HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jit Khassria

Applicant

-and-

Toronto Police Service and Toronto Police Services Board

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: July 12, 2012

Citation: 2012 HRTO 1374

Indexed as: Khassria v. Toronto Police Service

appearances

Jit Khassria, Applicant ) Self-represented

Toronto Police Service and Toronto ) Glenn Chu, Counsel

Police Services Board, Respondents )

INTRODUCTION

[1] The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), which alleged that the respondents discriminated against him with respect to services because of disability, race, colour, place of origin, and ethnic origin, and subjected him to reprisals. The purpose of this Decision is to decide whether the Application should be dismissed on the basis that it has no reasonable prospect of success. This issue was addressed at a summary hearing where the parties were afforded the opportunity to make oral submissions.

BACKGROUND

[2] The applicant is a Canadian citizen who was born in India. He lives in a house in the Greater Toronto Area with his family, and is employed as a taxi driver.

[3] Since early 2009, the applicant has complained to the Toronto Police Service (“TPS”) several times that whenever he leaves his house he is followed by several cars, and that the cars and individuals on foot follow him for the entire day until he comes back home. He told the TPS that the cars not only follow him to work and interfere with his livelihood, they also follow him when he goes out for a walk or to a grocery store, a shopping mall, or a temple.

[4] The applicant also told the TPS that he believes that the ringleader of the gang is the man who sold him his house, and that the individuals who were following him want to kill him, take his home, and even abduct his children. He provided the TPS with the name of the ringleader, and identified several individuals who were following him as the owners and tenants of 10 houses on his street. He also gave the TPS the license plate numbers of 28 of the cars that were allegedly following him.

[5] Several TPS officers investigated the applicant’s complaints. During the course of their investigation, they interviewed the applicant, the alleged ringleader, and some of the owners and tenants of houses on his street. They also conducted criminal background checks on some of the individuals who were allegedly following the applicant.

[6] The investigating officers concluded that there was no evidence of criminal activity, and the applicant was possibly or actually mentally ill. One officer contacted the applicant’s wife and asked her if she had any concerns about the applicant’s mental health. The applicant’s wife denied that he was mentally ill. Another officer contacted a community-based mental health agency, and asked them to contact the applicant. The agency contacted the applicant, who denied that he was mentally ill.

[7] On April 14, 2011, the applicant filed a complaint with the Office of the Independent Police Review Director (“OIPRD”), which alleged that the TPS did not conduct a proper investigation of his complaints of criminal harassment because of the police officers’ incorrect assumption that he is mentally ill. OIPRD referred the applicant’s complaint to the TPS for an investigation.

[8] During the course of the investigation, the TPS interviewed the applicant, and obtained written statements from the police officers involved, and the applicant gave the TPS the license plate numbers of 95 cars that were allegedly following him. The TPS also conducted a covert surveillance operation. Specifically, on three separate days, a police officer waited in an unmarked car outside the applicant’s house before he left in the morning, and followed the applicant after he drove off. The officer did not observe any cars following the applicant, or see any other evidence of criminal activity. When the officer later contacted the applicant and asked whether anything had happened to him on the days in question, the applicant told the officer that he had been followed by multiple cars and individuals soon after he left his house.

[9] On September 6, 2011, the TPS concluded that the applicant’s complaint to OIPRD could not be substantiated, and disposed of his complaint. In its analysis, the investigative report noted that the police officers who investigated the applicant’s complaints of criminal harassment were concerned that the applicant was “overly paranoid”, and, following their investigation, concluded that his complaints were not substantiated with evidence. In its conclusion, the report found that, given the unusual circumstances presented by the applicant, it was not unreasonable for an officer to inquire about the status of the applicant’s mental health during the investigation.

[10] The applicant requested that OIPRD review the TPS’s decision. In his request, the applicant alleged that one officer investigating his OIPRD complaint told him that he would report that the applicant was “paranoid” if he did not withdraw his OIPRD complaint, and when the applicant asked the officer if he would further investigate his complaints of criminal harassment if a doctor concluded that he was not “paranoid”, the officer told him that, whether the applicant was paranoid or not, he would not investigate the matter any further. The applicant also alleged that another officer investigating his OIPRD complaint told him that he would report that the applicant was not criminally harassed unless he agreed to sign a resolution of his OIPRD complaint based on an admission that there was no evidence to support his complaints of criminal harassment.

