McFarlane v. Peel Police Services Board, 2014 HRTO 1832

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Akisha McFarlane

Applicant

-and-

The Regional Municipality of Peel Police Services Board

Respondent

DECISION

Adjudicator: Mark Hart

Date: December 29, 2014

Citation: 2014 HRTO 1832

Indexed as: McFarlane v. Peel Police Services Board

APPEARANCES

Akisha McFarlane, Applicant

Self-represented

The Regional Municipality of Peel Police Services Board, Respondent

Patricia Murray, Counsel

1This is an Application filed May 1, 2012 and completed June 7, 2012, alleging discrimination with respect to services because of race and colour and alleging reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The events at issue in this proceeding arise out of the applicant’s attendance at a Bank of Montreal branch (the “bank”) on May 25, 2011, which resulted in a physical altercation between the applicant and the branch manager, after which two police officers from the respondent police service attended at the scene. The applicant alleges that she experienced racial discrimination arising out of the conduct of the officers that day, and that she experienced reprisal when she spoke to one of the officers on the phone the following morning. This is denied by the respondent and the officers involved.

3The applicant also filed a complaint of racial discrimination against the bank with the Canadian Human Rights Commission, as the bank falls under federal jurisdiction. Whether or not the applicant experienced racial discrimination as a result of how she was treated by the bank is not an issue in this proceeding.

4The Application also originally had been filed against the company that owns and operates the mall in which the bank is located. Over two years after the Application had been filed, the applicant sought to amend her Application to add as a party respondent the mall security company, whose security officers had attended at the scene. Given the timing of this request in relation to the underlying issues, this request was denied by interim decision dated February 14, 2014 (2014 HRTO 215, upheld on reconsideration 2014 HRTO 462). On February 28, 2014, the applicant withdrew her Application as against the owner and operator of the mall.

5The hearing in this matter was held on October 14, 2014. I heard evidence from the applicant, from the two police officers who attended the scene, and from the branch manager of the bank. As the applicant was self-represented, I took the lead in questioning her to elicit her evidence.

6During the course of the hearing, near the end of the cross-examination of the applicant, the applicant’s sister, who was in attendance with her, sought an adjournment of the hearing for the purpose of the applicant retaining counsel. I denied this request on the basis that the applicant had had notice of the hearing since March 26, 2014 and already had had ample opportunity to retain counsel.

7An issue also arose in this proceeding regarding video surveillance footage maintained by the bank. On May 1, 2014, this Tribunal issued a Case Assessment Direction directing the bank to schedule a meeting with the parties to review this video footage. Both parties confirmed at the hearing that this meeting had been held. The bank did not file the video with the Tribunal in time for me to review it in advance of the hearing. During the course of the hearing, it became clear that the video as produced by the bank did not include any interactions with the police officers at the time and that neither police officer had viewed the video at the time of the events in question. The video also did not capture the altercation, which had occurred in the branch manager’s office. Accordingly, I ruled that I would not receive the video into evidence as it was not relevant to any issue before me. The applicant sought to raise objections to the nature of the video footage produced by the bank, which I was told had been redacted to protect the identity of bank customers. I ruled that it was too late for the applicant to raise this objection, given that she had been aware of the nature and content of the video footage since she had reviewed it some months previously.

The events at issue

8On May 25, 2011, the applicant went to the bank at the Square One Shopping Centre in Mississauga during her lunch hour in order to create new PINs for her credit cards. The applicant states that she did not receive the temporary PINs that should have been mailed to her by the bank with her credit cards, which led to some interaction between the applicant and the bank teller which is not relevant to the issues before me. Eventually, the teller took the applicant’s credit cards and her driver’s licence back to the branch manager. There was a discrepancy between the address shown on the applicant’s driver’s licence and the address on file with the bank, which led to some delays. After waiting for some period of time, the applicant told the teller that she needed to return to work and requested the return of at least her driver’s licence. When told that the driver’s licence was still in the possession of the branch manager, the applicant asked to speak with the branch manager. When advised of the location of the branch manager’s office, the applicant went to this office with the intention of retrieving her driver’s licence.

9The applicant states that when she got to the branch manager’s office, she requested the return of her driver’s licence. At this point, the branch manager was on the telephone with the credit card company seeking to verify the applicant’s information. While the branch manager only has a vague recollection of the applicant’s request for the return of her driver’s licence, she does not dispute that this request was refused at that time. The applicant testified that at this point, she got down on her knees behind the branch manager, who was sitting at her desk with her back to the applicant, and reached under the branch manager’s arm and was feeling around on the branch manager’s desk to find her driver’s licence. This is disputed by the branch manager, who states that the applicant was standing behind her chair and reached over her to try to grab the licence and the credit cards. There is no dispute that the branch manager reacted by grabbing hold of the licence and cards and an altercation ensued. The details of this altercation, however, are very much in dispute.

