HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jamal Hamed
Applicant
-and-
Toronto Police Department/Divisions 14, 11 and 51, Melinda McAskill and Catherine White
Respondents
DECISION
Adjudicator: Alison Renton
Indexed as: Hamed v. Toronto Police Department
APPEARANCES
Jamal Hamed, Applicant
Self-represented
Toronto Police Department/Divisions 14, 11and 51, Melinda McAskill and Catherine White, Respondents
Glenn Chu, Counsel
1This is an Application filed on May 23, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services (policing) because of race, place of origin, creed, and reprisal. The applicant self-identifies as being of “east African origin blended with middle eastern features”, “my spoken Arabic language” and his creed “being a Muslim minority”.
2At the time of filing his Application, the applicant had also filed a complaint with some of the same allegations to the Office of the Independent Police Review Director (“OIPRD”). By letter dated June 20, 2012, OIPRD advised the applicant that it had no jurisdiction over his February 2006 allegation as it pre-dated the legislation under which it was created; the Director had exercised his discretion not to deal with the applicant’s allegations from March to October 2011 as they were more than six months old; and determined his February 2012 allegation to be frivolous.
procedural background
3The Tribunal sent the applicant a Notice of Intent to Defer, dated July 17, 2012, in which the Tribunal advised that it may be appropriate to defer the consideration of the Application pending the resolution of his complaint filed with the OIPRD. The Tribunal sought the submissions of the applicant and stated that the respondents were not required, at this stage, to file a Response.
4The applicant opposed deferral. He provided a copy of a June 20, 2012 letter from OIPRD closing his complaint. In Interim Decision dated August 21, 2012 (2012 HRTO 1601), the Tribunal determined that deferral was not appropriate, stated that the Application would proceed, and required the respondents to file a Response.
5The respondents filed a joint Response and a Request for Summary Hearing. Prior to May 2013, the applicant did not file a Reply to the Response, nor a Response to a Request for Order During Proceedings and the time for doing so elapsed.
6A Case Assessment Direction (“CAD”) dated December 20, 2012 was issued by the Tribunal granting the respondents’ Request for Summary Hearing. Further, the Tribunal also stated that it appeared that some of the allegations may be untimely. The Tribunal scheduled a half day conference call hearing to hear the parties’ submissions on whether or not the Application, or part of it, has no reasonable prospect of success and whether or not some of the allegations were untimely. The parties were directed to deliver to each other and file with the Tribunal copies of any further documents or cases they intended to rely upon no later than 14 days prior to the summary hearing. No party filed additional materials prior to the summary hearing.
7The summary hearing was held by teleconference call on April 2, 2013 (“the summary hearing”). During the conference call, the Tribunal heard submissions from the parties. These submissions, as well as the materials that the parties filed with the Tribunal, including pictures and video clips that the applicant submitted, have all been carefully considered by the Tribunal.
8More than a month after the conference call hearing, the applicant filed a Request for Interim Remedy, although the personal declaration was missing. Subsequent to that, the applicant filed a Reply in which he makes separate submissions to the respondents’ Response as well as to the respondents’ Request for Summary Hearing. As these were submitted after the summary hearing, the Tribunal advised the respondents, copying the applicant, that they need not respond to the applicant’s new materials. These materials have not been considered by the Tribunal in issuing this Decision, except to note the following. The Request for Interim Remedy seeks to reduce the amount of monetary compensation the applicant is seeking from the respondents and to re-iterate his request that he not be subjected to harassment, discrimination and intimidation by the respondents. The subsequent material seeks to add additional respondents to the Application and the applicant’s agreement to mediation-adjudication, submit additional documentation, a Reply to the Response and a Response to the respondent’s Request for Summary Hearing.
the allegations
9Attached to the applicant’s Application was a document entitled “Statement of Complaint against Toronto Police Officers” (“the Statement”), in which the applicant, in a very detailed, coherent and organized manner, set out his allegations. He also submitted many photographs and video clips in which police vehicles, in the locations and on the dates and times that are part of his allegations, are shown. The respondents confirmed during the summary hearing that they had received the Statement as well as the photographs and the video clips.