[11] On January 20, 2012, a Review Panel of OIPRD found that the TPS’s investigation of the applicant’s complaints of criminal activity was satisfactory, and upheld the TPS’s decision to dispose of the applicant’s complaint to OIPRD.

[12] On February 20, 2012, the applicant filed an Application under s. 34 of the Code, which alleged that the TPS’s police officers failed to investigate his complaints of criminal harassment because they wrongly assumed that he had a mental health disability. He also alleged that the officers asked him what country he was from, noted in their reports that he is Indian, and investigated his complaints as if he was a migrant from India, as opposed to a Canadian citizen.

[13] In his Application and the written submission that he filed prior to the summary hearing, the applicant further alleged that two of the police officers investigating his OIPRD complaint threatened him with reprisal. The applicant stated that one officer told him that he would report that the applicant was “paranoid” and “mentally ill” if he did not withdraw his OIPRD complaint, and that another officer told him that he would report that the applicant was not criminally harassed unless he agreed to sign a resolution of his OIPRD complaint based on an admission that there was no evidence to support his complaints of criminal harassment.

[14] On March 27, 2012, the Tribunal issued a Case Assessment Direction (“CAD”), which directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success, and/or because another proceeding has appropriately dealt with the substance of the Application.

[15] The summary hearing took place on June 29, 2012. The applicant filed written submissions and supporting documents, including the TPS’s investigation file, in advance of the hearing. At the hearing, I directed the parties to make oral submissions only with respect to the first issue set out in the CAD. I informed the parties that I would hear oral submissions with respect to the second issue at a later date, if necessary.

PRELIMINARY ISSUE

[16] The applicant sent the Tribunal two letters which requested that the Tribunal anonymize him in this proceeding because the individuals who are following him are likely aware of the proceeding, and, after the case is reported, will likely spread rumours that the respondents have identified him as mentally ill, when, in fact, he is not.

[17] Rule 3 of the Tribunal’s Rules of Procedure provides for open justice, subject to limited exceptions:

3.10 The Tribunal’s hearings are open to the public, except when the Tribunal determines otherwise.

3.11 The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

3.12 All written decisions of the Tribunal are available to the public.

[18] S. 9(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 also provides:

An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests if any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public.

[19] Furthermore, in [C.M. v. York Region District School Board, 2009 HRTO 735](https://www.minicounsel.ca/hrto/2009/735), this Tribunal stated at para. 20:

(…) An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents [are] found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. I agree with the respondents that it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particular parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

[20] In my view, the principle of open justice outweighs the applicant’s interest in anonymity in this case. I appreciate that the respondents’ statements about the applicant potentially having a mental illness may be stigmatizing, but his denial that he has a mental illness is also clearly set out in this Decision. Furthermore, the applicant has made a number of serious allegations of discrimination against the respondents, and, in my view, it would not be appropriate to allow him to pursue these allegations behind a veil of anonymity.

[21] Accordingly, the applicant’s request to be anonymized in this proceeding is denied.

ANALYSIS

[22] Rule 19A of the Tribunal’s Rules of Procedures provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in [Dabic v. Windsor Police Service, 2010 HRTO 1994](https://www.minicounsel.ca/hrto/2010/1994), at paras. [8-10](https://www.minicounsel.ca/hrto/2010/1994):

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

[23] The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code, or an intention by a respondent to commit a reprisal for asserting one’s Code rights. See [Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389](https://www.minicounsel.ca/hrto/2011/1389), at para. [17](https://www.minicounsel.ca/hrto/2011/1389).

[24] In his submissions, the applicant stated that his Application has a reasonable prospect of success because the TPS’s investigation file shows that the police officers did not properly investigate his complaints of criminal harassment, and that the lack of investigation was connected to their perception that he was mentally ill and their view that he was an Indian migrant rather than a Canadian citizen. When I asked the applicant what further investigation steps should have been taken, he responded that the TPS should have conducted surveillance. When I pointed out to the applicant that the TPS had conducted surveillance on three separate mornings and found no evidence of criminal activity, he stated that he told the officer conducting the surveillance that he had, in fact, been followed during the three mornings in question, but the officer refused to investigate any further. In the applicant’s view, the TPS should have conducted a more lengthy and sophisticated surveillance operation.

