Adani v. Toronto Police Services Board, 2012 HRTO 1614

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hussein Adani

Applicant

-and-

Toronto Police Services Board and Pavle Dzangalovski

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: August 23, 2012

Citation: 2012 HRTO 1614

Indexed as: Adani v. Toronto Police Services Board

APPEARANCES

Hussein Adani, Applicant

Osborne Barnwell, Counsel

Toronto Police Services Board and Pavle Dzangalovski, Respondents

David Gourlay, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to police services because of race, colour, ancestry, and place of origin.

2The personal respondent is a police officer who at the relevant times was a parking offences officer.

3The applicant operates a restaurant in Toronto and is of Somali origin. The applicant alleges that the personal respondent targeted the applicant and his restaurant clients by issuing parking tickets and that the personal respondent told the applicant that he was doing this to drive him out of business. The applicant alleges that the personal respondent made racist remarks to him which indicated that the personal respondent targeted the applicant because of race.

4The Application was filed on July 19, 2010. The Application was delivered to the respondents, who filed a Response. The Response noted that many of the allegations appeared to relate to alleged incidents that took place more than one year before the Application was filed. The Response also noted that the applicant had not provided many particulars about what he was alleging so that it was difficult for the respondents to respond to the allegations.

5The respondents filed a Request for Order During Proceedings on November 15, 2011, asking the Tribunal to dismiss the Application in whole or in part because the alleged events occurred more than a year before the Application was filed and asking the applicant to provide particulars about what he was alleging and documents that might relate to the allegations.

6The Tribunal issued a Case Assessment Direction dated December 16, 2011. It directed the applicant to provide copies of relevant documents and particulars about the alleged events. The applicant was directed to provide the following by December 30, 2011:

• Copies of all parking tickets in the applicant’s possession relevant to the Application and any other documents or records relating to such tickets.

• The basis for the applicant’s allegation that Officer Dzangalovski, the personal respondent, issued parking tickets using the name and badge number of other officers.

• The license plate numbers, makes and models of vehicles owned by customers who he alleges were issued tickets is a discriminatory way. If the applicant does not wish to provide such information or cannot, he is to provide an explanation.

• Details about the outcome of all parking tickets received by the applicant during the period that he claims he received parking tickets on a discriminatory basis.

7The Tribunal issued a second Case Assessment Direction on February 3, 2012, noting that the applicant had not communicated with the Tribunal pursuant to the earlier Case Assessment Direction. Correspondence from the respondents suggested that the applicant might have retained Mr. Barnwell in the meantime but that the Tribunal had not been informed of this. The applicant was directed to clarify if he was represented and to provide the information requested in the earlier Case Assessment Direction.

8Mr. Barnwell subsequently filed a package of documents relevant to the Application and the applicant’s allegations. The package was described in the following terms in a third Case Assessment Direction, dated May 10, 2012:

• A copy of the applicant’s vehicle registration.
• Parking Ticket Court Summary pages respecting parking tickets that were issued in 2003, 2004 and 2005.
• A copy of a parking ticket issued on December 26, 2008.
• Copies of monthly passes for a private parking lot in respect of various months in 2006 and 2007.
• A Parking Tag Operations Tag Inquiry printout that seems to concern a parking ticket issued in 2004.
• Copies of six parking tickets. The dates the tickets were issued are not legible.

9On April 13, 2012, Mr. Barnwell sent an email attaching more documents which he indicated showed that some of the previous parking tickets were issued by officers who were not scheduled to work on the day the tickets were issued. He asked that the personnel files of eight officers be subpoenaed and that summonses be issued to require the attendance at a hearing of two of the officers.

10In the May 10, 2012 Case Assessment Direction, I directed as follows:

The Tribunal will schedule a half day telephone conference call preliminary hearing to deal with the following issues:

1. Should the Application be dismissed in whole or in part because it was not filed within one year of the last incident or the last in a series of incidents?

2. Was there a series of incidents within the meaning of section 34 of the Code?

3. Should the Application be dismissed in whole or in part because there is no reasonable prospect that the applicant can establish a link between the alleged events and the Code?

4. Is there a basis for the applicant’s allegation that the personal respondent issued parking tickets using the name and badge number of other officers and, if so, is a summons required to obtain relevant evidence?