10The applicant’s allegations can be separated into three different types of interactions with the police. First, there are the personal interactions between the applicant and the respondents. Second, there are the applicant’s observations of police presence, from 11, 14 and 51 Divisions, around the streets of Toronto, including his neighbourhood, and other neighbourhoods that he frequents. The applicant lives in the downtown Toronto. Third, there are the reportings that the applicant made to different senior police officials at 11, 14 and 51 Divisions.
The personal interactions
11The applicant alleges that on 11 different occasions between February 2006 until March 17, 2012, he was subjected to harassment, discrimination, and intimidation from various police officers, including the personal respondents, because of their personal contact with him. The specific dates are, in chronological order: February 29, 2006 around 5:00 pm; February 19, 2007 around 8:30 am; “between winter 2008 and spring 2009”; “summer 2009 during afternoon time”; “towards winter of 2011 around 9 pm”; March 24, 2011; May 25, 2011; “between 19 to 26 October 2011 at around 830 – 9:30 pm”; February 17, 2012; and March 17, 2012. Given my reasoning, below, that the allegations that pre-date May 2011 are untimely, I need not set out in detail the allegations before that time. The allegations post-May 2011 are set out below.
May 25, 2011 at 2:00 am
12The applicant alleges that he drove out of his residence’s underground parking lot, where he noticed a police vehicle close by, drove to a neighbouring street, made a “safe U turn”, parked his car by a local Coffee Time coffee shop, and got out of his car to purchase a coffee. As he walked to the coffee shop, he noticed that the police car had moved locations and that the female officer, the personal respondent McAskill, looked towards him with “an investigative look”.
13On his way back to the car, the applicant noticed that the car had changed locations. He drove his car, noticed the police car did a U turn and followed him for a few blocks until he was stopped by the officer. The officer asked him for his identification and car documents but would not provide him with a reason as to why he was stopped claiming, “I don’t have any reason and I don’t need any”. After some back and forth, the applicant provided his documentation and was issued two tickets: one for failing to comply with the officer’s directions and the other for failing to surrender his insurance card.
14The applicant challenged the tickets in court, where they were dismissed.
15In their Response, the respondents submit that the applicant was pulled over because the personal respondent McAskill observed the applicant walking down the street, with “his right hand on his penis and kept pulling at it through his pants. He repeated this action numerous times”. After he got into a vehicle, given his previous actions on the street, personal respondent McAskill pulled behind the vehicle and asked the applicant to stop. She requested that he, as the driver, produce his driver’s licence, ownership and proof of insurance for the vehicle. When he challenged her direction, she called for backup and ultimately issued him several tickets. When giving him the tickets, the applicant spat on the sidewalk, for which he was issued another ticket.
“Between 19 to 26 October 2011 at around 830 [sic] – 9:30 pm”
16The applicant alleges that on a date between October 19 to 26, 2011, between 8:30 to 9:30 p.m., a “white, male, undercover officer” knocked on the applicant’s apartment door. The undercover officer produced a police badge, told the applicant he was searching for a missing undercover colleague, and asked to search the applicant’s apartment for the colleague. The applicant consented, the undercover officer quickly looked around, and then left the applicant’s apartment.
17The undercover officer made some “quick knocks to a couple of doors in his way”, and another tenant, whom the applicant described during the summary hearing as “Jamaican”, also let him into his apartment.
18A few minutes later, the applicant saw some uniformed officers walking the hallway, told them about the undercover officer and suggested that the undercover officer ought to have been accompanied by building security. Later, the applicant learned that there had been a drug bust in the building.
19The applicant says that he felt discriminated against because the undercover officer had knocked on the applicant’s door, but not most of the other tenants on the applicant’s floor.
