Josephs v. Toronto (City), 2014 HRTO 302

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin Josephs Applicant

-and-

City of Toronto, and Toronto Police Services Board Respondents

INTERIM DECISION

Adjudicator: Ruth Carey Date: March 7, 2014 Citation: 2014 HRTO 302 Indexed as: Josephs v. Toronto (City)

APPEARANCES

Kevin Josephs, Applicant Self-represented

City of Toronto, Toronto Police Services Board, Respondents David Gourlay, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of race and colour.

2This Interim Decision is being issued to address the issue of who should be named as respondents to this Application.

The Parties and the Allegations

3This Application concerns an incident that occurred on January 7, 2013, in and around the Court Services Office located in the Toronto East Provincial Court. The Court Services Office is staffed by, and under the control of, the City of Toronto (the “City”).

4The Application says the applicant was there seeking services when another member of the general public (the “personally named respondent”) yelled at him and made a number of remarks. Those remarks include a racial slur and an invitation to go outside to engage in a physical fight.

5The applicant and other members of the public complained to the staff working in the Court Services Office and a supervisor was summoned. The supervisor indicated security personnel would attend to deal with the offending member of the public. The Application alleges that otherwise, the staff of the Court Services Office did nothing in response to the situation.

6The Application further alleges that the security person who attended questioned the applicant as to his behaviour, his reason for being in the Court Services Office, and requested personal information from him; after which the security person spoke to the personally named respondent who was then permitted to complete his business in the Court Services Office. The security person who attended is a civilian employee of the Toronto Police Services Board (“TPSB”).

Procedural Background

7When this Application was filed on August 1, 2013, it named two respondents: the City; and the personally named respondent.

8On September 16, 2013, the Tribunal notified the applicant that it was unable to proceed with the Application because the address provided for the personally named respondent was incorrect. The Tribunal’s letter drew the applicant’s attention to Rule 6.6 of the Tribunal’s Rules of Procedure which says that an application will not be dealt with in respect of a respondent that cannot be contacted. Its letter also cites the Tribunal’s decisions in Guild v. Kyle-Jansen, 2008 HRTO 347 and Osman v. Elle Productions Security, 2009 HRTO 1426, and explains that it is the applicant’s responsibility to provide contact information for any respondents and that the Tribunal may dismiss an application where it is unable to contact the respondent. The letter advises the applicant to provide the correct contact information by September 25, 2013.

9On September 24, 2013, the applicant filed a Request for Order During Proceedings (“RFOP”). The RFOP seeks orders: permitting the applicant to amend the Application to add the “Toronto Police Services” as a respondent; extending the time to file the personally named respondent’s correct address; and requiring the City and the TPSB to produce the contact information for the personally named respondent. By way of Registrar’s Letter dated September 24, 2013, the request to extend time was granted.

10On October 10, 2013, the City filed a Response to the Application. The Response confirms that the security person involved in the incident is an employee of the TPSB and not the City. It asks that the Application be summarily dismissed on the basis that the Application discloses no prima facie case as against the City.

11On October 11, 2013, the applicant wrote to the Tribunal asking for a further extension of time with respect to providing the personally named respondent’s contact information until his RFOP is addressed.

12On October 18, 2013, the City responded to the applicant’s RFOP stating it takes no position with respect to adding “Toronto Police Services” as a party. Its letter again states its position it should be removed as a party. The City’s letter then says that although the City may have done business with the personally named respondent on January 7, 2013, the only records of such a transaction would be in a database under the control of the Ministry of the Attorney General and it is not permitted to access that database for the purposes of responding to a human rights application.

13On October 31, 2013, the applicant wrote the Tribunal in response to the City’s letter of October 18, 2013, again objecting to the City’s position that it should be removed as a respondent.

14On November 18, 2013, the Tribunal issued a Case Assessment Direction (“CAD”). The CAD directed the applicant to provide a current address for the personally named respondent by November 25, 2013, or alternatively, file another RFOP for a different order aimed at helping the applicant discover the personally named respondent’s correct address. It also directed the “Toronto Police Service” to respond to the applicant’s RFOP by December 5, 2013; and for the City and the applicant to respond to the “Toronto Police Service” submissions by December 9, 2013.

15On November 25, 2013, the applicant filed another RFOP as directed in the CAD. Essentially the applicant disputes the statement of the City that it is not permitted to access the database belonging to the Ministry of the Attorney General for the purposes of responding to a human rights application and re-states his position that the City should be ordered to produce the personally named respondent’s information.

