Mohammad Sheikh v. Mike Gager, 2011 HRTO 345

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammad Sheikh Applicant

-and-

Mike Gager Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: February 16, 2011 Citation: 2011 HRTO 345 Indexed as: Sheikh v. Gager

WRITTEN SUBMISSIONS

Mohammad Sheik, Applicant ) self-represented

1This Application, which was filed on August 20, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleges discrimination in housing based on colour. The Application alleges that the respondent, an inspector from the Office of the Fire Marshall, provided false information when testifying as a witness in an Ontario Court of Justice proceeding on February 10, 2010 which led to the applicant being convicted and fined under the Fire Protection and Prevention Act 1997, S.O. 1997, c. 4. The applicant alleges that the respondent did this because of the applicant’s colour, that the respondent chose to side with two of the applicant’s tenants who are, like the respondent, white.

2On October 22, 2010, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) to the applicant stating that the Application appeared to be outside of the Tribunal’s jurisdiction because the Application appeared to be challenging the decision or outcome of an adjudicative process. The NOID indicated that the Tribunal has held on a number of occasions that “services” within the meaning of the Code does not include the outcome or decision resulting from adjudications of other statutory bodies, including courts. The NOID directed the applicant to the decisions in Baird v. Workplace Safety and Insurance Board, 2009 HRTO 99; Christianson v. Ontario (IPC), 2009 HRTO 203; and Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595.

3The NOID invited the applicant to file written submissions within thirty days of the date of the letter. On October 25, 2010 the applicant provided submissions.

4It appears, based on the Application and the applicant’s submissions, that the applicant is claiming that the respondent came to a rental property the applicant owns on September 11, 2008 and determined that the applicant would be charged with failing to have properly installed smoke detectors, a violation under the Fire Protection and Prevention Act.

5The Application alleges that at the court hearing to consider these charges the respondent testified that he met with the applicant on the day of the inspection on September 11, 2008. The Application alleges this was a lie, that the applicant did not meet with the respondent on that day and that as a result of this lie the applicant was convicted and fined. The applicant does not provide submissions in relation to whether the conduct of the respondent constitutes a service under the Code.

ANALYSIS AND DECISION

6The Application alleges that the area of discrimination in this case is housing. This is not accurate in that the housing or accommodation provisions of the Code specifically apply to persons alleging they have been denied the right to equal treatment in relation to the occupancy of accommodation. The issue in this case is whether the applicant has been denied equal treatment in relation to the provision of a service. Section 1 of the Code states that persons have the right to equal treatment in relation to goods, services and facilities.

7The applicant’s allegation is that the respondent lied during a court proceeding in February 2010, a proceeding which led to a court decision to convict and fine the applicant. While the Application indicates that the applicant was clearly upset about the court’s decision, the Application does not name the presiding justice as a respondent. If the applicant had done so I would have followed the Tribunal decisions identified in the NOID and determined that the justice’s decision is not a service under the Code.

8However, more relevant to the current case is the fact that the Tribunal has also determined in a number of cases that the conduct of persons participating in various court and tribunal proceedings do not constitute a service under the Code. For example, in Cooper v. Pinkofskys, 2008 HRTO 390, the Tribunal determined that questions put to an applicant by an opposing counsel while on the witness stand did not constitute a service. In Christianson v. Ontario (Attorney General), 2010 HRTO 1650 the Tribunal decided that an alleged lie by an opposing counsel during a tribunal proceeding involving an applicant did not constitute a service. In Surh v. Toronto (City), 2009 HRTO 1700 the Tribunal determined that a police officer was not providing a service when he acted as a witness in court proceeding against an applicant.

9I am of the view that the applicant should be provided the opportunity to file submissions on whether the respondent’s role as a witness at a hearing can be considered a service within the meaning of the Code given the Tribunal’s decisions I have cited, particularly Surh v. Toronto (City). The applicant must file his written submissions within 30 days of the date of this Interim Decision.

10The respondent is not required to respond unless and until the Tribunal directs it to do so.

11I am not seized of this matter.