Christianson v. Office of the Independent Police Review Director, 2014 HRTO 1445

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Christianson

Applicant

-and-

Office of the Independent Police Review Director

Respondent

AND BETWEEN:

Michael Christianson

Applicant

-and-

Windsor Police Service

Respondent

DECISION

Adjudicator: Alison Renton

Date: September 26, 2014

Citation: 2014 HRTO 1445

Indexed as: Christianson v. Office of the Independent Police Review Director

APPEARANCES

Michael Christianson, Applicant Self-represented

Office of the Independent Police Review Director, Respondent Carla Goncalves, Counsel

Windsor Police Service, Respondent Susan Hirota, Counsel

1By way of Case Assessment Directions (“CAD”), the Tribunal determined on its own initiative that a summary hearing would be held to determine whether the Applications should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that they will succeed. The Tribunal also determined that the summary hearing would be heard jointly with the Applications in file 2013-15372-I (against the respondent Windsor Police Service) (“the Windsor police”) and in file 2014-16438 (the respondent Office of the Independent Police Review Director) (“the OIPRD”).

2A summary hearing conference call (“the call”) for both Applications was held on April 17, 2014, and all the parties participated. Prior to the call, the applicant filed a number of documents and two Requests for Orders During Proceedings (“RFOP”). In one RFOP, the applicant seeks to amend his Application by inserting the word “not” in his Application against the Windsor police to read that he “is not schizophrenic”. In the second RFOP, he requests that a “HRLSC attorney” be appointed to represent him. The Applications, the materials filed by the applicant, and the submissions made during the call have all been carefully considered by the Tribunal.

3During the call, the Tribunal explained that it cannot appoint legal representation, including legal representation from the Human Rights Legal Support Centre, which is also established by the Code.

The Application Against the Windsor Police (2013-15372-I)

The Allegations in the Application

4In his Application against the Windsor police, which was filed on August 30, 2013, the applicant alleges discrimination with respect to services because of disability, association with another person, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The essence of this Application is that on September 25, 2012, the Windsor police refused to accept complaints from the applicant and his mother about comments made by a lawyer from Toronto, whom they identified. For the purposes of this Decision, the lawyer does not need to be identified and will be referred to as “the Toronto lawyer”. The Toronto lawyer was representing the defendants in a civil action that the applicant had commenced against them. The applicant and his mother told the Windsor police that the Toronto lawyer made what they allege were untrue representations towards the civil courts in March 2012 which, in their view, constituted perjury, obstruction of justice and fraud. The Windsor police, the applicant alleges, would not criminally charge the Toronto lawyer which, the applicant alleges, is wrongfully supressing a criminal complaint.

5The applicant alleges that the Windsor police misdirected him by providing him with information about various options that he and his mother could pursue with respect to their grievance against the Toronto lawyer, including filing an application in small claims court, or filing a complaint with the Toronto police or the OIRPD. None of these resulted in charges against the Toronto lawyer. The applicant alleges that the Windsor police did this because they perceive him to have a mental health disability, schizophrenia, which he also adamantly denies having, and is associated as a member of a group with mental health disabilities. He alleges they also reprised against him because of a previous complaint he brought against them under the Code. As a remedy, he seeks $3.5 million plus punitive damages. A previous Request to Expedite Proceedings had been denied by the Tribunal.

The Applicant’s Submissions

6The applicant confirmed that the Application against the Windsor police was filed on his own behalf and not that of his mother. During the summary hearing he provided many details that he apparently believed provided support for his allegations against the Windsor police. These details included specifics about the attempts he made to file his complaint against the Toronto lawyer, details of his mother also attempting first to file a complaint and then waiting in the car for him to do so, and the name of the police officer who met with him on one occasion. The applicant submits that the Windsor police have fabricated mental health symptoms about him, labelled him a criminal, believe that he is irate, irrational and delusional; although, he says, none of these things are true. Based upon this portrayal, he believes that the Windsor police do not think he is credible.

