Christianson v. Special Investigations Unit, 2012 HRTO 147

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Christianson

Applicant

-and-

Special Investigations Unit and Steve Gibbons

Respondents

DECISION

Adjudicator: Naomi Overend

Date: January 19, 2012

Citation: 2012 HRTO 147

Indexed as: Christianson v. Special Investigations Unit

Appearances by

Michael Christianson ) Self-represented

Special Investigations Unit and ) Fatema Dada, Counsel

Steve Gibbons )

1The applicant, Michael Christianson, filed his Application on November 17, 2008 alleging discrimination in the provision of services by the respondents on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Briefly, he asserts that he filed a complaint with the Special Investigations Unit in November 2007 (“SIU”) about the conduct of the Windsor Police Service and the University of Windsor Campus Police in 1991, and the SIU declined to investigate this complaint for discriminatory reasons.

2This matter was scheduled to proceed to a hearing in September 2009. In July 2009, the respondents filed a Request for Order During Proceedings (“Request”) asking the Tribunal to dismiss the Application. By Case Assessment Direction (“CAD”) I advised the parties that I would address the Request at the hearing.

3The applicant apparently did not receive a copy of this CAD and did not attend that hearing. The Application was dismissed as a result of the applicant’s non-attendance. The applicant successfully reconsidered this Decision and, after a protracted period of attempting to schedule a new hearing, the matter was heard on November 22, 2011.

4Prior to the hearing, I issued another CAD in which I explained that the parties should be prepared to address the respondent’s Request to dismiss. Specifically, I advised that I would be addressing the respondents’ two arguments that the Tribunal lack’s jurisdiction over this Application because: (1) the respondents were exercising an “adjudicative function,” which is not a service within the meaning of Code; and (2) the applicant had not alleged any facts in his Application on which the Tribunal could find that the SIU process “was exercised in a manner prohibited by the Code.”

5For the reasons discussed below, I find that the SIU was not exercising an adjudicative function, and that the Tribunal is not, therefore, deprived of jurisdiction with respect to this Application against it on that basis. However, with respect to his specific allegations against the SIU, I find that the applicant has no reasonable prospect of success in establishing that the respondents discriminated against him when they declined to investigate his allegations.

Is the SIU a service within the meaning of the Code?

6In the Request, the respondents argue that “the Tribunal has held that the adjudicative function of decision-makers, such as courts and statutory bodies, are not “services” within the meaning of section 1 of the Code.” The respondents take the position that they are performing an adjudicative function when determining whether to pursue an investigation.

7Since the Request was made, the Tribunal has issued several decisions clarifying this issue. Although there are still some decisions that find that the adjudicative function of courts and administrative decision makers is not a “service,” most now rely on the doctrine of judicial immunity to exclude these applications from consideration.

8Mr. Gibbons testified that the SIU is mandated under the Police Services Act, R.S.O. 1990 c. P,15 to investigate police officers who are alleged to have engaged in criminal activities that resulted in serious injury or death. The purpose of the investigation is to determine whether to lay criminal charges against the police officer.

9In that respect, the function of the SIU is the same as the function of the police when undertaking criminal investigations of the public at large. In commenting on the role of the police with respect to such investigations, the Supreme Court of Canada noted at para. 49 of Hill v. Hamilton-Wentworth Police Services Board, [2007] SCC 41:

It was argued that the decision of police to pursue the investigation of a suspect on the one hand, or close it on the other, is a quasi-judicial decision, similar to that taken by the state prosecutor. It is true that both police officers and prosecutors make decisions that relate to whether the suspect should stand trial. But the nature of the inquiry differs. Police are concerned primarily with gathering and evaluating evidence. Prosecutors are concerned mainly with whether the evidence the police have gathered will support a conviction at law. The fact-based investigative character of the police task distances it from a judicial or quasi-judicial role. [Emphasis added]

10I see no reason why this passage does not apply to the SIU merely because it carries out specialized criminal investigations. Accordingly, I find that the decision made by Steve Gibbons to not investigate the applicant’s complaint to the SIU was not “adjudicative” in nature.

Is there no reasonable prospect of success?

11The respondents take the position that the applicant has failed to set out any facts that allege a violation of the Code. Indeed, many of the applicant’s factual allegations in his Application concern what he believes happened to him in 1991, and do not in any way involve the respondents.

12He does, however, state that he made a complaint to the SIU in November 2007 and was told that the facts of his complaint did not meet the SIU criteria for serious injury. He states, further, that he asked for reconsideration of this decision on November 27, 2007, and that he was not given a response in writing, although he appeared to be aware that the SIU refused to reconsider its original decision.

