Auncle Kalandar Gaji v. Chief of Police of the Toronto Police Service, 2013 HRTO 1600

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Auncle Kalandar Gaji Applicant

-and-

Chief of Police of the Toronto Police Service Respondent

INTERIM DECISION

Adjudicator: Paul Aterman Date: September 24, 2013 Citation: 2013 HRTO 1600 Indexed as: Gaji v. Chief of Police of the Toronto Police Service

WRITTEN SUBMISSIONS

Auncle Kalandar Gaji, Applicant Mindy Noble, Counsel

Chief of Police of the Toronto Police Service, Respondent Michele Wright, Counsel

Introduction

1The applicant alleges that he was discriminated against by being profiled and subjected to harassment by the respondent’s officers because of his race. His Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that this happened on three occasions: sometime in October of 2011, sometime in January of 2012 and on May 9, 2012.

2The respondent notes that he is properly identified as “the Chief of Police of the Toronto Police Service”, and asks that the style of cause be amended accordingly. As the applicant has not raised any objection to this, the style of cause will be amended.

3The respondent has made two further Requests. The first is to dismiss the allegations relating to the October 2011 incident on grounds of delay and the second is to dismiss the allegations relating to the January 2012 incident because he says it did not happen. For the reasons below both of these Requests are denied.

request to dismiss for delay – october 2011 incident

4The Code (s. 34) requires an application to be made within a year of the last alleged incident of discrimination or, if a series of incidents is alleged, within a year of the last incident in the series. The Tribunal can make an exception to this rule if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

5The applicant alleges that in October 2011 he was shopping and doing errands at a strip mall in Scarborough. He claims that two officers from 43 Division stopped him and asked for identification, as well as requesting to look through his bags. He claims that he told them he was doing nothing wrong, but complied nonetheless. After the officers checked his bag and identification he was told to leave the mall. He refused and alleges that he was pushed to the ground, handcuffed, given a ticket for trespassing and then released.

6He alleges that in January 2012, under similar circumstances, he was again ticketed and told by an officer from 43 Division to leave the same strip mall. In relation to the incident of May 9, 2012 the applicant claims that an officer from 43 Division ticketed him and told him to leave a different mall in Scarborough. He alleges that in none of these incidents did the officers have cause to stop him, ticket him or require him to leave the mall.

7The Application was filed in December of 2012, more than a year after the October 2011 incident. The respondent states that the applicant filed a complaint under the Police Services Act, R.S.O. 1990, c. P 15 (the “PSA”), that this complaint raised human rights concerns and that this demonstrates that the applicant could and should have filed an Application in relation to this incident within the year required by the Code.

8The applicant’s defence to this argument is that the October 2011 incident is one in a series of incidents and that the last of these incidents (May 9, 2012) is well within the year timeframe.

9In Garrie v. Janus Joan Inc., 2012 HRTO 1955 at paras. 38-42, the Tribunal provides a useful framework for analysing whether an incident fits within a series of incidents for the purpose of deciding whether to dismiss an Application in whole or in part for delay.

10Applying the criteria identified in Garrie that are relevant to the facts of this case, I conclude that the incident of October 2011 is an incident within a series of incidents. In doing so I am not making findings of fact about what actually occurred then, I am simply assuming the truth of the allegations for the sole purpose of deciding whether the allegations are or are not out of time (see Pakarian v. Chen, 2010 HRTO 457 at para. 26). The paragraphs below explain my conclusion.

11First, the allegations of what took place in October 2011 could, if proved, constitute an independent contravention of the Code. The narrative is clearly an allegation of racial profiling and harassment. The applicant in fact goes beyond alleging that race was a factor in stopping him, requesting identification and searching him, handling him physically, ticketing him and forcing him to leave the mall. He appears to claim that it was the sole reason the officers took those actions.

12Second, the applicant claims that what took place in October of 2011 forms part of a pattern of incidents that follow it. The allegations with respect to all of the incidents are similar in that they assert that officers from the same Division have repeatedly and arbitrarily stopped the applicant in shopping malls, ticketed him and required him to leave. The high degree of factual similarities which are alleged clearly creates a pattern of incidents that are discriminatory. If believed, the applicant has set out a series of incidents in which each incident constitutes a fresh step by the respondent in discriminating against the applicant.

13Third, I note that all three incidents occur within a year of each other. The Tribunal has consistently held that a gap of a year between incidents breaks the chain that constitutes a series. Having regard to the circumstances and timing of the three alleged incidents, I conclude that the October 2011 incident forms part of a series of incidents, the last of which falls within the time period prescribed for filing an Application. Accordingly, the Request to dismiss this allegation is denied.

request to dismiss for lack of proof – January 2012 incident

14The respondent asserts that it has no record of any interaction between its officers and the applicant in January of 2012. It states that if what the applicant alleges in fact took place and he was ticketed, then there would be a record of a ticket being issued, but there is none. It argues that on this basis this allegation should be dismissed.

15However, the applicant has produced some evidence of interaction with the respondent’s officers on January 27, 2012 in the form of a report from the ICON database. The respondent says that this incident took place at the applicant’s former address, and not at a shopping mall.

16It is clear from the exchange between the parties that what did or did not take place in January of 2012 is in dispute. There are many potential sources of documentary and oral evidence to resolve that dispute. This is appropriately dealt with at a hearing following the process of first producing arguably relevant documents and then filing witness lists, statements and documentary evidence. At this stage the Request to dismiss this allegation is premature.

order

17The style of cause is amended to identify the respondent as the Chief of Police of the Toronto Police Service.

18The respondent’s Requests to dismiss the October 2011 and January 2012 allegations are denied.

19In accordance with his undertaking of July 26, 2013, the respondent is to file a Response with the Tribunal within 21 days of the date of this Interim Decision. The respondent is to indicate whether he agrees to try to resolve this Application through mediation.