7He asserts that the officer of the Windsor police had the above information before her on a computer and read it when he attempted to make his complaint about the Toronto lawyer, which is why she did not take his complaint seriously, and also why the Windsor police took no steps to charge the Toronto lawyer, and misdirected the applicant about small claims court as alternative option to pursue his grievances. In the applicant’s opinion, the Windsor police have decided that they do not have to waste their time dealing with the mentally ill (or perceived mentally ill), and do not like the mentally ill. He supports this belief with general allegations that there are cases where a mentally ill person was shot or physically harmed by a police force. Further, he asserts that the Windsor police’s conduct on the day that he made an unsuccessful attempt to have them pursue criminal charges against the Toronto lawyer amounts to reprisal because they denied him service again based upon his previous interactions with them.

8The applicant submits that the Windsor police’s actions pertaining to this Application amount to discrimination under the Code and that his Application ought not be dismissed.

Windsor Police’s Submissions

9The Windsor police submit that the Tribunal previously dismissed a complaint the applicant filed against it. See Christianson v. Windsor Police Service, 2010 HRTO 229 and a reconsideration decision Christianson v. Windsor Police Service, 2010 HRTO 896 (“the Decisions”). The Windsor police submit that some of the concerns the applicant raises in his current Application, are res judicata, in that many of the allegations he raises have been determined already by the Tribunal as reflected in the Decisions.

10Furthermore, the Windsor police submit that the Application has no reasonable prospect of success against it. In September 2012, the applicant wanted the police to charge the Toronto lawyer with perjury and fraud. Based upon the information that he supplied to the Windsor police in support of this claim, which he also filed with the Tribunal, the issue he had with the Toronto lawyer was about her bringing a motion to dismiss his litigation, and the submissions she made before the civil courts, because he failed to set down his action for trial within the required timeframe. The Windsor police submit that the applicant’s issues with the Toronto lawyer were not criminal issues and that he could raise his concerns in laying a private information before a justice of the peace or by filing a complaint with the Law Society of Upper Canada. He was not denied a service by the Windsor police because of a Code ground.

The Applicant’s Reply Submissions

11In replying to the Windsor police’s submissions, the applicant agreed that part of the issue he had about the Toronto lawyer pertained to the calculation of days that he had to set down his civil action for trial as well as the submissions that the Toronto lawyer made to the civil court pertaining to this. In his view, the Toronto lawyer’s submissions constitute perjury.

12He noted that the Windsor police’s submissions were contradictory about whether the Toronto lawyer’s conduct was criminal. He was told by the officer that that the issues he had with the Toronto lawyer were not criminal, yet she advised he could lay a private information before a justice of the peace, which is a criminal option.

13With respect to the Decisions, the applicant submits that the adjudicator glossed over some of the issues in the Decisions without making findings on them. He submits that the issues raised in this Application are not res judicata because they had not occurred at the time that the Decisions were issued.

Allegations Against the OIPRD (File 2014-16438-I)

The Allegations in the Application

14In his Application against the OIPRD, which is dated December 31, 2013, the applicant alleges discrimination with respect to services because of disability, association with another person, and reprisal contrary to the Code. In this Application, the application takes exception to the response he received from the OIPRD in January 2013 about the complaint he filed with it about the Windsor police refusing to accept his complaint, which he characterizes as criminal, against the Toronto lawyer. He asserts that the OIPRD responded in this way because they perceive him as having a mental health disability or associated with those who have mental health disabilities. A Request to Expedite was earlier refused by the Tribunal.

The Applicant’s Submissions

15The applicant submits that the OIPRD also has false information about him based upon his previous interactions with the OIRPD and the Windsor police. The applicant strongly disputes that he has a disability, but alleges that the OIPRD perceives him to have a disability based upon information they have received from the Windsor police. This information is false and fabricated.

16He submits that he was reprised against by the OIPRD because he filed previous complaints about the police and the Ontario Civilian Complaints Commission (“OCCC”), which were dismissed. The OIRPD’s continued dismissal of his complaints amounts to reprisal. His Application ought to continue, he submits, because these factors support a conclusion that his Code rights were violated.

The OIPRD’s Submissions

17The OIPRD submits that the applicant’s allegations against it do not establish a violation of the Code and accordingly the Application has no reasonable prospect of success. It denies that its screening determination is based upon a perceived disability of the applicant and instead is based upon its overall jurisdiction to deal with complaints raised by the public about a police officer. The applicant’s complaint did not raise any issues of misconduct or anything that would within the jurisdiction of the OIPRD, but instead it was a complaint about a lawyer, and accordingly it was screened out.

