Mohamed Nemmour v. Toronto Police Services Board and Gerry McNeilly, 2013 HRTO 1554

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohamed Nemmour

Applicant

-and-

Toronto Police Services Board and Gerry McNeilly

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: September 16, 2013

Citation: 2013 HRTO 1554

Indexed as: Nemmour v. Toronto Police Services Board

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 and services because of ethnic origin.

2In 2013 HRTO 357 this Application was dismissed as abandoned. The circumstances leading to the dismissal of the Application were described by the Tribunal in a Case Assessment Direction (“CAD”) issued on June 18, 2013:

On January 10, 2013, the Tribunal delivered the Response to the applicant. The letter directed the applicant to file a Reply, addressing the respondents’ requests to dismiss, by January 24, 2013. The applicant did not do so. It appears that this letter may not have reached the applicant because his residential address was no longer valid. The applicant had indicated that he preferred to receive communications by e-mail. The Tribunal’s policy, however, is that it may send important documents by regular mail, even where a party’s preferred method of communication is different (see the Practice Direction on Communicating with the Human Rights Tribunal of Ontario)

The Tribunal issued a Case Assessment Direction (“CAD”) on February 7, 2013, directing the applicant to file his reply within two weeks, by February 21, 2013. This CAD was sent to the applicant by e-mail.

The applicant made a walk-in inquiry to the Tribunal about his case, and on February 27, 2013, the CPO team lead sent the applicant a letter that reads as follows:

Further to your inquiry walk-in inquiry [sic] at Human Rights Tribunal of Ontario (HRTO) offices at 655 Bay Street, please find attached a copy of the HRTO’s letter dated January 10, 2013 and the Respondents’ Responses (Form 2).

I also wish to confirm you have indicated that you currently do not have a valid mailing address and are requesting all correspondence via email in the interim. Please provide a new mailing address as soon as possible. If you are requesting an extension to reply to the Case Assessment Direction (CAD) dated February 7, 2013, you must write to the Registrar (hrto.registrar@ontario.ca) and copy the other parties’ representatives (brsmith@toronto.ca and kim.twohig@ontario.ca) immediately.

On March 1, 2013, the applicant wrote to the Tribunal by e-mail to request an extension of time. It appears this e-mail was not placed before the Vice-chair who dismissed the Application as abandoned by Decision dated March 4, 2013: 2013 HRTO 357.

On March 6, 2013, the Registrar granted the applicant an extension of time to file his Reply until March 18, 2013. It appears that the Registrar was unaware of the Decision dismissing the Application that had been issued on March 4, 2013. The applicant filed his Reply on March 13, 2013. The Tribunal took no action upon receiving this document.

On June 10, 2013, the applicant filed a Request for Reconsideration, which was delivered to the respondents on June 11, 2013.

3In the same CAD the Tribunal directed that an oral hearing by telephone conference call be scheduled to hear submissions on the Request for Reconsideration, and whether, assuming reconsideration is granted that the Application should be dismissed for any or all of the reasons requested by the respondents in their responses, including delay and the assertion that the Application has no reasonable prospect of success.

4A hearing was held by telephone conference call on September 9, 2013. All parties participated.

5At the hearing neither respondent objected to the reconsideration Request of the applicant. In all of the circumstances the Request is granted. It is clear that the applicant through no fault of his own was deprived of the ability to make submissions. This is akin to the requirement in Rule 26.5 that reconsideration may be granted where a party through no fault of their own is entitled to but does not receive notice of the proceeding or a hearing. Having determined that the dismissal on the basis of abandonment should be reconsidered, the hearing continued on the basis of the other issues identified in the CAD (see para. 3, above).

6As noted above, one of the issues was whether any or all of the applicant’s allegations should be dismissed because they have no reasonable prospect of success. That part of the hearing was held pursuant to Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure which provide as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

7Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

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.