20The respondents submit that this allegation is lacking in particulars such that it is not in a position to provide any meaningful response to the allegation. They submit that there is no link to the Code and this allegation such that the allegation should be dismissed.
“Towards Winter of 2011”
21The applicant alleges that towards the winter of 2011 around 9 p.m., while he was a prayer centre, three police officers entered the prayer centre and, during prayers, removed an individual who was “ironically next and adjacent to me”. The officers claimed that a neighbour reported the individual as “suspicious” and spoke to him in the presence of others and cleared him. This act was, the applicant alleges, “a clear gesture of intimidation to me as well as to others”.
22The respondents did not specifically address this allegation in their Response.
February 17, 2012
23The applicant alleges that around 8:00 p.m., he was followed by a police cruiser, which he identifies, from Parliament Street and Dundas Street until he was stopped by the cruiser at Yonge Street and Dundas Street. The applicant alleges that the officer asked him for his identification, car documents, where he was going and what he does. The applicant was told that he was pulled over because he changed lanes without signalling, driving carelessly and carrying an entertainment device, all of which the applicant disputed. The officer took the applicant’s papers, went into his cruiser, came back, handed the papers back and let the applicant go.
24The applicant alleges that he had been followed this same route, commencing at the Tim Horton’s located on the corner of Parliament Street and Dundas Street by other officers at different times and days. He submitted a picture of a cruiser at this location on another date.
25The respondents did not specifically address this allegation in their Response.
Saturday, March 17, 2012
26On March 17, 2012 at approximately 10:15 p.m., the applicant alleges, he was entering his apartment building and observed two officers standing at the entrance with a civilian next to them. As he passed, one of the officers asked how he was doing. The applicant did not reply and the second officer said “Yeh spill it out”! and “thanks for asking” while looking between the applicant and the first officer.
27The applicant went to his apartment, but returned to the entrance to obtain the badge numbers of the officers. As he reached the entrance, two more officers, on bicycles, arrived; the civilian was no longer present. The applicant told them that he needed to see their numbers “for initiating unnecessary talk towards me” and looked at the first officer’s badge. The officer said “you are [a] spitter” more than once towards the applicant. The applicant disputed this and asked to see where the spit was located. The officer claimed that the applicant had been spitting “far in front of us”.
28As the applicant had forgotten the officer’s number, he asked to see their badges again. A female officer, who arrived, told the applicant he only had “one chance” and “don’t mess with Goness brothers”. The applicant surmises this is in reference to the name “Joness” written on the officer’s uniform. The applicant told the officers, “You were here for the same usual harassment and I will try to stop you by the law”. The applicant returned to his apartment.
29The respondents did not specifically address this allegation in their Response.
Police presence
30The applicant alleges that police from 11, 14 and 51 Divisions have engaged in a prolonged and systematic pattern of discriminatory tracing and following his person designed and orchestrated to demonstrate to him their presence. “They want to show me their presence is there”, he submitted, “and to intimidate me although they might have been doing other things as well”. He alleges that on 35 occasions, between February 3, 2012 to May 12, 2012, he observed officers from these three divisions around his neighbourhood, neighbourhoods that he frequents, and other locations within the downtown Toronto corridor. The applicant lives in a downtown Toronto neighbourhood and many of his daily activities also take place in and around downtown Toronto. The applicant set out in detail the dates, times and locations of the observed police presence, as well as, for many of the allegations, supporting photographs and video clips showing the police as he has alleged.
31The police, the applicant asserts, know that he is a Muslim because he sees them present at locations close to the prayer centres that he attends and around the times of his prayers. The police presence “…coincide[s] with the exact time of prayer that I show up on the streets going for prayers and shopping on my way sometimes if I am not busy otherwise elsewhere for other reasons”. 10:00 p.m., is, “my return times to home”.