10The applicant testified that she tried to pull her arm back, but the branch manager clamped her hand around the applicant’s wrist and turned around to face the applicant. The applicant states that she was still on her knees at this point. She states that the branch manager stood up abruptly and then started wrestling the applicant for the driver’s licence and credit cards and ended up “throwing [the applicant] all over the place”. The applicant testified that she does not know why the branch manager grabbed her, because the applicant says that she was trying to pull away. The applicant states that the branch manager had the driver’s licence and credit cards in her left hand, and the applicant was using her right hand to try to grab the cards from her. She states that they had their hands clasped around each other. The applicant states that the branch manager dragged the applicant up onto her feet, and was bending the applicant from side to side and backwards and forwards. She states that the branch manager pushed her towards the glass door to the office, and the applicant almost hit her head there.

11The applicant testified that she was feeling attacked, and so started pushing back against the branch manager. She states that she pushed the branch manager up against the “wall of her desk”, referring to a credenza attached to the desk. The applicant acknowledges that she pushed the branch manager several times and not just once, and that she had grabbed the branch manager by the lapels of her jacket when she pushed the branch manager up against her desk. The applicant acknowledges that she may have grabbed the branch manager’s necklace while she was pushing and shoving her, but denies that she was trying to choke the branch manager with her necklace. The applicant further acknowledges that she may have scratched the branch manager with her nails while she was doing this. The applicant does not recall pictures being knocked off the branch manager’s cabinet during the altercation, but she does recall the telephone receiver being knocked off its hook. The applicant believes that she picked the receiver up to try to hit the branch manager with it, but then stopped. The applicant states that she eventually let go of the branch manager, and this was when the branch manager told bank staff to call the police and security. The applicant states that she threw her back out and has whiplash as a result of the altercation, and that the damage was extensive. No medical evidence was submitted by the applicant to support these injuries, although she did raise them when she spoke with Constable Gracey the following morning.

12The branch manager tells a very different version of the altercation. The branch manager states that she was sitting in her chair with her back to the applicant, when the applicant reached over top of her and tried to grab the credit cards and driver’s licence. She testified that she instinctively reacted by putting her hand over the cards and licence, and tried to hold onto them. The branch manager states that the applicant grabbed her necklace and started choking her and also was scratching her upper chest with her nails. She states that she tried to get up out of her chair so that she would not be so vulnerable. She states that the applicant was extremely furious and upset, and pushed her up against the credenza with force, such that family pictures had fallen down on the branch manager’s desk and the phone receiver was knocked off the hook. The branch manager does not recall who took the applicant off of her and out of the office. She does recall telling staff to call the police and mall security. The branch manager states that she was choking and shaking from the altercation, and was taken to the kitchen by one of her staff members. She states that she had scratches on her upper chest and that her right hand was swelling, which she treated with an ice pack.

13There is no dispute between the parties that the applicant’s aunt was present in the branch manager’s office when the altercation took place. There also is no dispute that at the beginning of the altercation, the applicant’s aunt told her to stop or she would regret what she was doing. This individual was not called to testify as a witness before me. The respondents ask me to draw an adverse inference from the fact that this witness was not called. I decline to do so. The applicant states that she has had a falling out with her aunt, and she was concerned that her aunt would not tell the truth if she was called to testify. Whether or not that is the case, I note that there is no property in a witness and the respondents equally could have called this individual to testify, if they so chose, or they could have called any of the bank employees who also witnessed the altercation. Accordingly, I will not draw an adverse inference as against any party from the failure to call witnesses to the altercation, but instead will base my findings on the testimony of the applicant and the branch manager.

14As the issues in this case pertain to the applicant’s allegations of racial discrimination and reprisal by the police, and not allegations against the bank or branch manager, it is not strictly necessary for me to make specific factual findings about what occurred during the altercation itself. However, the applicant’s credibility is very much in issue in this proceeding, and there are certain aspects of her account of the altercation that I find lacking in credibility. I find it difficult to believe that the applicant was on her knees behind the branch manager when she was reaching for her driver’s licence and the credit cards. This simply does not make any sense to me. Further, the Application as filed by the applicant contains a detailed account of the altercation, and, while it does state that the applicant reached under the branch manager’s arm to try to retrieve her driver’s licence and credit cards, it makes no mention of the applicant being on her knees when she did this. Instead, I find it much more believable that the applicant was standing behind the branch manager and reached over her to try to grab hold of the cards, as stated by the branch manager.

