Adani v. Toronto Police Services Board, 2013 HRTO 1036

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hussein Adani

Applicant

-and-

Toronto Police Services Board and Pavel Dzangalovski

Respondents

DECISION

Adjudicator: Brian Cook

Date: June 11, 2013

Citation: 2013 HRTO 1036

Indexed as: Adani v. Toronto Police Services Board

APPEARANCES

Hussein Adani, Applicant

Osborne Barnwell, Counsel

Toronto Police Services Board and Pavel Dzangalovski, Respondents

David Gourlay, Counsel

Introduction

1Hussein Adani owns and operates a restaurant in downtown Toronto. Pavle Dzangalovski, is a parking enforcement officer employed by the Toronto Police Services Board. Mr. Adani alleges that Officer Dzangalovski has engaged in a campaign to drive him out of business by issuing parking tickets to him and his customers. The applicant alleges that this campaign was motivated by discrimination on the basis of race, colour and ethnic origin. The applicant also alleges that the personal respondent made racist comments to him on at least two occasions.

2The Application was heard on January 30, 2013. In advance of the hearing, the respondents advised that they wished to have a court reporter present to record the proceeding, however, they asked that they not be required to produce a transcript from the recording. At the hearing, the respondents advised that the recording was necessary in case they wanted to seek a judicial review of the Tribunal’s Decision on the Application. I concluded that as a matter of fairness to the applicant, it was appropriate for the respondents to provide a copy of a transcript. The transcript was produced and filed with the Tribunal on April 15, 2013.

3The history of how this Application has been processed to the time of the hearing is set out in Interim Decision 2012 HRTO 1614, dated August 23, 2012.

4As noted in the Interim Decision, a preliminary hearing was held by telephone conference call on August 17, 2012. The issues at that hearing were:

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?

5For the reasons set out in that Interim Decision, following the August 17, 2012 hearing, the allegations in respect of alleged incidents in the period from 2002 to 2005 were dismissed for delay. With respect to the remaining allegations, I found that it was not possible to determine whether there was a delay issue or whether there was a reasonable prospect of success in regard to them without hearing evidence from the applicant. In particular, I determined that it was necessary to hear evidence from the applicant about comments that the applicant alleges were made by the personal respondent in the summer of 2009 and on January 1, 2010.

6The hearing on January 30, 2013 was scheduled for that purpose.

7As discussed further at that hearing, for the applicant to be able to succeed, it is necessary that he prove that the personal respondent made the racist comments that the applicant alleges were made, because, in the absence of those comments, there is no clear connection between the allegations that parking tickets were improperly issued and the Code.

8At the hearing, Mr. Barnwell noted that the applicant is entitled to rely on circumstantial evidence to help prove that the comments were made. This circumstantial evidence includes the applicant’s evidence about parking tickets that were issued by the personal respondent.

Background

9The applicant testified that he came to Canada as a refugee from Somalia in 1988. He became a Canadian citizen in 2000. Since 2001 he has operated a restaurant that is located in Toronto on Dundas Street near Jarvis Street. The restaurant specializes in African, Mediterranean and Middle East food. The clientele are diverse but a majority are Black people of African descent.

10The applicant testified that patrons who come to the restaurant by car must park on the street as the restaurant has no parking spots on its property. His restaurant is on the south side of Dundas Street. The applicant alleges that food businesses on the north side of the street, including a Pizza Hut and a poutinerie, are treated differently than his business in that the personal respondent will ticket cars belonging to his customers but will not ticket cars associated with the businesses on the north side of the street.

11The applicant was asked about his knowledge of the parking regulations on the north and south sides of Dundas Street in the block where his restaurant is located. He testified that to his knowledge, no parking is allowed on either side of the street all day and that no stopping is allowed in the rush hour periods. In cross examination, the applicant indicated that he was not really certain about the parking regulations and whether they were the same on the two sides of the street although he was certain that no parking was permitted on either side of the street.

The applicant’s evidence about the 2009 incident

12The applicant testified that one day in the summer of 2009 he was preparing food for one of his customers when he saw the personal respondent through the window of the restaurant. The personal respondent was on the north side of the street. He saw the personal respondent walk by three cars that were associated with the Pizza Hut without issuing a ticket. The applicant indicated that these three cars were used for pizza delivery and the drivers put a note on the car dashboards to indicate that they were on pickup. The personal respondent then came to the car of the applicant’s customer and proceeded to issue a ticket.

