Zenon Macyshyn v. Ryerson University and Intercon Security, 2012 HRTO 2331

Human Rights Tribunal of Ontario

Between:

Zenon Macyshyn Applicant

-and-

Ryerson University and Intercon Security Respondents

Decision

Adjudicator: Ian Anderson Date: December 12, 2012 Citation: 2012 HRTO 2331 Indexed as: Macyshyn v. Ryerson University

Appearances

Zenon Macyshyn, Applicant Self-represented

Ryerson University, Respondent Lauri Reesor, Counsel

Intercon Security, Respondent Daniel Chodos, 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 goods, services or facilities because of disability. The applicant has been diagnosed as a paranoid schizophrenic.

2On consent, Intercon Security is added as a respondent. The style of cause is amended accordingly.

FACTS

3Ryerson University (“Ryerson”) is, as its name suggests, a university. Ryerson’s campus is located in downtown Toronto. Intercon Security (“Intercon”) at all material times provided security services to Ryerson in relation to the campus. The applicant is a former student of Ryerson. He graduated in 2007. He has not taken courses from Ryerson since that date.

4The Application was originally filed on March 24, 2010. It was one of 14 separate Applications filed by the applicant against a variety of respondents. A joint summary hearing was held with respect to all of the applicant’s Applications. This resulted in an Interim Decision, 2011 HRTO 1068, dated June 3, 2011, which struck a number of the applicant’s Applications in whole or in part. One of the applicant’s allegations against Ryerson University was not struck. That allegation relates to an incident which occurred on April 18, 2009. On that day the applicant reported a bomb threat to security officers at Ryerson University. During the course of a one hour meeting he disclosed that he had been to CAMH, the Centre for Addiction and Mental Health, a mental health treatment facility in the City of Toronto. The security officers issued a trespass notice to the applicant of indefinite duration. He does not take issue with that. What he takes issue with are comments which he alleges two of the security officers said to him as he was being escorted out of the security office. In particular, he alleges that the two security officers were laughing and said to him: “Go back to CAMH and don’t come back here again.”

5Most of the facts in relation to the Application are not in dispute and are reflected in notes and reports by the security officers made at the time.

6On April 18, 2009 the applicant entered the Ryerson campus. He went to the Security office and indicated that he wished to file a report. Two security officers then employed by Intercon were dispatched to the Security office to meet with him: Joe Sheeder and Umang Patel. Part way during the meeting, Richard Cortez, a security supervisor also then employed by Intercon, joined the meeting and Patel left only to rejoin later. It is useful to note at the outset that in the notes and reports produced by Ryerson, these officers are referred to by number: Sheeder is #142, Patel is #138 and Cortez is #161. While not a term used by the parties, I will sometimes refer to these as their “badge numbers”. The notice of trespass indicates that it was issued by “#138” (with an illegible signature next to that) and witnessed by “#161”.

7The applicant was asked what he wished to report. Over the course of the next hour the applicant made a number of statements including the following. He indicated that he needed to warn security that “something is going to happen”, and that he was warning the security departments of the University of Toronto and York University as well. The applicant was asked for an example and said “OK, let’s say a student comes in to write an exam and has a bomb strapped to them”. The applicant indicated that Ryerson did not have time to call the police before the bomb went off. He stated he had already notified St. Michael’s Hospital. He indicated that he did not want Ryerson’s President or Deans informed, but that he would inform security of the plan “in several stages”. He was asked what the first stage was and indicated that it was coming and “it’s going to be very big, very huge”. He wanted students to be able to handle emergencies and suggested light drills be conducted. He was asked why a bomb, and responded “bombs are scary, high anxiety, people need to handle it when the time comes”. He was asked what the second stage involved and responded by referring to the “Bay building” (i.e. Ryerson’s Ted Rogers School of Management) and a faculty meeting. The applicant made repeated references to “something big” that was going to happen and at one point stated “it will blow you off your feet”.

8The applicant did not have any identification when asked, although he did provide his name, identify himself as a former student of Ryerson and provide his former student number. He also appeared to be in an agitated state. In view of his statements and his apparent agitation, Sheeder asked the applicant if he was on any medication. The applicant advised that he had been prescribed Zyprexia and Clozapine for schizophrenia, but that he had not taken his medication. He was asked if he was under treatment at CAMH. He responded that he was only on the “first floor” and then produced a pink release paper which he showed to the officers. The release showed that he had refused to voluntarily check himself into CAMH. Sheeder asked the applicant why he did not check himself in and the applicant responded that CAMH could not help him; that he was trying to get himself admitted to the 17th floor of St. Michael’s Hospital, which is its psychiatric facility.

9Cortez had Sheeder leave the meeting to contact the Toronto Police. Sheeder was advised that the applicant was “flagged” in the police system as “combative and assaultive”. Cortez was advised of this information.

