Trevor Hughes v. Ontario Provincial Police, 2012 HRTO 609

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Trevor Hughes

Applicant

-and-

Her Majesty the Queen as represented by the Minister of Community Safety and Correctional Services (Ontario Provincial Police)

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: March 23, 2012

Citation: 2012 HRTO 609

Indexed as: Hughes v. Ontario Provincial Police

Appearances

Trevor Hughes, Applicant ) On his own behalf

HMQR (Ministry of Community and )

Correctional Services) (Ontario ) Chris Donszelmann, Counsel

Provincial Police), Respondent )

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”). The applicant alleges discrimination in goods, services or facilities on the basis of race, ancestry, place of origin and association with a person identified by a prohibited ground. He also alleges reprisal or threat of reprisal.

2In a Case Assessment Direction (“CAD”) dated October 25, 2011, the Tribunal ordered that this matter proceed by way of a summary hearing, pursuant to Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure. The summary hearing was conducted by telephone conference on March 2, 2012. I heard submissions from the applicant and from counsel for the respondent.

3I appreciate that the applicant is facing very difficult circumstances. However, this alone is not a basis for a finding of discrimination under the Code. For the reasons that follow, the Application is dismissed. I find that there is no reasonable prospect that the applicant can succeed in establishing the allegations contained in the Application.

THE FACTS

4The circumstances that give rise to this Application are very sad. The applicant recently immigrated to Canada as an investor and farmer from Wales; he states that because of the police’s behaviour, he has lost his home and his livelihood, that his marriage has ended and that he has been prevented from seeing his children.

5In late 2009 and early 2010, the applicant had a number of altercations with police. These are not generally in dispute and can be summarized as follows:

a) In October 2009, police were contacted regarding an incident between the applicant and his neighbour. The incident concerned the application of a lease agreement and the applicant allowing third parties to use his land for hunting. The police took the position that the matter was of a civil nature. The applicant states that the police discriminated against him because they should have laid charges against his neighbour, because they assumed based on his accent that he was drunk, and because nothing was ever done in response to his complaint to police. He says this is at least in part because he was a newcomer to Canada, while his neighbour was established in the community and friends with members of the police;

b) In December 2009, the applicant’s then wife contacted police to report that the applicant was stealing hay from the neighbour’s field. The applicant does not dispute that he was taking hay from his neighbour’s field, although he states that this was in retaliation for the neighbour removing crops from the applicant’s own fields. The police ultimately charged the applicant with theft, although the charges were never pursued. The applicant states that the police threatened to beat him and that he feared for his life. While he was in the police cruiser and the officers were speaking to the applicant’s wife, the applicant attempted suicide. The police took him to hospital, where he was admitted for treatment;

c) In January or February 2010, the police delivered documents to the applicant concerning an application for a firearm prohibition. The applicant states that police shoved the papers against his chest and that one of the officers referred to him as either a “fat Welsh bastard” or a “fat Irish bastard”. The applicant states that the same comment was made to him by an officer on an earlier occasion;

d) During the course of the breakdown of the applicant’s marriage, police were contacted on a number of occasions. At one point, the applicant’s wife contacted police because she was concerned that the applicant had committed or would commit suicide. There were also instances where police had contact with the applicant to enforce a court order restraining the applicant from attending a shelter where his family was residing.

6I understand the applicant to be alleging that he was followed by police and that they often came by when the applicant went out on his land. He also complains of the police’s involvement in the firearm prohibition. While I do not understand the applicant to have alleged any wrongful arrest or failure to respond to the applicant’s calls, he does contend that the police should have taken steps against his neighbour who had trespassed on his land to intimidate and harass lawful users of the applicant’s property.

7The applicant relies on a joint statement that he and his former wife filed in a court proceeding. He states that this statement establishes that he and his former wife were generally in agreement before the police became involved in his case. He argues that this statement assists him in establishing that the police caused the breakup of his marriage.

