Balbir Rai v. Ontario (Environment), 2013 HRTO 1817

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Balbir Rai

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of the Environment

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: October 29, 2013

Citation: 2013 HRTO 1817

Indexed as: Rai v. Ontario (Environment)

APPEARANCES

Balbir Rai, Applicant

Self-represented

Minister of the Environment, Respondent

Omar Shahab, Counsel

Introduction

1This Decision relates to an Application filed on April 24, 2012 under s. 34 of the Human Rights Code, 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of race, colour, place of origin and ethnic origin. The applicant alleges that he was discriminated against by the Ministry of the Environment (the “Ministry”) when he was stopped for a vehicle emissions test, when a racial slur was made against him by a Ministry Officer, and when Ministry officers trespassed onto his property during the vehicle emissions investigation. He alleges further that the Ministry committed acts of reprisal against him when it investigated and charged him with obstruction following the emissions investigation, and when it posted his obstruction conviction on the Ministry website.

2The Ministry seeks dismissal of the Application on a number of bases including abuse of process, no reasonable prospect of success, prosecutorial immunity, absolute privilege and lack of a service relationship between the applicant and Crown counsel in the obstruction proceeding.

3The Ministry’s dismissal request was heard on August 1, 2013. At the commencement of the hearing, the applicant confirmed that he was withdrawing his complaint against Crown counsel.

Relevant Facts

4The applicant alleges that on March 13, 2012, he was driving his Honda Prelude sports coupe after leaving a shopping mall. He was followed by Ministry officers to his mother’s home. As he was walking to the house, the applicant alleges that one of the officers said “you are going to jail Paki”. The Ministry officers called the York Regional Police for back-up. Several police officers attended at the home. The applicant alleges that Ministry officials entered the home. A short time later, the applicant came out of the house and he permitted the Ministry officers to inspect his vehicle. The vehicle passed the emissions test.

5After the incident, the applicant was investigated and charged with obstruction because he failed to stop his vehicle as directed by the Ministry officers. The obstruction charge proceeded before a Justice of the Peace on November 23, 2012.

6Following his arraignment on the charge, the applicant pled guilty. For the purposes of establishing the necessary facts to sustain a conviction for obstruction, an agreed statement of facts was prepared and read into the record. The applicant was asked if the facts were admitted and his legal counsel advised the court that they were substantially correct. In the agreed statement of facts, the applicant admitted that his vehicle had been selected for inspection by the Ministry officers because it had been modified. The following paragraph was contained in the agreed statement of facts:

The officers saw a Honda with license plate AZJY 448 that appeared to have had its suspension lowered. In the past, officer Rahal has noted that modified vehicles are more likely to have emissions components removed to potentially gain engine horsepower. Officer Rahal selected the Honda for inspection on that basis and, while directly behind the Honda, activated the red light package on the MOE patrol vehicle. (emphasis added)

7As part of the guilty plea, the following facts were admitted by the applicant:

• The Ministry officers were on patrol performing road side inspections to verify compliance with the Drive Clean Regulation;
• The applicant’s car appeared to have its suspension lowered;
• One of the officers noted that modified vehicles were more likely to have emission components removed to potentially gain engine horsepower. The applicant’s car was selected for inspection on that basis;
• One of the officers activated the siren on the Ministry vehicle to try to get the applicant’s car to pull over;
• The applicant’s car eventually entered a residential driveway;
• The officers entered the driveway directly behind the applicant’s vehicle. The applicant proceeded into the residence; and
• The applicant exited the home and allowed the officers to inspect his vehicle. The vehicle passed the inspection.

8The presiding Justice of the Peace asked the applicant whether he wanted to provide an explanation for the offence. The applicant declined to give an explanation. Notably, the applicant did not advise the court of his belief that he had been racially profiled, that he had been subject to a racial slur during his interactions with Ministry officers, that the Ministry discriminated against him when the officers called for police back-up and that the obstruction charge was a form of reprisal.

9An obstruction conviction carries a minimum fine of $5,000.00. The court ordered a fine of $2,500.00, with six months to pay, based on the following considerations:

• The applicant’s guilty plea;
• The applicant had taken responsibility for his actions at a very early stage in the proceeding;
• The applicant’s conduct was at the very lowest end of obstruction; and
• The vehicle passed the emissions test.

Analysis and Decision

Abuse of Process

10The Tribunal has the jurisdiction to consider on a preliminary basis whether or not some or all of the allegations set out in an application ought to be dismissed as an abuse of process. Section 23(1) Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that a tribunal may make such orders or give such directions as it considers proper to prevent abuse of its processes.

11The Tribunal has held that the doctrine of abuse of process can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an application to continue. The circumstances that can give rise to an abuse of process are not finite and may include, but are not limited to, circumstances such as delay, re-litigation, settlement, as well as certain issues of procedural unfairness. In attempting to preserve and promote judicial economy, consistency and finality, the focus of the doctrine of abuse of process is on the integrity of the administrative justice system. See Johnston v. P & H Foods Division of Parrish & Heimbecker, 2013 HRTO 589 at para. 8.