32The prayer times are identified, in his Application, as being “1 pm 1:30 pm 2:00 pm 2:30 pm 4:00 pm 4:30 pm 5:45 pm 6:00 pm 6:30 pm 8:00 pm and 10:00 pm”. He provided a picture of the prayer times posted at one of the prayer centres showing prayer times as 5:45 a.m., 1:45 p.m., 6:00 p.m.; 8:07 p.m.; 9:45 p.m., and Friday congregations as 1:20 to 1:30 p.m. He asserts that Fridays are “notably their favourite day for their practices of harassment”.
Reported Systemic Discrimination to Various Police Officials
33The applicant alleges that he told supervisors at the three Divisions that he had some concerns with officers from their respective division.
34Specifically, he states that on February 18, 2012, around 2:30 p.m., he went to 14 Division’s office and told a supervisor, whom he identified, that he intended to file a complaint about the officers from 14 Division and “in particular about those who were involved in the incidents”. The supervisor referred him to the OIPRD application booklet.
35On the same day, at 3:00 p.m., he spoke with a police constable, whom he identified, at 11 Division, about police officers driving along the street on February 14, 2012 at 2:15 p.m and about some of the Division’s officers harassing him. The police constable referred the applicant to the OIPRD process.
36At 4:00 p.m., the same day, the applicant attended 51 Division and complained to a sergeant, whom he identified, about being pulled over on February 17, 2012 at 8:00 p.m. and about the Division’s patrol practices. The applicant was referred to the OIPRD application.
37On March 30, 2012, the applicant attended 14 Division, and told a supervisor, whom he identified, of his intention to file a complaint against the station and its officers in relation to the incident on March 17, 2012. The applicant was eventually referred to OIPRD.
Delay
38At the summary hearing, the applicant reiterated the reasons for his delay in filing his Application as those which he provided on his Application. They are: he was going through the courts and wanted to find out the outcome of those proceedings first; and he told the various police divisions that he was experiencing systemic discrimination and wanted to gather evidence in support of his allegations before filing his Application. During the summary hearing, he advised that he did not receive a notice from the Tribunal when he filed his Application, advising that some of his allegations were untimely. His reasons amount to good faith, he asserts, and furthermore, they are all part of a continuing pattern of conduct which becomes part of a series of incidents. The respondents’ request for summary hearing was put forward to discredit his application and to have it dismissed.
39The respondents dispute that the reasons advanced by the applicant constitute good faith and seek that the allegations which pre-date May 2011 be dismissed.
Reprisal
40During the summary hearing, the applicant stated that based upon the respondents’ attitude and his general experience with them, the respondents may want him to look down and feel fearful when dealing with the police as a way of demonstrating respect towards them.
analysis
Delay
41Section 34(1) of the Code provides:
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.
42In Garrie v. Janus Joan Inc., 2012 HRTO 1955, a panel of the Tribunal commented on a “series of incidents” within the meaning of section 34(1)(b) of the Code in relation to continuing wage payments that the applicant alleged were discriminatory, but had received, without objection, for more than 10 years. The Tribunal stated, at para. 30:
A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:
a. What is the last alleged incident of discrimination to which the Application relates?
b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?
d. What is the temporal gap between alleged incidents of discrimination?
43The Tribunal has held that a temporal gap, of more than a year, interrupts a “series of incidents”. See, Bartley v. Hamilton Urban Core Community Health Centre, 2013 HRTO 279 at para. 21; Chintaman v. Toronto District School Board, 2009 HRTO 1225; and Theriault v. Toronto Police Services, 2012 HRTO 2163
44This Application was filed on May 23, 2012. Accordingly, any of the applicant’s allegations that pre-date May 2011 are outside the mandatory one year limitation period established by section 34(1) of the Code. In finding that those allegations that pre-date May 2011 are untimely, I note that there is a gap of more than one year between the allegation pertaining to the summer of 2009 and “towards winter of 2011” if those words mean, at the earliest, a November or December 2010 time frame and noting that winter officially begins on December 21 or 22. Of course, if “towards winter of 2011” means the winter commenced December 2011, then the gap is more than two years. Accordingly, even if there was a “series of incidents” between the allegations from February 29, 2006 until “towards winter of 2011”, which I do not have to find in this Application, they are broken by the gap of more than a year.