10The security officers decided to issue a trespass ban to the applicant of indefinite term. Patel wrote up the notice which was given to the applicant. The term of the ban is indefinite. The applicant was informed of the boundaries of the trespass ban, confirmed that he understood and was then escorted from the Security office. Toronto Police conducted a floor by floor search of the Ted Rogers School of Management. No bomb was found.

11The applicant takes no issue with any of the foregoing. He states that he was delusional at the time and does not remember everything. He acknowledges that in April 2009 he, in essence, reported a bomb threat to the security officers. He does not take issue with the imposition of the trespass ban. He also acknowledges that he basically made another bomb threat to Ryerson in December 2011. He notes that there has been a lot of emergency task force involvement. He apologizes for the inconvenience which he has caused, but he states that he was not himself and that he is now receiving treatment which is working well. He provided a copy of a note from a psychiatrist dated June 14, 2012 which indicates that he has paranoid schizophrenia but that he is currently stable on medication and highly motivated to participate in a treatment program.

12The applicant’s concern is restricted to comments he says were made as he was being escorted from the Security office on April 18, 2009. In particular, the applicant testified that officer #138 (Patel) and officer #161 (Cortez) escorted him from the building. He testified that as they did so they had smiles on their faces and were laughing and told him to “Go back to CAMH”. That really bothers him. He thinks it is discriminatory. His testimony was straightforward and sincere. He was candid, clear and consistent in stating he had limited recollection of events beyond the following: he entered the security office; asked to speak to a security officer; was interviewed by a security officer who took extensive notes; the security officer called in his supervisor; he was asked if he was on medication; he disclosed that he was a schizophrenic and not taking his medication; he produced the discharge slip from CAMH; a notice of trespass was issued; and while he was being escorted out of the building the two security officers laughed at him and told him to go back to CAMH.

13In the Application which he filed with the Tribunal, the applicant appeared to indicate that at the time of the incident he was “a formal student” of Ryerson and that on the day in question he needed access to speak with his professors, financial aid and the access centre. In cross examination, however, he agreed that in April 2009: he was not a student of Ryerson; he was not an employee of Ryerson; and that he was not a member of a club or any sort of association being operated by Ryerson. He agreed that it was fair to say that he had no ongoing relationship with Ryerson at the time. He was asked if the purpose of his attendance on the security office was to report the bomb threat. He responded that he wasn’t there purposefully; he did not plan it out; he was just walking by and for reasons he cannot explain he just felt the need to talk to security and tell them about the bomb threat. He had, to his knowledge, no other business to conduct at Ryerson that day.

14As noted, the applicant does not challenge the fact that there were three security officers involved in the incident. In cross examination he stated, however, that he remembered there only being two security officers involved. He specifically remembered Sheeder’s face, even though Sheeder was not one of the two officers he had identified (by their numbers) as being involved.

15Each of Sheeder, Patel and Cortez testified. They were directed to limit their testimony to the facts which were in dispute. None of them had heard the testimony of the applicant or of each other prior to testifying. None of them continues to be employed by Intercon or to have any connection with Ryerson. Each of them testified in straight forward, credible manner.

16It appeared to me that Sheeder had limited recollection of events beyond what was set out in his notes. He stated that he considered the bomb threat reported by the applicant to be very serious. He denied that there was any joking around with the applicant. In his memory, all three of the security officers escorted the applicant out of the building following the issuance of the trespass notice. He testified the officers were professional and quiet while doing so. By professional he meant serious and respectful.

17In cross examination, the applicant asked Sheeder if he remembered him, and Sheeder replied that he did. Sheeder specifically denied that when the applicant was leaving any of the officers said either “go to CAMH the mental place” or “don’t come here again”.

18Cortez testified that after the trespass notice was issued to the applicant, he walked the applicant to a “half door”, and the applicant then exited the security office, turned left and exited the building. He wasn’t sure, but he thought that Sheeder escorted the applicant from the half door to the outside. He had no recollection of what was said to the applicant between the time the trespass notice was issued to him and the time he left the building. His recollection of the manner in which he acted during that time appeared to me to be based on what he would have done rather than specific recollection of what he did. He described his conduct as being “the same as always”, that he treats “everyone in a professional manner”. Because of the information received from the police as to the applicant’s background as argumentative and combative, he “would try not to agitate the person”, he “would not have laughed”.

19In cross examination, Cortez stated he did not remember the applicant, stating that he had a different person pictured in his mind. He stated that he knew that the issue of the applicant’s mental health had been raised but could not remember how, noting that as a supervisor he was getting hundreds of calls a day at the time.

20Patel testified that he left the room when his supervisor, Cortez, arrived. This was because of a policy of not having more than two security officers in a room at a time with an individual so that the individual would not feel uncomfortable. He had no knowledge of the fact that the applicant had mental health issues until after the applicant left Ryerson and all of the security officers got together to discuss the situation. His recollection was that Sheeder left the meeting to call the Toronto Police and that he, Patel, then interrupted Cortez’ meeting with the applicant to convey the information which had been received. After Patel issued the trespass notice to the applicant, his recollection is that he opened the door from the interview room for the applicant, Sheeder escorted the applicant to the main door and opened it. Patel noted that the distance from the interview room door to the main door was not big, perhaps ten feet. There was no communication with the applicant that he recalls after the notice of trespass was issued.