13On their face, the decision to not investigate and the decision to not revisit the original decision are not allegations of discrimination. The only apparent link between these actions and the Code is the allegation that the applicant had to disclose his disability to the SIU at some point during this process. Although he fails to explicitly state this in his Application, the applicant takes the position that the refusal to investigate his case is somehow linked to his disability.

14The applicant asserts that his complaint met the criteria for the SIU to investigate, but, despite that, the respondents refused to investigate. The applicant further asserts that one can infer that the refusal to investigate was for discriminatory reasons relating to the applicant’s disability.

15In their respective Responses to the Application, the respondents set out the reasons why the SIU did not investigate the applicant’s complaint. That is, they provide non-discriminatory reasons for their actions. Ultimately, this case is about whether the respondents’ reasons are valid or merely pretext.

16In a CAD issued prior to the hearing, I indicated that I would require the attendance of the person who made the decisions to not investigate, so that he could testify and be cross-examined by the applicant. The individual respondent, Steve Gibbons, attended the hearing and testified, as directed.

17Mr. Gibbons is employed at the SIU as an Investigative Supervisor. One of his duties in this role is to act as a “gatekeeper” – that is, to determine whether incoming complaints/notification of incidents are within the SIU’s mandate. In that capacity, he reviewed the applicant’s letter of November 2, 2007, which sets out a brief chronology of the events that are alleged to have taken place on the campus of the University of Windsor and the hospital in December 1991.

18Most of the applicant’s narrative (and accompanying documentation) in the letter to the SIU is unrelated to the SIU’s mandate to investigate complaints of alleged criminal conduct on the part of the police leading to serious injury or death. However, Mr. Gibbons testified that he was able to identify two allegations that were at least tangentially related.

19The first was that the campus police transferred the applicant to a hospital, where he was placed in a locked psychiatric ward. He alleged that he was a “stroke victim” and that the hospital to which he was transferred “had no way of handling a stroke emergency.” Mr. Gibbons testified that the SIU had no authority to investigate the campus police as they are not police officers as defined in the PSA. His testimony on this point was credible and remained unshaken on cross-examination.

20The second allegation made by the applicant in his complaint to the SIU that arguably had a remote connection to the SIU’s mandate was articulated as follows: “Was Windsor Police Service involved with confiscating my antibiotics risking my life and brain damage by way of Septicemia?” It is not clear how the Windsor Police Service might have been involved in the confiscation of the applicant’s antibiotics, as they were apparently not involved in transporting him to the hospital.

21In his Application to this Tribunal, the applicant states that the doctors did not administer the antibiotics he was admitted to hospital with, but does not repeat the assertion that either the Windsor Police Service or the campus police actually confiscated his medication.

22Mr. Gibbons testified that he reviewed the material that accompanied the applicant’s November 2, 2007 correspondence. He made note of the fact that the campus police notes (which the applicant provided to the SIU) state that they had transported the medication with the applicant to the hospital, not the Windsor Police. The officer who authored this particular note recalled the attending doctor looking at the medication to assess treatment for the applicant. In other words, rather than supporting the applicant’s allegation that the Windsor Police confiscated his medication, the documents he provided to the SIU undermined his theory. Mr. Gibbons testified he viewed the allegation as too “speculative” to invoke the SIU’s jurisdiction. His testimony on this point was credible and was not challenged on cross-examination.

23Mr. Gibbons testified that he had a conversation with the applicant to explain the SIU’s position. He had follow-up conversations with the applicant, which were initiated by the applicant, but heard nothing that made him change his mind about the SIU’s jurisdiction. In cross-examination, the applicant did not suggest that Mr. Gibbons treated him in a discriminatory manner during these conversations.

24Much of the applicant’s cross-examination concerned whether Mr. Gibbons ought to have applied the criteria he did to evaluate his complaint. I limited this cross-examination when it became clear that the only point of it was to get at the correctness of Mr. Gibbons’ evaluation. The Tribunal’s job is not to decide whether or not the SIU could have investigated the applicant’s complaint, but rather whether its refusal to do so was tainted by discriminatory considerations.

25Having heard Mr. Gibbon’s evidence and the applicant’s cross-examination, as well as the parties’ respective arguments, it is clear to me that the applicant has no reasonable prospect of success in proving that the respondents improperly took his disability into consideration in declining to investigate his complaint. The respondents’ non-discriminatory explanation for the decision to not investigate the complaint is not only supported by credible testimony, but is also fully consistent with the documents introduced. The applicant’s allegation of discrimination on the basis is disability is nothing more than bald speculation.

ORDER

26The Application is, accordingly, dismissed.