45If an applicant seeks to rely upon an untimely allegation, he or she must satisfy the Tribunal that the delay in raising the allegation was incurred in good faith pursuant to section 34(2) of the Code. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
46In his Application, and in response to the question, “If you are applying more than one year from the last event, please explain why”, the applicant submitted that he was waiting for the outcome of his traffic court trial pertaining to the May 25, 2011 incident before filing the Application. He also wrote that he was raising issues of systemic discrimination over a number of years, gathered information and put “the pieces together” along with photographic and video evidence, which was a tiring and consuming process. During the summary hearing, the applicant added that it is not practical to file a complaint after each incident and that the Tribunal did not raise the issue of delay when he filed his Application. Further, he submitted that the fact the respondents filed delay submissions in their materials was to discredit his Application and have it dismissed.
47The Tribunal has repeatedly rejected the submission that waiting for another legal proceeding to conclude before pursuing one’s rights under the Code constitutes a good faith reason for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 670.
48Furthermore, while I appreciate that the applicant may have spent considerable time and effort into preparing his Application, this does not eliminate his obligation to do it in a timely manner and has been found not to constitute good faith. See Smith v. Ontario (Education), 2012 HRTO 429 at para. 24.
49The Tribunal may not have identified that a number of the applicant’s allegations were untimely initially when the applicant filed his Application. However, the Tribunal did identify this as an issue in its December 20, 2012 CAD and it was part of the summary hearing.
50The applicant says that rather than filing a number of different Applications, he waited and filed one Application consisting of a number of allegations over a long period of time. While practically this may be easier for an applicant, this explanation is not sufficient to constitute a good faith explanation for the delay in filing an Application as required by section 34(2) of the Code. See Zafur v. Reay, 2013 HRTO 408 at para. 18.
51Accordingly, I find that the applicant has not provided a good faith explanation to explain the delay in raising any allegations that pre-date May 2011. Accordingly, any allegations that pre-date May 2011 are dismissed as being untimely.
No Reasonable Prospect of Success
52Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 to 10:
In some cases, the issue at the summary hearing may be whether assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether three is a reasonable prospect that such evidence may lead to a finding of discrimination. However, then there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
“between 19 to 26 October at around 830 – 9:30 pm”
53Despite the ambiguity in the allegation, as neither the date nor the individuals involved are specified, I find that this allegation does not have a reasonable prospect of success and is dismissed.
54Even if the events are as the applicant describes, there is no connection between the applicant’s race, place of origin, or creed and the behaviour described of other the undercover officer or the uniformed officers. The applicant quite clearly asserts that the undercover officer knocked “hard” on his door and there is no information that the applicant was targeted, that the undercover officer knew his name or other Code-related characteristics. Further, the applicant confirms that the undercover officer knocked at least on the door of another tenant, from whom the applicant differentiates, which does not support the applicant’s allegation that he was discriminated against for a Code-related reason. Accordingly, this allegation is dismissed.
“Towards Winter of 2011”
55As noted above, it is unclear whether this allegation pertains to December 2010, for the winter months in early 2011, or pertains to December 2011 and the winter months in early 2012. If it is early 2011, then the allegation, as noted above, is untimely and is dismissed.
56If the allegation pertains to the time period of December 2011, it is timely. However, it stands no reasonable prospect of success and is dismissed. The allegation is not specifically about the police officer’s conduct towards the applicant, but relates instead to how the police dealt with another individual whom they removed from the prayer centre and questioned. The Tribunal has held that allegations that do not pertain specifically to an applicant are dismissed. See Freitag v. Penetanguishene (Municipality), 2010 HRTO 1704.
57Furthermore, other than alleging that this police officer’s conduct was a “clear gesture of intimidation to me and others”, the applicant does not provide any link between, in this case, his creed, and the conduct of the officers. In this situation, more is required apart from a bald assertion.
