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:
Yvonne Davis Applicant
-and-
Edward Malachowski and Arshad Khawaja Respondents
DECISION
Adjudicator: Mark Hart Date: December 19, 2011 Citation: 2011 HRTO 2269 Indexed as: Anderson v. Malachowski
APPEARANCES BY
Jeffrey Anderson, Wendy Henderson, Erica Simons, Pamela Baird and Yvonne Davis, Applicants | Glen Morrison and Ayoob Khan, Representatives Edward Malachowski and Arshad Khawaja, Respondents | Robert Baldwin, Counsel
1These are five Applications made under s. 53(3) of the Ontario Human Rights Code, dated October 16, November 18 and November 19, 2008. The underlying complaints were filed with the Ontario Human Rights Commission (the “Commission”) on March 22 and 31, 2007.
2The main applicant, Jeffrey Anderson, is a pastor at a church called the Fountain of Fire Ministries. On October 5, 2006, Pastor Anderson was arrested by the two respondent police officers and charged with fraud over $5,000 and criminal breach of trust. The arrest stemmed from a complaint made to the police by a former member of the church, who reported that she had been told that the church was registered with the Canada Revenue Agency (“CRA”) as a charity and had made donations to the church on that basis. In fact, the church was not recognized by the CRA as a registered charity, with the result that the former member’s claim for a charitable donation deduction was disallowed and she was required to pay additional income tax. The charges against Pastor Anderson proceeded to court and ultimately were withdrawn on June 12, 2008, on the basis that the church made restitution to this former member.
3Pastor Anderson self-identifies as a Black male of African descent. He alleges that he experienced discrimination in respect of services because of his race, colour, ancestry, ethnic origin, place of origin and sex contrary to s. 1 of the Code, arising out of the manner in which he was treated by the respondent police officers in relation to his arrest and certain comments alleged to have been made to him by Detective Constable Malachowski (now retired). He also alleges discrimination in relation to a press release that was issued by the Toronto Police Service on October 6, 2006, that was subsequently picked up by a number of media outlets.
4The other three applicants (Ms. Simons, Ms. Baird and Ms. Davis) self-identify as Black women and are Board members of the church. They allege that they also experienced discrimination in respect of services because of their race, colour, ancestry, ethnic origin and place of origin contrary to s. 1 of the Code, arising out of the treatment of Pastor Anderson and the subsequent attendance of the police at the church in December 2006.
5The respondents were both police officers at the material time working in fraud investigation at 32 Division of the Toronto Police Service. Detective Malachowski is a White male who retired from the police service in February 2008. Detective Khawaja self-identifies as East-African and Muslim, having been born in Kenya.
6The hearing in this matter was held on June 27 and 28, 2011, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. I heard evidence from four of the applicants (Jeffrey Anderson, Erica Simons, Pamela Baird and Yvonne Davis) and one witness called on behalf of the applicants (Dominic Vitale) and I also heard evidence from the two personal respondents. Wendy Henderson did not appear at the hearing, and her Application was withdrawn as abandoned. A sixth applicant in a companion Application, Sylvia Edgecombe, is unfortunately deceased, and her Application was previously withdrawn as indicated in an Interim Decision dated February 10, 2010 (2010 HRTO 313).
7On consent of all parties, this proceeding was bifurcated to deal first with the issue of whether