Submissions at the telephone conference call hearing

11The telephone conference call hearing was scheduled for August 17, 2012. The applicant and Mr. Barnwell participated. The respondents were represented by David Gourlay, counsel.

12During the conference call hearing, the applicant clarified the allegations against the respondents. These may be summarized as follows:

13In the one-year period from July 2009 to July 2010, which is the year before the Application was filed, there were one or two alleged incidents of discrimination or harassment, both involving the personal respondent. The first incident occurred “in the summer” of 2009. The applicant cannot be more specific as to when this alleged incident occurred so it is not clear if it occurred within the one year period. The applicant alleges that the personal respondent issued a ticket to one of the restaurant patrons and said to the applicant “African guy, I am chasing your clients away to close your business down.” This alleged comment was not witnessed. The applicant concedes that the patron was parked in a no-parking zone but alleges that the personal respondent did not issue tickets to cars that belonged to a Pizza Hut restaurant across the street, although they also were parked in a no parking zone. The respondents submit that the parking rules are not the same on both sides of the street and that the Pizza Hut patrons were not parked illegally.

14The other alleged incident that occurred in the one-year period prior to July 2010 occurred on January 1, 2010. There were no tickets involved but the applicant alleges that the personal respondent drove by the restaurant and said, “You see African guy, I told you I would close your business.”

15The applicant alleges that the personal respondent issued parking tickets involving the applicant’s own vehicle between 2002 and 2005. The parties agree that the last parking ticket issued by the Toronto Police involving the applicant’s own vehicle was issued in August 2005. After that, the applicant no longer drove his car.

16The applicant alleges that the personal respondent issued a large number of parking tickets in the 2002-2005 period, and often made racist comments in the process. The applicant alleges that in 2004 his car was towed even though it was not parked in a no-towing zone. The applicant believes that the personal respondent was behind this, although there is no documentation to suggest this.

17The applicant alleges that the personal respondent issued a number of tickets to him posing as other, off-duty officers. This occurred in the period from 2002 to 2005. The applicant has obtained information through a Freedom of Information request that shows that the officers who issued the tickets were not on duty when the tickets were issued. The applicant submits that it is reasonable to infer that the tickets were issued by the personal respondent, posing as the off-duty officers.

18The applicant alleges that in 2008, the personal respondent, posing as other officers, issued tickets to restaurant patrons. The tickets appeared to have been issued by other officers, but the applicant alleges that they were actually issued by the personal respondent, posing as the other officers. The applicant alleges that on one occasion he witnessed the personal respondent issuing a ticket to a patron’s car. He told the patron about it and asked the patron to bring him the ticket, which he photocopied. The photocopied ticket is part of the package of materials provided by the applicant. It indicates that the ticket was issued by an Officer Hall.

19At the end of the hearing, the applicant indicated that he has copies of additional tickets that were issued in 2005 by the personal respondent posing as another officer. He indicated that he also has copies of tickets that were issued directly by the personal respondent to restaurant patrons in 2008. When these additional tickets were first mentioned in the hearing, the applicant indicated that he did not have the documents but that he had a recollection of them and had been unable to locate them. Later he indicated that he did have copies of the tickets, although they have not been produced.

Timeliness of the allegations

20Section 34 of the Code provides as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

21The only allegations that relate to alleged events in the one-year period prior to July 2010, when the Application was filed, is the incident on January 1, 2010, and possibly also the incident in the summer of 2010. As the respondent notes, since there is no specificity about when in the summer of 2009 the alleged incident occurred, it is not certain that this incident in fact occurred in the one-year period.

22The applicant alleges that all the other allegations are a series of events and that the incident on January 1, 2010, is the last in the series of events. On behalf of the applicant, Mr. Barnwell submits that the Tribunal accordingly has jurisdiction to deal with all the allegations, going back to 2002.

23In the alternative, Mr. Barnwell submits that there is a good faith explanation for the delay. These were described in Mr. Barnwell’s written submissions of August 2, 2012, in the following terms:

Mr. Adani retained his own perceptions of the power structures in Somalia which he characterized as reverence and fear. In his home country such individuals as the police created significant reverence and conjure up significant fear in him. Thus when he witnessed the conduct of the alleged Respondent over the years selecting himself and his patrons for unfair treatment, he believed that this was just the way things were – there was no difference between his homeland Somalia and Canada. Conversations with his patrons about what he perceived as being unfair, reinforced his belief.