16On December 5, 2013, the TPSB responded to the applicant’s original RFOP. It takes the position that “Toronto Police Service” is not a legal entity. Rather, in applications to the Tribunal involving policy issues the TPSB is the correct respondent; in applications involving the actions of its employees the proper respondent is Chief of Police, William Blair (the “Chief of Police”). It consents to the Chief of Police being added as a respondent. It agrees with the City that the City should be removed as a respondent to the Application. With respect to the request that it be ordered to produce contact information for the personally named respondent, it takes the position that the applicant’s request is too broad and that it would be inappropriate for the police to use policing resources to perform what is essentially a private investigation on behalf of the applicant.

17On December 9, 2013, the City responded to the TPSB’s submissions as directed in the CAD but the applicant did not. The City’s response repeats its assertions that it does not have access to the information the applicant seeks about the personally named respondent. It also takes the position that the issue is moot as the personally named respondent is not a proper party to the Application as he appears to be a private individual who was not providing services to the applicant.

18On February 20, 2014, the Tribunal issued another CAD directing the applicant to file any reply submissions he might wish to make with respect to the response of the TPSB and the additional reply of the City by February 27, 2014. The applicant complied with that direction.

Should the Application Continue as against the Personally Named Respondent?

19As stated above, the Tribunal’s Rules require that an applicant provide contact information for any named respondents. The applicant has been unable to do so in this instance with respect to the personally named respondent and looks to the Tribunal to order either the City or the TPSB to provide that information.

20I am satisfied that the dispute between the parties regarding whether or not either the City or the TPSB can or should produce the information sought is immaterial as the personally named respondent is not a proper party to the Application given the facts alleged by the applicant. I say this because the Application alleges that the personally named respondent was another customer of the City’s. It is not alleged he is employed by the City or the TPSB; it is not alleged he was providing goods, services or facilities to the applicant.

21As the Tribunal explains in Kim v. Camenietzki, 2013 HRTO 1590 at para. 14:

The Code does not deal with all allegations of discrimination that arise in society. It deals with only specified social areas. These are employment, accommodation (e.g. housing), goods services and facilities, contracts, and membership in a vocational association (e.g. a union). For the Code to apply to an interaction between individuals that allegedly involved a discriminatory action or comment, the interaction must have occurred within one of these social areas. If the interaction did not occur within one of these social areas, the Code does not apply, even if the interaction did involve discriminatory actions or comments…

22The social area on which this Application is based is the provision of goods, services or facilities. The applicable provision is section 1 of the Code which says:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

23So the question is: can the phrase “treatment with respect to services” be interpreted to include how one customer treats another? I believe the answer to this question is no.

24In Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLII 56481 (ON SCDC) at para. 39, the Divisional Court cited with approval the Tribunal’s statement that “service” “must mean something which is of benefit that is provided by one person to another or to the public”. I take this to mean that “treatment with respect to services” is a reference to the behaviour of a service provider.

25In Kim v. Camenietzki, above, the applicant worked for the Worker’s Safety and Insurance Board (“WSIB”) adjudicating claims. The respondent was a health professional. The parties came into contact because the applicant decided that the WSIB would not pay for a course of treatment for the respondent’s patient. In advocating for his patient with the WSIB, the respondent made a remark that the applicant felt was a slur about her ethnic origins. In dismissing the application the Tribunal ruled that there was no service being provided by the respondent to the applicant; so there was no connection between them with respect to services. As a result, s. 1 did not apply to the respondent’s behaviour.

26This is not the same thing as saying that the behaviour of a customer can never give rise to a human rights complaint. It can. For example, an employee who is sexually harassed by a customer and whose employer fails to appropriately respond to her complaints can file an application as against the employer. (See for example: Ankamah v. Chauhan Food Services, 2010 HRTO 2024.) Similarly, with respect to this Application, “treatment with respect to services” would include the respondents’ response to the applicant’s complaints about the personally named respondent.

27But the principle expressed in Kim v. Camenietzki, above, is that “treatment with respect to services” necessarily requires that the behaviour being complained of is behaviour that is connected to the delivery of a service. I agree with that principle. Here, the personally named respondent’s behaviour had nothing to do with the good, service, or facility being delivered to the applicant; he just happened to be present in the same location when the applicant was seeking services in the respondent City’s facility.

28Given the above, it is unnecessary to order the respondents to produce the correct contact information for the personally named respondent. The personally named respondent shall be removed as a named party to the Application.

29In his most recent submission the applicant states that in case the personally named respondent is removed as a party to the Application he wishes to amend the Application with respect to remedy. In the normal course, requests to amend an Application are made pursuant to Rule 1.7(c) of the Tribunal’s Rules of Procedure by filing a Request for Order During Proceedings in Form 10.

Should the Application Continue as against the City?