The OIPRD allegations (Gerry McNeilly)

8The identified respondent is the Independent Police Review Director (the Director). In his Response (Form 2) the Director took the position that this Application as it relates to the Director should be dismissed for the following reasons:

a. There are no facts set out in the Application that support an allegation of discrimination by the Director;

b. There are no facts alleged in support of a claim of reprisal;

c. The Application is an abuse of process because it is a collateral attack on the decision of the OIPRD;

d. The Tribunal does not have jurisdiction to deal with complaints about breaches of Charter rights that do not involve alleged breaches of the Code.

9The Director also argued that the Application as it relates to the first Police Services Act (“PSA”) complaint should be dismissed because it is out of time.

10The Application as it relates to the respondent Gerry McNeilly is dismissed.

11At the hearing the applicant was unable to point to any evidence which would tend to show a link between his ethnic origin and the fact that his various complaints under the PSA have been dismissed (one of his allegations against the respondents being that his PSA complaints were dismissed because of his ethnic origin). 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. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. The applicant asserts that he is a member of an ethnic group, which I accept. Indeed, it is difficult to imagine anyone who would not be able to assert membership in at least one ethnic group and a corresponding ethnic origin of some type. He also asserts that his complaints to the OIPRD were well founded but were dismissed. However the applicant has plead no other facts which would establish a link between his ethnic origin and the dismissal of his complaints. As the Tribunal has determined on many occasions it is not enough to claim membership in a protected group and point to a negative incident. A link between these two things must be shown. In considering the material filed and the applicant’s submissions there is no reasonable basis to conclude that the applicant will be able to show a link between his ethnic origin and the decisions of the OIPRD. Accordingly this aspect of the Application is dismissed.

The Police Allegations

12Although it was somewhat unclear in his Application (Form 1), the applicant clarified at the hearing that he alleges differential treatment in respect of the provision of services by the Toronto Police Service. The applicant alleges that in August 2011 and December 2011 the respondent failed to investigate and prosecute assaults of him by others. The applicant also alleges that he was lied to and denied information by unidentified members of the Toronto Police Service on January 3, 2012. The Application also includes a number of other allegations outlined in appended complaints filed under the PSA to the OIPRD. These complaints relate to incidents in 2010 and prior years. The applicant clarified at the hearing that these alleged incidents are provided as background to the events of 2011/2012.

13In its Response (Form 2) the respondent Police Services Board took a number of positions:

a. That the applicant has provided no particulars of discrimination on its part;

b. That if the allegations made in the 4th PSA complaint are allegations of discrimination on its part they have been appropriately dealt with in the OIPRD complaint;

c. That the Application should be dismissed because it has no reasonable prospect of success because there are no alleged acts of discrimination on its part.

14The request that this Application be dismissed on a summary basis is denied. The Tribunal’s Rules provide that where such a request is denied the Tribunal need not provide reasons, however in this case the following brief comments are appropriate. The applicant could point to no direct evidence of discrimination however he relies upon a number of circumstances some of which are more material than others. As indicated the applicant’s central allegation is that on two or three occasions he was assaulted by individuals who he claims not to know. The applicant alleges that despite his request that the police investigate and take appropriate action they did not do so and he was lied to and misdirected by a number of unidentified police officials. In particular the applicant alleges that he was assaulted by a number of individuals on December 29, 2011 and was seriously injured. He further alleges that despite obvious injuries and his request that they do so, the police officers who attended to him in the hospital did not investigate and did not proceed with charges although he was again misdirected and lied to about what the police were doing when he made inquiries on January 3, 2013. The respondent denies these allegations and articulates a completely opposed set of facts which if true are a complete answer to the applicant’s allegations. However, assuming that the facts as alleged by the applicant are borne out by evidence, including medical evidence, an inference that might be drawn from all of the circumstances is that a factor in the response of this respondent to the applicant was his ethnic origin.

15The respondent did not press the argument that the Application should be dismissed pursuant to section 45.1 of the Code, but reserved the right to do so if this case should go to a hearing.

16The Tribunal will schedule a one day hearing to hear the evidence in respect of this Application as it relates to the Toronto Police Service. The issue of the applicant’s entitlement to rely on prior and untimely events as background will be dealt with at the appropriate time by the hearing adjudicator.

17I am not seized of this case.