However, in 2009 when the individual Respondent advised Mr. Adani he was going to have him return to Africa and later on in 2010 that he would shut him down, Mr. Adani woke up and decided to consult a lawyer. Prior to this, what he witnessed was a consistent pattern of conduct without a narrative to guide his thinking; a thinking steeped in the perception that what was being done was legitimate. The direct “threat” posed to him by the individual respondent brought significant anxiety to Mr. Adani and it was that fear, which propelled him to inquire as to whether something could be done. Once enlightened, he then realized that all of the years of the ticketing, the targeting were sourced in racism and hatred by a person with whom he had never had an interaction.

24On behalf of the respondents, Mr. Gourlay submits that the alleged incidents described by the applicant do not constitute a “series of incidents” as that term has been understood by the Tribunal. Mr. Gourlay referred to Hattori v. University of Ottawa, 2011 HRTO 1747, and the cases cited there at paragraph 19, and noted that the Tribunal has generally held that incidents separated by a gap in time of more than a year or more will generally not be considered a series. In this case, there appears to be a gap between the alleged incidents in the period from 2002 to 2005, which involved the applicant personally, and the alleged incidents in 2008, which involved the applicant’s patrons. There is then another gap between the alleged incidents in 2008 and the next incident in the summer of 2009.

25Mr. Gourlay submits that the explanation provided by Mr. Barnwell for why the applicant did not file an Application earlier is not consistent with the narrative that the applicant provided at the time he filed the Application and which he has subsequently reiterated in later submissions. In the narrative, the applicant stated that he challenged the personal respondent at the time of that many of the tickets were issued and said that he would make a complaint. He said that “on many occasions” he threatened to take the personal respondent “to court”. Mr. Gourlay notes that the interactions described by the applicant are not consistent with Mr. Barnwell’s theory that the applicant did not recognize that what was happening was improper or that, because of his experiences in Somalia, he felt could not complain about abuse of authority by the police.

26Mr. Gourlay further submits that the respondents would be significantly prejudiced if they were required to respond to allegations dating back to 2002.

Analysis and Conclusions

27I begin with the observation that the fact that the police issue parking tickets to cars that are parked in a no-parking zone is not in itself discriminatory. The applicant agrees that all of the tickets that were issued were issued to cars that were parked in no-parking zones. The restaurant does not have any designated parking spots. It is located on a busy downtown street on which parking and stopping are prohibited at various times of the day. Cars that park on the street at those times are liable to be ticketed. The documents that the applicant provided in respect of the tickets that were issued to his car consist of summary judgements of the Court when the applicant failed to appear. If the applicant felt that the tickets were issued unjustly, it is not clear why he would never have attended Court to contest the tickets. As noted earlier, Mr. Barnwell’s suggestion that the applicant was intimidated by authority because of his past experiences is not consistent with the narrative in the Application, which stated that the applicant on several occasions challenged the personal respondent and stated that he would take the matter to court.

28The allegation that the personal respondent issued tickets posing as other off-duty officers is, on its face, quite improbable. Posing as another officer would clearly be a serious matter, likely to result in at the least discipline. To issue the tickets, the personal respondent would have to log into the computerized system and enter the password of the other officer. This is something that would not likely go undetected, especially if the other officer was off-duty.

29There does not appear to be any logical reason why the personal respondent would pose as another officer. The applicant believes that the personal respondent did this as a way of covering up his discriminatory behaviour. However, if the personal respondent wanted to issue tickets to the restaurant patrons, it would seem that he could have done this on his own since there is no dispute that the cars were parked illegally.

30The applicant’s evidence in support of this aspect of his allegations is the results of a freedom of information request in regards to the assignment duties of various officers on different dates in the period 2003 to 2005. According to the applicant, this information establishes that tickets were issued to him by officers who were in fact off- duty.

31The applicant has not explained how the freedom of information request relates to the tickets he was issued. My review of the results of the freedom of information request and the dates of the ticket information provided by the applicant does not disclose any apparent correlation.