13The applicant alerted a second customer who also had a car parked across the street and told this customer to quickly drive his car away. He arranged to have the customer’s food ready for take-out and went out on the sidewalk so that he could give the food to the customer who was driving his car around the block, having moved it in time to escape being ticketed. He indicated that the two customers who were involved were Black men of African descent. He added that they never came back to the restaurant.

14The applicant testified that the personal respondent noticed him on the sidewalk, and called out to him “See African guy, I chased your client away”. In elaborating on this evidence, the applicant testified that the personal respondent said “African boy, I chased your client to close your business”. In cross-examination, the applicant agreed that he was not sure of the exact statement that was said but that the personal respondent had referred to him as “African”.

15The applicant testified that he did not say anything to the personal respondent on this occasion, either before or after the personal respondent allegedly made the comment.

16He testified that similar unfair ticketing occurred on previous occasions and that on at least one of the occasions he verbally complained to the personal respondent and said that he would take the personal respondent to court for his actions.

The 2010 incident

17The applicant testified that on January 1, 2010, he was standing on the sidewalk outside the restaurant having just arrived in the morning to open up. He testified that the personal respondent drove up in a police car. The personal respondent rolled down the car window and said “African guy, you see, I chased your client.” The applicant testified that no other comment was made on this occasion and he did not respond to the comment.

18The applicant testified that the comments that were made on the day in the summer of 2009 and on January 1, 2010 have affected him. He testified that he has nightmares involving the personal respondent. His business has declined and he believes that this has happened at least in part because the personal respondent has issued parking tickets to his customers who then do not come back. He testified that he never told anyone about the comments that he alleges were made by the personal respondent. He did not tell family members that live with him because he did not want to upset them.

Officer Dzangalovski

19The personal respondent testified that he has been a parking enforcement officer for about ten and a half years. He is generally assigned to the 51 Division area which includes the area where the applicant’s restaurant is located.

20The personal respondent testified about the process of issuing a ticket. He said that he carries a handheld set that it is in communication with the parking office. He enters his badge number and a pass code, and then enters the license number of the car to be ticketed and other identifying information about the car. He then enters the street address where the infraction has occurred and the time. He indicated he issues an average of 1,200 to 1,300 tickets a month.

21The personal respondent testified that he had no conversation of any kind with the applicant in either 2009 or 2010. He said that in previous years, the applicant had complained to him about tickets he had issued. He recalled the applicant specifically complaining about the fact that his customers were ticketed and his complaint that the customers of the other food businesses were not. He recalled that he had told the applicant that he ticketed the customers of all of the businesses. He thought that the applicant had made these complaints three to five times in the period after 2002. He recalled that on at least one occasion the applicant said that he would take the personal respondent to court about the ticketing.

22The personal respondent testified that he has ticketed cars parked on the north side of the street, including cars that have identification indicating they are associated with the Pizza Hut restaurant. He indicated that there is no parking during the day on either side of the street. The rules about no stopping and no standing are not the same on both sides and the difference relates to the timing of the morning and afternoon rush hours. The personal respondent testified that he has some discretion about whether to ticket. If a car is stopped for up to fifteen minutes to make a delivery he may refrain from ticketing even though the car may be stopped in a no parking area. However, if the car is stopped during a time when there is no stopping, he will likely issue a ticket.

Analysis

23Section 1 of the Code provides:

1. Every person has a 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, gender identity, gender expression, age, marital status, family status or disability.

24The provision of police services is a “service” under section 1 of the Code. The applicant alleges that the personal respondent issued parking tickets to the applicant’s customers and not to the customers of other food businesses, and that the reason for this different treatment was the applicant’s race, ancestry, place of origin, colour or ethnic origin. If the applicant could prove that this occurred, the applicant would have established that his Code-protected rights have been infringed.

25Under the Code the applicant has the burden of proof. In this case, the applicant must be able to show that it is more probable than not that the personal respondent made the racist comments that the applicant alleges were made.

26The applicant has no direct evidence to support his allegation that the personal respondent made two racist comments. There was no witness to the alleged events or comments.

27For the applicant to succeed in this case I must be satisfied that his evidence about the events is credible and reliable. The standard test for the assessment of credibility was discussed in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, a decision of the British Columbia Court of Appeal:

(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

28On behalf of the applicant, Mr. Barnwell notes that the personal respondent agreed that there had been interactions between the applicant and the personal respondent in the past, going back as far back as 2002, when the applicant complained to the personal respondent about tickets. He submits that the applicant has been essentially consistent in what he alleges was said by the personal respondent on the occasion in the summer of 2009 and on January 1, 2010. Mr. Barnwell further suggests that the evidence shows that the applicant has complained on various occasions over the years about tickets the personal respondent has issued.