15I further note that there are several additional details provided by the applicant during her testimony before me which were not set out in the Application. While the Application states that the applicant “stumbled” during the course of the altercation, it makes no mention of the applicant almost hitting her head on the glass door. And while the Application uses the language that the applicant was “manhandled” by the branch manager, the applicant’s testimony before me that she was “thrown around” and bent side to side and backwards and forwards was much more colourful. When confronted with these inconsistencies, the applicant stated that there was a three page limit when she prepared her complaint about the bank for the Canadian Human Rights Commission, which she simply copied to form the basis of her Application to this Tribunal. As a result, she states that she did not include all of the specific details of the altercation in her Application. She also made reference to more detailed notes that she had made of the altercation, which were never disclosed to the respondent or filed with the Tribunal and which the applicant did not have with her at the hearing. I do not accept the applicant’s explanation on this point. In my view, the applicant’s testimony was embellished in order to portray herself as a victim of an attack by the branch manager. This is consistent in my view with the applicant’s evidence about being on her knees when the altercation started which I also find to be an embellishment made in an attempt to portray herself as having been in a more vulnerable position.

16In contrast, I found the branch manager’s evidence to be straightforward, unembellished and credible. The branch manager readily acknowledged when she did not recall certain aspects of the altercation. The branch manager also was prepared to acknowledge on cross-examination that the applicant’s initial request for the return of her driver’s licence was denied or ignored in the moment. When asked on re-examination about the applicant’s tone of voice during the altercation, the branch manager stated that the applicant was loud and aggressive as the altercation proceeded, but acknowledged that she could not honestly say that the applicant was loud and aggressive from the start. I found this to be a particularly measured response by the branch manager which supports a finding that she was not embellishing her testimony.

17Police records show that the initial call was placed to the police at 1:49 p.m., reporting that a customer had physically hit the branch manager. Police dispatch spoke with mall security at 1:52 p.m. and were told that a female had struck the bank manager, with the female being identified as the applicant. Constables Gracey and Koppaithara were dispatched to the scene at 1:51 p.m. and arrived on scene at 1:57 p.m. Both police constables testified that upon arrival, the applicant was in the bank lobby and was irate, upset and loud. The applicant acknowledges being angry and upset, and that she used a swear word in speaking with the officers.

18Constable Gracey went to speak with the branch manager, while Constable Koppaithara remained with the applicant. Constable Gracey states that he spoke with one of the bank’s employees, whose name is recorded in his memo book notes, who told him that she had witnessed the incident and that the applicant had initiated a physical confrontation and had struck the branch manager. He further states that he spoke with the branch manager in her office, and she told him that the applicant had physically attempted to grab her identification and the credit cards from the branch manager, and that a brief struggle had ensued. The branch manager told Constable Gracey that in this struggle, she had been pushed up against the desk or wall of her office, and had sustained scratches to her chest area and around her collar. These injuries were observed by Constable Gracey.

19Constable Gracey then returned to the lobby area where the applicant was waiting. The applicant’s evidence is that she was immediately placed under arrest at this time for assault. This is not consistent with the evidence of either police constable or with their memo book notes, which record the applicant having been arrested at 2:29 p.m., shortly before she was released and the officers left the scene, and solely for the purpose of issuing her a caution. It also is inconsistent with the officer’s evidence that, after speaking with the applicant, they discussed how to proceed and sought input from the branch manager as to whether she wanted them to charge the applicant. The evidence of both police officers and the branch manager is that the branch manager did not want charges laid if the applicant did not already have a criminal record, but simply wanted the applicant to be prohibited from returning to the branch. In my view, in considering the totality of the evidence, and in particular the time it would have taken the police officers to discuss how to proceed, consult with the branch manager to obtain her input and conduct a criminal records check on the applicant, the evidence is more consistent with the applicant being placed under arrest near the end of the time that the police officers were on the scene, than having been immediately placed under arrest as alleged by the applicant.

20At the conclusion of her evidence before me, I asked the applicant to clarify the basis upon which she was raising an allegation of racial discrimination against the police. In response, she stated that the basis of her allegation is that Constable Gracey immediately took the side of the branch manager, that she was immediately accused of committing a crime upon the police walking into the bank, and that there was no actual investigation. She stated that the branch manager is White while she is Black, and she was the one who was being called a criminal and it was very one-sided.

21I have several problems with the applicant’s allegation of racial discrimination. Primarily, this allegation is based upon the applicant’s position that she was placed under arrest for assault immediately after Constable Gracey spoke with the branch manager. For the reasons indicated above, I do not accept that this occurred and instead find that the applicant was arrested only near the end of the time that the police officers were on the scene and then only placed under arrest for the purpose of issuing her a caution and then immediately released. In this regard, I note that in the Application, the applicant records Constable Gracey as telling her that she “could be charged with assault” after speaking with the branch manager, which supports that she had not been placed under arrest at that time.