18The OIPRD also asserted that it is not a successor to the OCCPC, or connected with it, but is a new, separate entity that was created in 2009. It does not have the jurisdiction to address any complaint that pre-dates the date the OIPRD became effective. It does not have access to information about the applicant’s previous encounters with the Windsor police. Its mandate is to review complaints by members of the public to determine whether they raise issues of misconduct that should be investigated. An individual who disagrees with the OIPRD’s decision has the option of pursuing a judicial review before the courts.

The Applicant’s Reply Submissions

19The applicant disputes that the OIPRD lacks jurisdiction to deal with his complaint about the Windsor police since he had a criminal complaint which the Windsor police refused to take and directed him elsewhere. Furthermore, he notes that the OIPRD literature refers complainants to the Tribunal. Suggesting that he file a judicial review is akin to the Windsor police officer misdirecting him to small claims court.

Law and Analysis

20Section 10(1) of the Code provides a broad definition of “disability”, which extends to and includes “perceived disability” (section 10(3) of the Code). See also Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 SCR 665 (“Mercier”), and, for example, McLean v. DY 4 Systems, 2010 HRTO 1107 at para. 49.

21Reprisal is defined in section 8 of the Code to mean:

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.

22The Tribunal has held that for reprisal, an applicant must establish: there was an action taken against, or threat made to, the applicant; the alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and, an intention on the part of the respondent to retaliate for the claim or attempt to enforce the right. See Noble v. York University, 2010 HRTO 878 at para. 33.

23Rule 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.

24The 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, a decision which has been followed by the Tribunal in over 600 cases:

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 there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when 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.

25Neither respondent has filed a Response, and the Tribunal has heard no evidence pertaining to the applicant’s allegations. The information provided by the respondents’ respective counsel are only submissions for the purposes of this summary hearing.

The Windsor Police - File 2013-15372-I

26I do not find that the Application against the Windsor police has a reasonable prospect of success and it is dismissed. In coming to this conclusion, it is helpful to provide some context about the applicant’s allegations against the Windsor police.

27In the materials that he filed prior to the call, the applicant provided a copy of correspondence that he sent to the Acting Chief of Police of the Windsor police, dated September 25, 2012. Within that correspondence, the applicant clearly sets out the issues that he had with the Toronto lawyer. Those allegations include: the Toronto lawyer making misrepresentations before the civil courts to the effect that she was the defendant’s lawyer of record, when she had not been previously identified as such; alleging that the applicant improperly served motion material to the wrong counsel; promising to file a request for summary judgment, but never doing so; and defrauding the applicant out of millions of dollars as his case would have been successful.

28The applicant also filed various court endorsements pertaining to his civil action. This included a September 27, 2011 endorsement of Mr. Justice Gates, which discusses the importance of moving along the applicant’s civil action, grants the applicant an additional 180 days to set his action down for trial, and warns that the action would be dismissed if the applicant does not set it down for trial. It also notes that the defendant’s counsel would undertake to write to the applicant and confirm this in writing. That letter was also disclosed by the applicant.

29The applicant also filed two further court orders, one dated March 27, 2012 and the other dated April 10, 2012, which dismissed two separate civil actions the applicant had against, what appears to be, at least one of the same defendants in both actions. One order appears to be about not setting the action down for trial within the 180 day period as ordered by Mr. Justice Gates, and the other dismisses another action for delay.

30The applicant’s interaction with the Windsor police officer about the Toronto lawyer’s conduct took place on September 26, 2012. It was then, the applicant submits, that he was discriminated against by the police officer on the basis of perceived disability, association with another, specifically the mentally ill, and reprised against. The applicant submitted what appears to be a photocopy of a post-it note with the Windsor police officer’s name and badge number, as well as the local phone number for the Superior Court of Justice, civil, and small claims court.

31What is very clear in this Application is that the applicant takes issue with the advice the Windsor police officer allegedly gave him and/or the direction in which she sent him. He believes that the Toronto lawyer’s conduct was criminal in terms of perjury, obstruction of justice and fraud, does not understand why the Windsor police would not lay criminal charges against the Toronto lawyer, and disagrees with the civil court direction which the police officer gave him. However, whether or not the Toronto lawyer’s conduct was criminal or not is not the issue before me. The issue before me is whether or not the allegations of discrimination have a reasonable prospect of success. I find that they do not.