May 25, 2011 and February 17, 2012
58I find that these allegations have no reasonable prospect of success. Therefore, they are dismissed.
59Essentially, the applicant disputes the reasons for which he was pulled over and issued tickets on May 25, 2011 and February 17, 2012. He is entitled to do that; however, disputing the issuance of tickets is something to be addressed and determined in highway traffic court proceedings, which the applicant has done.
60In both allegations, the applicant has made bald allegations that being pulled over amounted to racial profiling, or discrimination on the basis of race, place of origin, creed. This, in the absence of anything more, is not sufficient in establishing that his allegations have a reasonable prospect of success and as such they are dismissed.
61I recognize that in policing cases, inferences can be drawn from indirect evidence to establish racial profiling, as has been considered in Shaw v. Phipps , 2012 ONCA 155 and the very recent Ontario Court of Appeal decision in Peel Law Association v. Pieters, 2013 ONCA 396. However, apart from disputing the driving charges for which he was pulled over, and generally alleging that he was pulled over for discriminatory reasons, in the absence of anything more, this allegation cannot continue and it is dismissed.
March 17, 2012
62The allegations about the applicant’s interactions with several police officers in front of his apartment building are also dismissed as having no reasonable prospect of success. Apart from taking issue with the officers for engaging in “unnecessary talk” with him, the allegations as presented do not demonstrate any link or connection between the applicant’s Code grounds and the officer’s conduct. In fact it is unclear how the officer’s conduct could amount to a violation of the Code even assuming the allegations to be true.
63These allegations are dismissed as having no reasonable prospect of success.
Police presence
64Apart from the allegation from February 17, 2012, when the applicant was pulled over at Yonge Street and Dundas Street, which is addressed above, I do not find that the applicant’s allegations with respect to the police presence on the streets of Toronto from February 3, 2012 to May 12, 2012 to have a reasonable prospect of success and accordingly, these are dismissed.
65While I will be commenting about only some of the 35 instances pleaded, I have carefully reviewed the photographs and video clips that the applicant submitted to the Tribunal, as well as the applicant’s allegations, and find that there is nothing which indicates that the police are present only because of the applicant let alone because of his Code characteristics.
66With respect to the applicant’s allegations that the police were present around the prayer centres that he frequents and/or observed on the streets of Toronto as the applicant was heading to a prayer centre, it does seem that the applicant observed police officers, on bicycles or in vehicles, on various occasions, sometimes, but not always, coinciding with the prayer’s centre’s prayer times that he identified. There are two prayer centres identified, in different downtown locations, and the applicant’s allegations pertain to different officers, different modes of transportation (on foot, bicycle and car) and different vehicle numbers. In one allegation (April 12, 2012 at 1:30 p.m.), the applicant observes an empty parked police vehicle.
67Apart from the prayer centre allegations, in some of the incidents, the applicant alleges that the police officer(s) looked at him. For example, On February 13, 2012 at 5:45 p.m., the applicant observed several police officers walk into the Wal-Mart located at Dufferin Mall as he exited the store. On February 13, 2012 at 4:20 p.m., a police officer enters a Tim Hortons store located in a neighbourhood that he frequents, as the applicant exits the store.
68In other incidents, the applicant observes a police vehicle in his own neighbourhood, or on the streets of Toronto, but there is no interaction. On February 15, 2012 at 3:20 p.m. the applicant observed a police court van in the vicinity of Chestnut and Dundas Street. I take judicial note of the fact that this location is very close to the court house on University Avenue. Also on February 15, 2012 at 2:02 p.m., the applicant, who was driving east along King Street towards University Avenue, observed a police cruiser turn right off of University Avenue and drive past him on King Street. On February 18, 2012 at 1:00 p.m., the applicant observes a police car parked on Queen Street, close to a coffee shop, in the neighbourhood where he lives. On April 13, 2012 at 1:30 p.m., the applicant sees a parked, but empty, police car in a parking lot of a store located in his neighbourhood as he drives by the store. On May 2, 2012 8:28 p.m., the applicant observes several police vehicles which are involved in a “seemingly car accident involving a teen age drivers [sic]” in front of a store located close to his residence.