29I agree that the evidence shows that the applicant complained about tickets that were issued by the personal respondent. In the early years, he complained mostly about tickets that were issued to his car. Later, after he stopped driving, he complained about tickets that were issued to his customers.

30I have no doubt that the fact that customers of the restaurant receive parking tickets while at the restaurant is bad for business. However, this seems to me to be an inevitable problem for a restaurant in downtown Toronto that does not have its own parking facilities. If a customer parks their car in a no parking zone there is obviously a risk that the customer is going to get a ticket. If that happens, the customer may decide not to go back to that restaurant, at least not by car. The applicant does not dispute that tickets were issued to his customers’ cars that were parked in a no parking zone.

31It is obviously not discriminatory for a parking enforcement officer to issue parking tickets to cars that are parked in a no parking zone. That is in fact what parking enforcement officers are supposed to do. It is probably very rare for this to be a positive experience for the recipient of the parking ticket. For the applicant, it would naturally be annoying if customers are ticketed while they are at the restaurant and it could have a negative effect on his business.

32The personal respondent testified that he has some discretion about whether to issue a ticket or not. He said he may refrain from ticketing if he is aware that the car is only stopped for a brief period, for example while making a pick up or delivery. He said that when issuing tickets on the block of Dundas Street in question, he did not discriminate as between cars of customers who may have been in the applicant’s restaurant and cars of customers who were at other restaurants.

33The applicant testified that at the time of the incident in the summer of 2009 he saw the personal respondent walk past cars associated with other businesses without ticketing and then observed the personal respondent ticket the car belonging to the applicant’s customer. The applicant’s testimony is of course evidence. However, what he actually testified to was that the personal respondent did not ticket cars belonging to the drivers of the Pizza Hut which had some sort of identifying sign in the window. This is different than evidence that the personal respondent did not ticket the cars of customers of other restaurants. The applicant suggested that this also occurred and he generally alleged that customers of other food businesses were not ticketed but his customers were. However, he provided no evidence of any time when this actually occurred. I am also not clear how the applicant could keep track of which cars belonged to customers of other food businesses or how the personal respondent could have kept track of which cars belonged to the applicant’s customers.

34Leaving this aside, another problem with the applicant’s case is that while he says that the personal respondent was on a campaign to drive him out of business, his allegations, at least with respect to the period that is the subject of the hearing, do not suggest any such campaign. While the applicant provided copies of various tickets and court summonses in respect of unpaid tickets in the years before 2008 there seems to be evidence of only one ticket in 2009 (the ticket issued to the one patron in summer of 2009 incident) and no tickets in 2010. If the personal respondent actually was on a campaign to drive the applicant out of business by ticketing the applicant’s customers, it would seem that he did not pursue this campaign very vigorously.

35Given this, the applicant’s allegation about the alleged racist remarks seems to me to make little sense. The allegation is that the personal respondent said something along the lines of “see, African guy/boy I am chasing your clients away”. Even assuming that this remark might make sense in some contexts, and particularly if there were evidence that the personal respondent had been issuing tickets to the applicant’s customers. However, the applicant’s evidence indicates that in the period from 2009 to 201, only one ticket was issued to one of his customers by the personal respondent. The applicant has said that more tickets were issued to his customers by other officers and he has suggested that these tickets were in fact issued by the personal respondent, posing as other officers, in order to cover up. The personal respondent denied that he had done this and testified that it would be very difficult to issue a ticket while posing as another officer.

36The applicant has not provided any evidence to support this allegation. Based on the personal respondent’s testimony about how tickets are issued and the technology involved, I accept that it would be difficult to issue a ticket while posing as another officer and that it would be very difficult for this to happen without discovery by the police department. I also find that this allegation too does not make sense as I can see no reason why the personal respondent would want to or need to issue tickets while posing as another officer when he could just issue the tickets himself.

37In assessing the applicant’s evidence I cannot conclude that it is in harmony with the preponderance of the probabilities and I find that I am unable to rely on it as credible evidence. In the absence of credible evidence, I must conclude that the applicant has not proved that the personal respondent discriminated against him contrary to the Code.

36For all of these reasons, I find that the applicant has not established that it is more probable than not that the personal respondent made the alleged racist remarks in the summer of 2009 or on January 1, 2010. In the absence of evidence of racism, the applicant has also failed to establish that the personal respondent improperly issued tickets to the applicant’s customers on any grounds under the Code. For these reasons, the Application is dismissed.

DECISION

38The Application is dismissed.