8In advance of the summary hearing, the respondent filed documents with the Tribunal. It was not, however, able to deliver those documents to the applicant. At the hearing, we discussed how the documents could be delivered to the applicant and whether he wished to have an opportunity to respond to them in writing following the hearing. The applicant indicated that he could not accept delivery of documents. In the circumstances, the respondent withdrew its documents and stated that it did not wish to rely upon them for the purposes of the summary hearing. Accordingly, I have determined the matter without considering these documents.

ANALYSIS

9Section 1 of the Code states:

Every person has the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

10As the Tribunal explained in its earlier CAD, the issue before me in determining this summary hearing is whether the Application has no reasonable prospect of success within the meaning of Rule 19A.1. In other words, I must determine whether the applicant has no reasonable prospect of showing a link between the respondent’s alleged treatment of him and a Code-related ground.

11In considering this issue, I am mindful that the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code.

12In addition, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an Application to continue in the Tribunal’s process following a summary hearing, 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.

13During the summary hearing, I invited the applicant to explain to me why he believes the police’s treatment of him amounts to discrimination based on a Code ground. The applicant explained that he knows other newcomers to Canada who reside in Manitoba and they have had a similar experience. He also argued that he was made a scape goat because of his accent.

14The difficulty with the applicant’s argument is that, in all of the circumstances, there is no basis to conclude that the applicant’s Code-related characteristics were a factor in the respondent’s behaviour. There appears to be a reasonable explanation for the police’s behaviour that is unrelated to a Code ground. For example, given the incidents described above, it is reasonable that the police would attend to the applicant, either on his property or elsewhere. It was also reasonable for the police to arrest the applicant because he was stealing hay.

15The fact that the applicant knows of people in Manitoba who have also had difficulty with the police would not be evidence that the applicant experienced discrimination contrary to the Code. While discrimination or harassment because a person has an accent can, in some circumstances, lead to a finding that the person’s Code-related rights have been infringed, it does not appear that the applicant would be able to prove that his accent had anything to do with the way the police interacted with him.

16It is not for this Tribunal to determine whether or not police appropriately assessed the first incident between the applicant and his neighbour as a civil matter. However, it is clear from the applicant’s submissions that the dispute in question involved the interpretation of a lease agreement. I make no finding as to whether or not the matter was a civil one. However I find that there is a reasonable explanation unrelated to the Code (a dispute concerning a lease), for the police not to lay charges in response to the applicant’s complaint. I find that the applicant has no reasonable prospect of showing that a Code-related ground was a factor in this decision or in the police’s behaviour otherwise.

17Even assuming (without finding) that police did refer to the applicant as a “fat Welsh bastard”, I cannot conclude that, in all of the circumstances of this case, the applicant has a reasonable prospect of establishing that this comment constitutes discrimination.

18First, the applicant’s recollection of the alleged comment is uncertain. In one instance, he does not recall whether the officer or officers in question referred to him as “Irish” or “Welsh” and, while he says that a similar comment was made on another occasion, it was not clear when or in what context the comment was repeated. In the circumstances, it is not clear to me that the applicant has a reasonable prospect of establishing that the comments were made.

19In any event, the use of vulgar terms does not necessarily give rise to discrimination within the meaning of the Code: Haykin v. Roth, 2009 HRTO 2017 at para. 49. Further, the purpose of the Code is not to police the respondent’s every comment, nor does a person’s hurt feelings, anxiety or upset about a situation mean that the Code was violated: Gurney v. McDonald’s Restaurants of Canada, 2011 HRTO 984 at para. 7.

20I accept that being called a “fat Welsh bastard” would be offensive and demeaning, particularly in the circumstances in which the comment is alleged to have been made. However, while the comment as a whole may be humiliating, I am not satisfied that it is discriminatory on the basis of the applicant’s place of origin or any other Code-related ground identified by the applicant. In the particular circumstances of this case, where the applicant cannot recall whether the alleged comment refers to his actual or a presumed place of origin, it is difficult to conclude that reference to a place of origin , even in the context of the offensive comment, is denigrating or humiliating in and of itself.

DECISION

21For all of these reasons, I find that the Application has no reasonable prospect of success. It is dismissed on this basis.