32Based upon the information that was filed, and the applicant’s submissions, I do not see how the applicant can discharge his onus of proving that the Windsor police discriminated against him because of perceived disability, or association with another (including those with mental illnesses), and/or reprised against him.

33The focus of the summary hearing was on the issue of whether, assuming all the applicant’s factual allegations to be true, the Windsor police’s actions could reasonably be considered to amount to discrimination because of disability, association with another person on the basis of a Code ground, or reprisal. In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 SCR 143, the Supreme Court of Canada defined discrimination as follows at pp. 174-75:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

34Moreover, the Code is concerned with substantive discrimination, not merely differential treatment. In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 SCR 161, Abella J., in her concurring reasons, stated at para. 49:

(…) there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

35See also Peel Law Association v. Pieters, 2013 ONCA 396 at para. 56.

36In his Application against the Windsor police, I cannot see how the Windsor police’s treatment towards the applicant, assuming his allegations to be true, amounts to differential treatment at all, let alone differential treatment on the basis of perceived disability and/or association with another. The fact that the Windsor police decided not to lay criminal charges against the Toronto lawyer does not, in my view, demonstrate that the applicant received differential treatment because of a Code ground. Further, there is no evidence to which the applicant can point which raises an inference that Windsor police differentiated against him because of a Code ground even if the police officer was aware of the applicant’s previous involvement with the Windsor police. It is within the Windsor police’s jurisdiction to determine whether or not conduct warrants criminal charges, regardless of the opinion of a member of public as to whether or not it is criminal. Furthermore, the applicant agrees that the police officer told him that he could lay a private information with the justice of the peace if he wanted to pursue criminal charges.

37With respect to reprisal, and its specific meaning under section 8 of the Code, I do not see how the applicant can prove how he was reprised against. There is no evidence to which he can point to establish that there was an action taken against him, or threat made to him, the action or threat is because he claimed or attempted to enforce a Code right, or that there was intention on behalf of the Windsor police to retaliate for the claim or attempt to enforce the right. Even if I were to accept that the officer misdirected the applicant and/or failed to criminally charge the Toronto lawyer, the applicant can point to no evidence to establish that the Windsor police did this because he attempted to claim or enforce a Code right. Finally, he can only assume, without pointing to any evidence, that the Windsor police’s inaction to lay criminal charges amounted to an intention as retaliation against him for claiming Code rights. In addition, I note that the Tribunal Decisions pertaining to the applicant and the Windsor police were issued in 2010, more than two years before his allegations against the Windsor police in this Application.

38For these reasons, the allegations in this Application have no reasonable prospect of success and the Application is dismissed.

The OIPRD – File 2014-16438-I

39The allegations in the Application against the OIPRD also have no reasonable prospect of success.

40The applicant filed a copy of the January 18, 2013 letter from the OIPRD to him. He also filed a copy of a January 18, 2013 letter from the OIPRD to his mother about the same incident and another one to him pertaining to his complaint about an officer of the Toronto Police Service.

41The OIPRD’s letter states, in part: “The OIPRD is aware of your concerns. However, taking all the information into consideration, the Director has not identified any breach of the Police Services Act or its Code of Conduct. Therefore, we have no jurisdiction to deal with this matter, and our file is now closed”.

42In this Application, the applicant cannot point to any evidence upon which he would rely to prove that the OIPRD discriminated against him because of perceived disability, association with another person or a group of individuals with mental health disabilities, or reprised against him for asserting his Code rights. The applicant merely speculates that the OIPRD perceived him to have a disability. Furthermore, the applicant cannot point to any evidence in support of his allegation that his complaint to the OIPRD was dismissed because of a perceived disability, or association with another. Most importantly, he cannot point to any evidence which he could use to demonstrate that he was subjected to differential treatment by the OIPRD when it decided not to continue with his complaint.

43With respect to reprisal, the applicant cannot point to any evidence in the form of an action taken against him, or threat made to him by the OIPRD, the action or threat is because he claimed or attempted to enforce a Code right, or that there was intention on behalf of the OIPRD to retaliate against him for the claim or attempt to enforce the right.

44For these reasons, the Application against the OIPRD is dismissed as having no reasonable prospect of success and it is dismissed.