Allen Rosario v. Thunder Bay Police Services Board, 2013 HRTO 2094

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Allen Rosario

Applicant

-and-

Thunder Bay Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: December 18, 2013

Citation: 2013 HRTO 2094

Indexed as: Rosario v. Thunder Bay (Police Services Board)

APPEARANCES

Allen Christopher Rosario, Applicant

Self-represented

Thunder Bay Police Services Board, Respondent

Holly Walbourne, Counsel

Introduction

1By Application dated August 16, 2012, the applicant alleged that the Thunder Bay Police Services Board (“police”) discriminated against him with respect to the provision of police services because of disability and creed. He also alleged that the respondent reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction dated April 15, 2013, the Tribunal directed a summary hearing into whether any or all of the allegations in the Application should be dismissed as having no reasonable prospect of success under the Code.

3For the reasons that follow, I dismiss all allegations against the respondent, except for the two following allegations:

a. the allegation that the respondent discriminated against the applicant because of disability when its officers refused to permit him to take his medication while in police custody on March 26, 2012 and April 14, 2012; and

b. the allegation that the respondent discriminated against the applicant during the incident when an officer called him a “sand nigger” on July 15, 2012.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27, Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 10. Likewise, the Tribunal does not have the power to enforce legislation such as the Police Services Act or the Criminal Code. The Tribunal also has no jurisdiction to determine whether the respondent has violated the applicants’ rights under the Canadian Charter of Rights and Freedoms (“Charter”). The Tribunal’s jurisdiction is specifically limited to claims arising under the Code.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that he or she has experienced discrimination.

7The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment allegedly experienced by the applicant with the protections found in the Code. Support for that connection may come in a variety of forms: comments alleged to have been made by the respondent, the timing of certain events, or comparisons with how other people were treated. These are just some examples of the circumstances, which are often contained in the narrative to an application, that play a role in assisting the Tribunal in determining whether the application has a reasonable prospect of success. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or beliefs, the application may be found to have no reasonable prospect of success.

8In a summary hearing, the parties are given an opportunity to make submissions, usually on a telephone conference call. These submissions are often helpful in clarifying the nature of the allegations and the evidence that the parties intend to bring forward if the application were to proceed to a hearing on the merits.

9The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

Analysis

10The first question that the Tribunal must decide in this summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment allegedly experienced by the applicant with the grounds of disability and/or creed alleged in the Application. The second question that I must decide is whether the applicant is likely to be able to make out a claim of reprisal under the Code.

11The allegations in the Application relate to alleged events occurring on four dates in particular: March 26, 2012, April 14, 2012 and July 15-16, 2012.

March 26, 2012

12The applicant alleged that he received a call from a police officer telling him that he was required to attend at the police station because he was going to be charged with criminal harassment. When he appeared at the police station to turn himself in, the applicant informed the officers on duty that he was taking medication. He also informed them that he had had a stroke and heart attacks, suffered from anxiety and that he was having a panic attack. The applicant claimed that he asked one of the officers to take him to his apartment, in hand cuffs if necessary, so he could retrieve his medications. However, he alleged that a police sergeant instructed the officers not to comply with his request and to place him in a cell. The applicant submitted that the police officers discriminated against him because of disability by denying him the permission to retrieve his medication.

13The applicant also alleged that he was not allowed to wear sufficient clothes to keep warm and that he was not given sufficient food. The applicant claimed that the respondent officers knowingly caused him bodily harm, intimidated him and abused their powers by doing so.

14I cannot conclude that the applicant’s allegation that the police officers discriminated against him because of disability on March 26, 2012 has no reasonable prospect of success. Accepting the applicant’s allegations as true, as I must for the purposes of this summary hearing, I cannot conclude there is no reasonable prospect that the applicant will be able to establish that the respondent failed to comply with a duty to accommodate his disability by denying him permission to take his medications when he was placed in custody.

15I find that the applicant’s allegations that the police officers caused him bodily harm, intimidated him and abused their powers have no reasonable prospect of success under the Code. The applicant has provided no information from which the Tribunal can reasonably infer that any of these actions, even if proven, were undertaken because of the applicant’s disability or creed.

April 14, 2012

16The applicant alleged that he attempted to report to the police that he had been attacked and bear sprayed by a woman. He alleged that the police officers on duty accepted the woman’s story and accused him of a crime he did not commit. He also alleged that certain police officers brought him on an unnecessarily long drive and improperly interrogated him.

17The applicant was jailed for 28 hours before being brought to court. He claimed that he was once again not allowed to take his medications. He also claimed that he was not allowed to wear adequate clothing and that he was not given enough to eat. He alleged that that all of the above actions violated his right to life liberty and security of the person and his right not to be arbitrarily detained under sections 7 and 10 of the Charter. He also alleged that these incidents constituted discrimination because of disability.