69In some instances, the applicant alleges that the police looked at him as they entered a store (such as the Wal-Mart and Tim Hortons allegations), or as they drove away from a location (February 9, 2012 at 1:08 p.m.).
70In reviewing these incidents from February 3, 2012 to May 12, 2012 either as a whole, or individually, there is no reasonable prospect of success and they are dismissed. While the applicant self-identifies that he was not born in Canada, has “middle eastern features”, speaks Arabic, and is a Muslim, this is not sufficient to establish a reasonable prospect of success. An applicant at a summary hearing must come forward with some reasonable basis to establish that he or she is capable of proving a link to the personal characteristics at issue. It is not enough merely to point to the fact that the applicant is a member of a protected group and suffered adverse treatment. Some basis for a connection between these two assertions must be established. See Patterson v. Mississauga (City), 2013 HRTO 395 at para. 50.
71It is very likely that the applicant, being a resident of downtown Toronto, and frequenting the locations of downtown Toronto that he does frequent, sees police officers from different Divisions patrolling the streets using different modes of transportation. However, he has not provided a connection or link between these sightings and his Code characteristics. Accordingly, the 35 instances that he describes between February to May 2012 are dismissed as having no reasonable prospect of success.
Attending 14, 11 and 51 Divisions with complaints
72It is clear from the applicant’s allegations that on February 18, 2012 he approached the three different Divisions, and on March 20, 2012 he approached one Division to raise concerns about officers from the Division and/or to announce his intention to file a complaint about various instances that occurred to him. In each situation, the applicant advises that he was referred to the OIPRD process. He filed a complaint with the OIPRD, and, by letter dated June 22, 2012, was told about the outcome of his complaints, namely that the allegations were either untimely or were deemed to be frivolous and lacking in substance.
73The applicant does not assert that he was subjected to differential treatment by these by these individuals on February 18 and March 20 when he raised his concerns with them. In each case, the applicant’s concerns were treated seriously and he was provided with information about a complaints process, to the OIPRD, and OIPRD issued a letter to him with an outcome of his complaint. The applicant’s allegations pertaining to raising the issues of complaints with the Divisions on February 18 and March 20 have no reasonable prospect of success before the Tribunal and are dismissed.
Reprisal
74With respect to the applicant’s allegations of reprisal, section 8 of the Code provides:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
75In Noble v. York University, 2010 HRTO 878 (“Noble”), the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established:
a) An action taken against, or threat made to, the applicant;
b) the alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and
c) an intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
76The explanation that the applicant offered in relation to reprisal, the assertion that the police officers want him to look down and feel fearful does not constitute reprisal within the meaning of the Code. The applicant provided no information that he had attempted to assert his Code rights with the police, following which he was subjected to this alleged conduct. The applicant mentioned this alleged conduct for the first time during the hearing, and it was extremely generalized, rather than specifically particularized.
77Even if I consider the times that the applicant attended three police stations on February 18, 2012 and one station on March 20, 2012, the allegations about the police presence and/or conduct following these interactions does not constitute reprisal within the meaning of the Code and as required by Noble.
78Finally, if I consider the applicant’s assertion that he went to the Human Rights Legal Support Centre’s (“HRLSC”) office on February 15, 2012, and on the way at 2:02 p.m. he saw a police vehicle on King Street and University Avenue, and on the way out at 3:21 observed a police court van at Chestnut and Dundas Street, I do not find that this meets the definition of reprisal. There is no evidence made by the applicant that the police were aware that he attended the HRLSC’s offices and no allegations made by the applicant that he had asserted his Code rights with the police at that point.
order
79The Application in its entirety is dismissed.
Dated at Toronto, this 27th day of June, 2013.
“Signed By”
Alison Renton
Vice-chair