22Further, I do not accept the applicant’s position that there was no actual investigation by the police and that they just accepted the branch manager’s version of the altercation. First, it is clear that the applicant was given an opportunity to provide her side of the story. In her Application, the applicant states that she was questioned by Constable Gracey after speaking with the branch manager, which included stating the applicant’s position that she did not strike the branch manager, questioning her about why the branch manager had red marks on her chest, inviting her to recount her version of the altercation, and questioning her about her lack of visible injuries. In her testimony at the hearing, the applicant also confirmed that she had been given an opportunity to describe her version of events to the police. Still further, Constable Koppaithara’s memo book notes record the applicant’s version of the altercation, including that she went into the branch manager’s office to get her property back, that she tried to grab the driver’s licence from the branch manager who refused to let the applicant go, that she pushed her hands away resulting in the struggle, and that the applicant denied assaulting the branch manager and instead stated that she had been assaulted. Accordingly, before deciding upon the appropriate outcome to the situation, I find that the police spoke with both parties to the altercation to hear their version of the events, and also spoke with a bank employee who had witnessed the altercation. The evidence further indicates that the police made an unsuccessful attempt to find video footage of the altercation, which was not available at that time. As a result, I find that the police officers and in particular Constable Gracey conducted an appropriate investigation into the circumstances of the altercation, and that the evidence does not support the applicant’s allegation of racial discrimination.

23Still further, I also have had regard to the police officers’ disposition of the matter in concluding that the applicant was not subjected to racial discrimination. In my view, the police had reasonable and probable grounds to charge the applicant with assault. This is based not just on the account given by the branch manager, but also the fact that the branch manager had sustained visible injuries, that her version of the altercation was supported by a bank employee who had witnessed the altercation, and by the officers’ observation of the applicant’s demeanour when they arrived at the bank. However, instead of proceeding to charge the applicant with assault, the officers discussed the matter, consulted with the branch manager, conducted a criminal records check on the applicant, and ultimately decided not to lay charges against her and only formally arrest her for the purpose of issuing her with a caution, as required by the respondent police service’s protocol. In my view, this resolution to the situation demonstrates a lack of racial discrimination, in that the police officers decided to give the applicant a break rather than charging her with assault.

24I also note that I heard evidence from both police officers that higher management at the bank sought to challenge the decision they made at the scene not to lay charges against the applicant, and sought to persuade them to change their disposition of the case and proceed with charges. Constable Gracey in particular resisted the efforts of the bank’s higher management to get him to change the disposition of the case, and was supported in this by his superiors. Once again, in my view, this resistance to external pressure to lay charges against the applicant when I have found that there were reasonable and probable grounds to do so is not evidence of racial discrimination, but indeed evidence of a lack of racial discrimination.

25The only other allegation raised by the applicant in this proceeding is that she experienced reprisal arising out of a telephone discussion with Constable Gracey the following morning. There is no dispute that during the period of time that the police were on the scene on May 25, 2011, the applicant alleged that she had experienced racial discrimination by the bank. There also is no dispute that on the morning of May 26, 2011, Constable Gracey returned a telephone message that the applicant had left for him. During this telephone call, the applicant states that she advised Constable Gracey that she had been experiencing pain in her back and neck since early that morning and that she wanted to “make a statement for assault and discrimination”. The applicant clarified in her testimony that at the time, she believed that the police were the appropriate authority to deal with her allegation of racial discrimination against the bank, which she understands now is not the case.

26The applicant’s allegation of reprisal arises out of her evidence that in response to her desire to proceed with assault charges against the branch manager, Constable Gracey advised her not to do that on the basis that assault charges against her had been dropped but could return if the applicant sought to press charges of her own. Constable Gracey has no specific recollection of saying this to the applicant. In any event, on the applicant’s own evidence, Constable Gracey informed the applicant that if she wanted to pursue assault charges against the branch manager, she could come down to the station and do so, but he suggested that she not do that because it would not be good for her since this could result in the bank pressing charges against her and her getting a criminal record.

27In my view, even accepting the applicant’s evidence, this does not satisfy the requirements to maintain a reprisal allegation for at least two reasons. First, reprisal requires that an adverse action be taken against the applicant because she sought to claim or enforce her rights under the Code. In this case, the applicant is relying upon her assertion that she had experienced discrimination by the bank as evidence that she had sought to claim or enforce her Code rights. The problem with this is that there is no established connection between this assertion of the applicant’s Code rights, and the advice given to the applicant by Constable Gracey on the telephone. Second, the applicant has not established that she experienced any adverse action by Constable Gracey. While he advised her not to pursue assault charges against the branch manager due to the potential for assault charges to be pursued by the bank against the applicant, Constable Gracey nonetheless left it up to the applicant to decide for herself whether she wanted to do so. The applicant took no further action to pursue this. In my view, Constable Gracey’s advice to the applicant was simply a reflection of the fact that the applicant had been given a break by not being charged with assault at the scene, and the reality that if she attempted to pursue assault charges, this might result in the bank taking action to pursue charges against her. In my view, that was good advice.

ORDER

28For the foregoing reasons, the Application is dismissed.