21Patel described his conduct throughout as respectful and professional. He also testified that at the time in question he was new to Canada and did not know what “CAMH” meant. The security position at Ryerson was his first job. The incident was one of the most serious incidents that he had during the period he held the position. It was a very tense situation and one in which he was concerned about his own safety and that of Ryerson.

ANALYSIS AND DECISION

22Ryerson argues that the Tribunal has no jurisdiction to determine this matter. The Tribunal is limited to dealing with disputes that properly fall under the Code: Padayachee v. Peel Children’s Aid Society, 2010 HRTO 709 at para 11. The applicant alleges he experienced discrimination with respect to the provision of goods and services. However, the Tribunal has found that in order for the area of “services” to be engaged, there must be some sort of service relationship, as opposed to mere interaction between the parties: Cooper v. Pinkofsky’s, 2008 HRTO 390 at para. 10; Padayachee, above at para 12. Ryerson cites Braithwaite v. Ontario (Attorney General), 2005 HRTO 31, where the Tribunal stated at para 22:

“[S]ervice” must mean something which is of benefit that is provided by one person to another or to the public.

In this case, Ryerson argues nothing of benefit was being provided by Ryerson or Intercon to the applicant. At most, there was a mere interaction. Intercon joins Ryerson in this argument.

23Even if the Code is engaged, Ryerson argues that the alleged comment does not meet the test for discrimination set out in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593.

24In any event, the respondents argue that, on the facts, the alleged comment was not made.

25Given the view I take of the facts, it is not necessary to determine the legal issues raised by the respondents or their application to the facts of this case.

26The threshold factual issue to be determined is whether or not the statements were made as alleged by the applicant. It is useful at the outset to note that there is no dispute that during the course of the interview, after the applicant had produced the discharge slip from CAMH which indicated that he had declined an offer of voluntary admission to that facility, Sheeder asked the applicant why he did not check himself in and the applicant responded that CAMH could not help him. The factual dispute is whether this issue was revisited after the applicant was issued a notice of trespass in the form of the statement allegedly made by Cortez or Patel, while laughing, of “Go back to CAMH” or “Go back to CAMH and don’t come back here again.”

27As I have stated, all of the witnesses struck me as credible. To the extent that they had specific recollection, each, in my view, sincerely believed that events happened as they remembered them. Having said that, I place little weight on the evidence of Sheeder and Cortez simply because neither, in my view, had specific recollection of the events in question.

28The applicant also candidly admitted that he had limited recollection of the events in question. While he had a specific and clear recollection of the statement being made, the manner in which it was made and the timing of when it was made, there are several reasons to doubt that it was made at the time and in the manner that he recalls. First, as he admitted, he was delusional at the time. Second, as he again admitted, his recollection that he was a student at the time, reflected in the Application which he filed with the Tribunal, was incorrect. Third, his recollection was that only two officers were involved when in fact there were three. Further, his allegation that Cortez and Patel were the officers involved is not based on a specific recollection of either of them (indeed, the only former security officer whom he recognized at the hearing was Sheeder), but rather appears to be based on the fact that their badge numbers are given on the notice of trespass and perhaps an analysis of the reports which were produced by Ryerson, which refer to the officers by their badge number.

29The evidence of the applicant is also contradicted by the evidence of Patel. Patel had a specific recollection of the applicant and appeared to have a specific recollection of the events. It is plausible that he would: this was his first job in Canada and this was a very serious incident. Patel also testified that he was out of the room at the time that the applicant disclosed that he had been to CAMH. This is corroborated, to a degree, by the report prepared by Sheeder immediately following the incident (and long before this Application was filed). That report records the fact that when Cortez entered the room, Patel left. The report also records the applicant’s disclosure that he had been at CAMH as occurring after that point in time. This appears to be consistent with handwritten notes taken by Sheeder during the interview. The next reference to Patel in the report is when he issued the notice of trespass. While the report does not indicate when Patel re-entered the room, Patel’s evidence as to the policy of not having more than two officers in the room with an individual at a time is inherently plausible and consistent with the fact that he was not present at the time the disclosure with respect to CAMH was made. Finally, I note that on Patel’s evidence the period of time during which the applicant was being escorted following the issuance of the trespass notice was extremely short, since the applicant was only escorted a distance of ten feet. It is unlikely that there would have been sufficient time for the comment to have been made in the manner remembered by the applicant.

30Lastly, I note that there was no dispute that this was a serious incident and that it was treated as such. There is no dispute that the security officers had learned that the Toronto Police considered the applicant to be argumentative and combative. It is unlikely in these circumstances that the security officers would do something which could antagonize the applicant.

31I conclude, therefore, notwithstanding the applicant’s sincere belief, the statement he recalls being made as he was being escorted out was not in fact made.

32Accordingly, the Application is dismissed.