18The applicant also alleged that he was searched on April 14, 2012 while police officers obstructed a camera in the police station. He alleged that because of his colour and/or ethnic background the police expected to find explosives hidden in his underwear. The applicant is of Indian origin.

19As noted above, I cannot conclude that there is no reasonable prospect that the applicant will be able to establish that the respondent failed to comply with a duty to accommodate his disability by refusing to permit him to take his medications while in custody.

20I find that the Tribunal does not have jurisdiction to determine whether the respondent violated the applicant’s rights under sections 7 and 10 of the Charter.

21I find that there is no reasonable prospect that the applicant will be able to establish that the police discriminated against him because of creed due to the way they conducted the search on April 14, 2012. The applicant has provided no information from which the Tribunal can reasonably infer that any of these actions, even if proven, were undertaken because of the applicant’s creed.

22I also find that the applicant’s claim that the respondent failed to accommodate his disability by not allowing him to wear adequate clothing and not giving him enough to eat has no reasonable prospect of success. The applicant did not provide sufficient evidence to link the provision of clothing and food to his disability-related needs and to any request for disability accommodation in relation to these issues.

July 15, 2012

23The applicant alleged that a police officer arrived at his apartment door, forced it open, put cuffs on him and took him to the elevator. In his Application, the applicant claimed that the officer made racist slurs against him. At the hearing he claimed that the police officer called him a “sand nigger”. The police officer ended up uncuffing the applicant and allowing him to return to his apartment.

24Accepting the applicant’s allegations as true for the purpose of this summary hearing, I cannot conclude that there is no reasonable prospect that the applicant will be able to show that the respondent discriminated against him during the incident when an officer called him a “sand nigger” on July 15, 2012.

July 16, 2012

25The applicant claimed that the next day, two police officers brought him to the hospital to be kept under suicide watch. He alleged that they tried to embarrass him and deliberately put cuffs on him in such a way as to hurt him.

26I find there is no reasonable prospect that the applicant will be able to establish that the above events were discriminatory under the Code. Even if I accept the applicant’s account of the events described above as true, he has provided no information from which the Tribunal could infer a link between these actions and his disability or creed.

Reprisal Allegations

27Section 8 of the Code provides that every person has a right to claim and enforce his or her rights under the Code without reprisal or threat of reprisal.

28The applicant claimed that all of the events detailed in his Application were carried out as a reprisal against him for filing a police misconduct complaint with the Office of the Independent Police Review Director in February 2012. At the summary hearing, he confirmed that he had not sought to claim and enforce his human rights prior to the events set out in his Application. His February complaint to the OIPRD does not contain any claims of a violation of the Code.

29Section 8 provides specific protections against reprisal for claiming and enforcing rights under the Code. The section does not provide broader protections against reprisal for claiming rights under other legislation such as the Police Services Act.

30For this reason, I conclude that the reprisal allegations set out in the Application stand no reasonable prospect of success.

Additional Allegations

31In a request to amend his Application filed on January 17, 2013, the applicant alleged that a police officer threatened him in traffic court in January 2013. After the summary hearing in this matter, by letter dated November 16, 2013, the applicant raised additional allegations of police misconduct and reprisal due to incidents occurring while he is in custody at the Thunder Bay District Jail. The applicant alleged that the respondent acted in a malicious way by charging him when he had called to complain about another inmate’s harassment.

32Even if I were to permit the applicant to amend his Application to add these additional allegations, I find that they do not stand a reasonable prospect under the Code. Even if I accept as true that police officers threatened the applicant in traffic court in January 2013, the applicant has provided no information from which the Tribunal could reasonably infer a link between this conduct and the Code. Likewise, even if I accept as true the applicant’s allegations that police officers mistreated him while he is in custody at the Thunder Bay District Jail, I find that these allegations do not have a reasonable prospect of success under the Code. As noted above, the Tribunal does not have jurisdiction over general claims of unfairness or over violations of any legislation other than the Code. The applicant has provided no information from which the Tribunal could reasonably infer a link between the alleged conduct and the Code.

Order

33For the reasons set out above, I dismiss all allegations against the respondent in this matter except for the following:

a. the allegation that the respondent discriminated against the applicant because of disability when its officers refused to permit him to take or retrieve his medication while in police custody on March 26, 2012 and April 14, 2012; and

b. the allegation that respondent discriminated against the applicant when one of its officers called him a “sand nigger” on July 15, 2012.

34The Registrar shall schedule a half day mediation in this matter since the applicant indicated at the summary hearing that he agrees to attempt mediation and the respondent agreed to mediation in its Response. The Registrar will advise the parties of the date of the mediation by Notice of Mediation.