[25] With respect to his allegation of reprisal, the applicant essentially repeated the allegations in his Application. When I asked the applicant to explain why his human rights Application alleged that one officer told him that he would report that the applicant was “paranoid” and “mentally ill” if he did not withdraw his OIPRD complaint, but his review request to OIPRD only alleged that officer told him that he would report that the applicant was “paranoid”, the applicant responded that the omission of the words “mentally ill” in his review request to OIPRD was a mistake. The applicant maintained that the officer had identified him as both “paranoid” and “mentally ill”.

[26] In their submissions, the respondents stated that the Application has no reasonable prospect of success because there is no nexus to any Code grounds or the Code definition of reprisal. They stated that the TPS’s investigation file shows that the police officers conducted a thorough investigation of the applicant’s complaints of criminal activity, and that the officers’ observations and concerns about his mental health were a proper part of the investigation of both his complaints of criminal activity and his OIPRD complaint. They also stated that if the applicant brings forth fresh evidence of criminal activity, they will re-open their investigation.

[27] In my view, the Application has no reasonable prospect of success. I would begin by pointing out that this Tribunal is not the body responsible for reviewing the applicant’s general allegations of police misconduct with respect to the quality of the TPS’s investigation. In fact, the applicant’s allegation that the TPS failed to conduct a thorough investigation of his complaints of criminal activity was the subject of his complaint to the TPS and OIPRD. This Tribunal only has the jurisdiction to decide whether the respondents violated the Code in their dealings with the applicant.

[28] With respect to the applicant’s allegation of discrimination because of a perceived mental disability, there are three relevant facts in the materials before me. First, the applicant made several complaints of criminal activity to the TPS which, on their face, were incredible in nature. Second, several of the officers perceived that the applicant was possibly or actually mentally ill. Third, several police officers took steps to investigate the applicant’s complaints, including conducting interviews, criminal background checks, and a surveillance operation, and a Review Panel of OIPRD subsequently found that the investigation was satisfactory.

[29] I recognize that a police officer’s perceptions about a person’s mental health can result in discrimination, but, in the case at hand, the applicant did not show that there is a reasonable prospect that evidence that he has, or that is reasonably available to him, can show that the officers’ investigation was tainted by their perception that he was mentally ill. The materials before me show that, notwithstanding the incredible nature of the applicant’s complaints and the perception of several officers that he was possibly or actually mentally ill, the TPS took several steps to investigate his complaints of criminal activity. In my view, the fact that several officers perceived that the applicant was possibly or actually mentally ill, and the fact that the TPS did not, in the applicant’s view, conduct a sufficiently lengthy and sophisticated surveillance operation, are not enough to demonstrate that the applicant has a reasonable prospect of successfully proving that the respondents discriminated against him because of a perceived mental disability.

[30] With respect to the applicant’s allegation of discrimination because of race, colour, place of origin, and ethnic origin, I recognize that a police officer’s inquiries and notations about a person’s place of origin can result in discrimination, but, in the case at hand, beyond making a bald allegation that the TPS failed to properly investigate his complaints of criminal harassment because the officers viewed him as an Indian migrant rather than a Canadian citizen, the applicant did not show that there is a reasonable prospect that evidence that he has, or that is reasonably available to him, can show that the officers’ investigation was tainted by their inquiries about his place of origin and their subsequent knowledge that he is originally from India.

[31] With respect to the applicant’s allegations of reprisal, section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

[32] In [Noble v. York University, 2010 HRTO 878](https://www.minicounsel.ca/hrto/2010/878), the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

[33] Even if it is true that the two police officers who were investigating the applicant’s complaint to OIPRD told him that they would report that he was paranoid and/or mentally ill and had not been criminally harassed unless he agreed to withdraw or sign a resolution of his complaint, on its face, the logical inference to be drawn from this is that the officers were informing the applicant what the findings of their investigation into his OIPRD complaint were, what his options were, and what would be reported if the complaint was not withdrawn or resolved. In my view, the applicant did not demonstrate that there is a reasonable prospect that evidence that he has, or that is reasonably available to him, can show that this was a threat against the applicant for claiming his rights under the Code, let alone an intention on the part of the officers to retaliate against him for claiming his rights under the Code.

ORDER

[34] The Application is dismissed.

Dated at Toronto, this 12^th day of July, 2012.

“Signed by”

Ken Bhattacharjee

Vice-chair