12There are two issues before the Tribunal on this preliminary hearing. One, is it an abuse of process to proceed with the Application and the subsequent reprisal allegation relating to the obstruction charge in light of the applicant’s admission and guilty plea in the obstruction proceeding? Two, do the remaining reprisal allegations have a reasonable prospect of success?

Abuse of Process and Guilty Plea

13The obstruction proceeding took place seven months after the Application was filed with the Tribunal. In that proceeding, the applicant admitted the Ministry officers had a non-discriminatory reason for inspecting his vehicle. This admission is contrary to the applicant’s assertion before the Tribunal that his vehicle was selected for inspection because he was racially profiled and discriminated against by the Ministry officers. The applicant did not advise the court of his allegations of discrimination relating to the emissions stop, nor did he advise it of his allegations of reprisal relating to the obstruction charge. The applicant’s admission in the obstruction proceeding, coupled with his early guilty plea, were relied upon by the court when sentencing the applicant.

14The applicant disputed the accuracy of the transcript of the obstruction proceeding before the Tribunal. His factual dispute does not however relate to his central admission in that proceeding, that his vehicle was selected for inspection because it appeared to have a lowered suspension. Further, the applicant does not dispute the fact that he did not raise any allegations of discrimination and reprisal with the court.

15The applicant in the context of this Application now seeks to undo an agreement with the Crown that was sanctioned and approved by the Court. If the applicant had advised the court of his allegations of racial discrimination and reprisal, it would have allowed the court to consider whether it was appropriate to accept the guilty plea and register a conviction in those circumstances. The applicant did not however raise those issues and the Court proceeded to sentence the applicant based on admissions of fact that included a non-discriminatory explanation for the conduct of the Ministry officers.

16The applicant was facing serious consequences as a result of the obstruction charge, including the possibility of a minimum fine of $5,000.00. The applicant waived his right to a trial and elected to plead guilty, the result of which was to secure a more lenient disposition from the court: a fine of $2,500.00 with six months to pay. I agree with the Ministry that to allow the applicant to undo that agreement and contest the facts that were relied upon to reach that plea bargain would bring the administration of justice into disrepute and undermine the finality of the obstruction proceeding. See Servos v. Brantford Police Services Board, 2011 HRTO 1705 at para. 40; Tewogbade v. Toronto Police Services Board, 2009 HRTO 2043 at para. 34.

17I find that the applicant has not presented a sufficient basis upon which I can conclude that he should not be bound by the agreed upon facts in the obstruction proceeding and the outcome of that proceeding. If the applicant believed he had been discriminated against in the emissions stop and obstruction charge, he should have alerted the court to these facts. The applicant filed his Application with the Tribunal prior to the obstruction proceeding and he was therefore well aware of his allegations of discrimination and reprisal at the time of that proceeding.

18While I am not in a position to speculate as to the circumstance and considerations that led to the applicant’s decision to plead guilty, what is clear is he did not raise these allegations of discrimination and reprisal before the court and he agreed to facts to sustain the conviction that included a non-discriminatory explanation for the conduct of the Ministry officers. In these circumstances, to proceed with the Application and the reprisal allegation relating to the obstruction charge would be an abuse of the Tribunal’s process. These allegations are dismissed.

Reasonable Prospect of Success – Allegations of Reprisal

19The applicant alleges further that the Ministry committed additional acts of reprisal when it destroyed documents relating to guidelines for emissions inspections and when it posted his conviction on the obstruction charge on the Ministry website.

20The applicant is required to describe what evidence he has, or is reasonably available to him, that could support the alleged facts and demonstrate an intention to reprise. For the reprisal applications to continue in the Tribunal’s process, there must be a basis upon which the applicant can show, beyond mere speculation and accusations, that the Ministry intended to retaliate against him for having sought to enforce his Code rights by filing the Application.

21The applicant’s suggestion that the Ministry destroyed documents is purely speculative. There are no facts alleged to support his speculation that documents were destroyed and that this was done because he filed his Application. His assertion that the posting of his conviction on the Ministry website was a form of reprisal is also without any factual foundation. The applicant presented no facts as to how the posting of his conviction was different from other convictions posted on the website in order to show, beyond mere speculation and accusation, that the posting was done with an intention to retaliate against the applicant for filing the Application. The applicant must do more than simply make bald assertions that actions were taken against him as a form of reprisal for filing his Application. The applicant has not pointed to any evidence in his possession or that is reasonably available to him to support these allegations of reprisal.

22The Application is dismissed. To allow the applicant to re-litigate the obstruction proceeding and the underlying facts in that proceeding is an abuse of the Tribunal’s process. The additional reprisal allegations have no reasonable prospect of success because they are bald allegations without any factual foundation.

ORDER

23The Application is dismissed.