32The aspect of the allegations that potentially makes the ticketing discriminatory are the comments allegedly made by the personal respondent. If the personal respondent made the comments he is alleged to have made, those comments would be discriminatory. However, if it is assumed that the comments were made, it does not follow that the issuing of tickets was discriminatory, since it is not disputed that the tickets were issued to cars that were parked illegally.

33The comments were allegedly made in the period from 2002 to 2005 and again on one occasion in the summer of 2009 and on January 1, 2010.

34In my view, the alleged incidents in 2002 to 2005 are not part of a “series of incidents” within the meaning of the Code that includes incidents in 2008, 2009 and 2010. There is a gap between the period from 2002 to 2005, when the applicant’s personal car was ticketed, and the alleged incidents in 2008, when the applicant alleges that his patrons were ticketed. As noted earlier, incidents separated by a gap of this length will generally not be considered a series of incidents for the purposes of section 34 of the Code.

35In my view, the applicant has not established a good faith explanation for the delay in raising the allegations about the incidents from 2002 to 2005. The explanation proposed by Mr. Barnwell is not consistent with the applicant’s own account of his reaction when the tickets were issued and his interactions with the personal respondent. I also agree that the respondents would experience significant prejudice because records are no longer available.

36For these reasons, allegations in respect of the alleged incidents in the period from 2002 to 2005 are dismissed.

37The allegations in respect of 2008 concern tickets that were issued to the cars of patrons of the restaurant, allegedly by the personal respondent posing as other, off-duty officers. There is no allegation that there were any discriminatory comments made by the personal respondent in respect of these tickets.

38In my view, the allegation that the personal respondent issued tickets to restaurant patrons posing as other officers is even more implausible than the allegation that the personal respondent issued tickets to the applicant’s car in the earlier period. The applicant’s theory would seem to require the personal respondent to be able to connect a parked car with the applicant’s restaurant. I do not see how this connection could be made unless the officer saw the patron park the car and enter the restaurant. Even if the officer saw the patron park and then enter the restaurant there is no explanation for why the personal respondent would not simply issue a ticket instead of nefariously issuing a ticket in another officer’s name.

39The applicant says he can prove that the personal respondent issued a ticket to a patron in 2008 while posing as another officer because he witnessed the personal respondent issue a ticket.

40If the applicant can prove that the personal respondent issued tickets while posing as another officer this would be evidence of improper behaviour on the part of the personal respondent but would not in itself establish discrimination contrary to the Code. The link between this and the Code is only present if it is established that the personal respondent communicated that he was issuing tickets in an attempt to drive the applicant out of business and that he was doing this because of the applicant’s race, colour or place of origin.

41The allegation that might establish this link is the allegation concerning the comments allegedly made by the personal respondent to the applicant in the summer of 2009 and on January 1, 2010.

42The crux of this case therefore is whether the personal respondent made the comments that the applicant alleges were made in the summer of 2009 and on January 1, 2010. The alleged comment on January 1, 2010, is an incident that occurred within one year of the date the Application was filed. The alleged comment in the summer of 2009 is of a similar nature to the alleged comment on January 1, 2010, and so would be a related incident in a series of incidents even if it did not occur within one year of when the Application was filed. If the applicant can prove that these alleged comments were made, there is then potentially a basis for permitting the applicant to pursue the allegations about the improper ticketing in 2008 because there could then be at least a potentially Code-related nexus to the allegation about improper ticketing in 2008.

43The Tribunal will schedule a half-day oral hearing. At the hearing the applicant will provide the evidence he has to show that the alleged discriminatory comments were made by the personal respondent in the summer of 2009 and on January 1, 2010.

44The respondents may provide their evidence to show that the alleged discriminatory comments were not made.

45After this evidence has been heard, the Tribunal will make a written decision. The Tribunal will then determine whether the applicant will be permitted to pursue the allegations about improper ticketing in 2008.

Order

46The allegations in respect of the alleged incidents in the period from 2002 to 2005 are dismissed. The Tribunal will schedule a half-day oral hearing to hear evidence about the alleged comments in the summer of 2009 and on January 1, 2010.