testified that his notes contained the bare, important facts but that he remembered a lot more. I accept the applicant’s explanation that he only made notes of the main facts.

29Counsel for the applicant directed me to several cases regarding discriminatory questions and comments, and cases that referred to the fact that people with mental illnesses are members of a historically disadvantaged group.

30Counsel for the applicant suggested that the situation in Thompson v. Selective Personnel Limited, 2009 HRTO 1224, was analogous to this case. In Thompson, an employment application form contained the question: “Have you ever been under psychiatric care?” The Tribunal found that the mere asking of the question was a prima facie act of discrimination. Counsel for the applicant argued that in this case, the manner in which the question asked was discriminatory.

31However, as counsel for the respondents pointed out, Thompson concerned discrimination in employment, not the provision of services, i.e. the conducting of a police investigation. In Thompson, the purpose of the question was to screen job applications whereas here the inquiry into the applicant’s mental health was part of a police investigation. I accept P.C. Moore’s evidence that he asked the question about the applicant’s mental health only because it came up when he told the applicant what the other party had said in response to the applicant’s complaint to the police.

32Counsel for the respondents directed me to cases regarding police investigations. In one, Ritlop v. Toronto Police Services Board, 2009 HRTO 307, the applicant, a student who also had a small electronics business, ordered components that could be used for detonation, using his mother’s credit card. Two police officers visited his mother and questioned her about the applicant and the purchase. The applicant then spoke to one of the officers by phone. The officer told the applicant that based on the information he provided, the investigation would not be pursued.

33The applicant in Ritlop alleged that the respondents discriminated against him on the basis of ancestry, ethnic origin, disability and family status, as a result of the decision to investigate and their actions during the investigation. The Tribunal noted that it was not the Tribunal’s role to decide or comment on the appropriateness of the investigative techniques used, but rather to determine whether there was a violation of the Code. The Tribunal concluded that it was a legitimate role of the police to investigate possible wrongdoing in order to protect the community, that the investigation ended as soon as the police officer had verified information about the purpose of the purchases and that she readily accepted the applicant’s explanation. The Tribunal stated that this was a factor in supporting its conclusion that Code grounds were not a factor in the police actions.

34I accept the submission of counsel for the respondents that this case must be viewed in the context of policing. In this case, P.C. Moore was investigating a complaint made by the applicant about a guest of Ms. Cook. P.C. Moore interviewed the applicant and Ms. Cook. P.C. Moore told Ms. Cook what the applicant said and then told the applicant what Ms. Cook said. It was Ms. Cook, not P.C. Moore, who raised the issue of mental illness and suggested that the applicant may be dangerous. P.C. Moore had a duty to investigate and, as the Tribunal stated in Ritlop, it is not the Tribunal’s role to decide or comment on the appropriateness of the investigative techniques used, but rather to determine whether there was a violation of the Code. In my view there was not.

35It is understandable that the applicant was distressed to be questioned about his mental health, but Ms. Cook raised a possible concern of the applicant being a danger to the public and P. C. Moore, as was his duty, investigated Ms. Cook’s allegations. As soon as P.C. Moore satisfied himself that the applicant was not a danger to himself or others he dropped the matter. As in Ritlop, this was a factor supporting my conclusion that Code grounds were not a factor in P. C. Moore’s actions during his investigation.

36In Gurney v. McDonald’s Restaurants of Canada, 2011 HRTO 984, a restaurant manager made a remark about the fact that the applicant, a customer, was pregnant. The applicant’s counsel argued that a service provider who remarks on the pregnancy of a customer necessarily violates the Code. The Tribunal disagreed.

… A passing comment referring to pregnancy, without more to bring it into the realm of discrimination or harassment, is not a violation of the Code. Even assuming the comment did refer to the applicant’s pregnancy, the mere reference to that fact is not a violation of the Code. There is no reason to suggest the comment would be reasonably interpreted as humiliating or denigrating to the applicant on the basis of sex or pregnancy.

It is not the purpose of the Code to police every comment made by a service provider to a customer, nor does a person’s hurt feelings, anxiety or upset about a situation mean that the Code was violated. The applicant’s claim for damages is entirely outside of the range of what the Tribunal would have ordered for a single, passing comment in a service situation, even assuming that discrimination could be made out. …

37P. C. Moore stated that he did not refer to Ms. Cook’s allegations of mental health issues in his occurrence report because he had no concerns about the applicant’s behaviour. He believed that this was simply a dispute between neighbours. He did not lay charges against Mr. Baxter because it was a minor physical assault – he did not observe any injuries to the applicant, and in his view, given the conflicting stories, there were no reasonable or probable grounds.

Conclusion

38The Application is dismissed.