30Both the City and the TPSB take the position that the City is not a properly named respondent because the Application does not contain allegations of discrimination with respect to persons employed by the City. Having considered the submissions of the parties, I disagree with this assertion by the respondents; I am satisfied it would be premature to dismiss the Application as against the City at this time.

31The Application does make factual allegations as to the behaviour of persons presumably employed by the City. For example, paragraph 42 of the narrative response attached to the Application says:

A court staff member who witnessed the incident and who was notified by persons in the waiting area about the racial slur suggested that both the Personal Respondent and the Applicant would resolve the issue on their own. Consequently, the court staff member took no actions.

32Paragraphs 43 through 46 also make allegations of fact with respect to a supervisor, who is also presumably employed by the City.

33More importantly, although the Application does not explicitly describe the actions of these individuals as discriminatory, it does allege the City was in control of the premises where the services were being delivered and the City’s personnel received complaints about the alleged racist remarks being made on its premises. The Application then states (at paragraph 58) that a service provider is required to take positive steps to “eliminate negative treatment of individuals based on prohibited grounds of discrimination”. In other words, the Application alleges the City discriminated against the applicant by failing to respond reasonably to the complaints its personnel received about the allegedly racist remarks being made on its premises.

34I would also note that the Application was written at a time when the applicant was unaware that the security person who responded was employed by the TPSB and not the City. As a result, it would be unreasonable for the Tribunal to expect that the Application would be drafted in such a manner to carefully delineate the allegations of discrimination as against the City from the allegations of discrimination arising from the actions of the security person.

Who is the Proper Respondent with respect to the Allegations as against the Police?

35As stated above, the TPSB takes the position that the properly named respondent with respect to the allegations involving the actions of its security personnel should be the Chief of Police and not the TPSB.

36The issue of who may be held liable in a Code application where the behaviour complained of involves the actions of a police officer is thoroughly examined by the Tribunal in Phipps v. Toronto Police Services Board, 2009 HRTO 1604, where the Tribunal concludes that TPSB may be held jointly liable with the Chief of Police in those circumstances. That aspect of the Tribunal’s decision was considered by the Divisional Court in the subsequent judicial review: Shaw v. Phipps, 2010 ONSC 3884. In its decision the Divisional Court directly addresses the argument of the TPSB in this case at paras. 113-114 as follows:

The TPSB attempts to direct liability away from itself by drawing a distinction between the role of a police services board and that of the Chief of Police. The TPSB submits that it is the Chief of Police who is the employer for these purposes and not the police services board. Indeed, the TPSB points to the fact that the Chief of Police in this case has accepted liability for the damages award as further support for its position in this regard.

It is not clear to us upon what basis the Chief of Police in this case accepted liability for the damages award. However, the fact that he did so is not determinative of the issue that is before us. A person can, of course, accept liability for the acts of another person even though they may not be legally liable for those acts. That is a matter of personal decision. Regardless of any voluntary acceptance of liability, our task is to determine where the legal liability properly rests.

37The Divisional Court then goes on to conclude at para. 119 that “a police services board is liable for the discriminatory acts of individual police officers”. The Court’s decision in this respect was left undisturbed by the subsequent appeal to the Court of Appeal (see: Shaw v. Phipps, 2012 ONCA 155).

38The Tribunal has stated on a number of occasions that TPSB is the proper respondent in these circumstances and not the Chief of Police. (See for example: Ghafourian v. Toronto Police Services Board, 2009 HRTO 1293, and King v. Toronto Police Services Board, 2009 HRTO 786.) In Hancock v. Toronto Police Services Board, 2011 HRTO 565, the Tribunal states at paras. 22 and 23:

No specific allegations are made against William Blair in the complaint or in the allegations set out in paragraph 15 of Schedule A. Rather, it appears that William Blair is being sought to be added in his representative or institutional capacity as Chief of Police, on the basis of this Tribunal’s decision in Phipps v. Toronto Police Services Board, [above]. This decision subsequently was upheld on judicial review by the Divisional Court…, which confirmed that the Toronto Police Services Board is liable pursuant to s. 46.3(1) of the Code for the discriminatory acts of its officers. While the Chief of Police’s acceptance of liability before this Tribunal was not raised as an issue on judicial review, the Divisional Court did express doubt as to the legal basis upon which the Chief of Police agreed to accept liability for the officer’s actions (see para. 114).

In my view, in accordance with the Divisional Court’s decision in Shaw v. Phipps, [above], the Toronto Police Services Board is the proper institutional party to be held liable if one or more of its officers are found to be liable in this case, and not William Blair as Chief of Police.

39Given the case law above, I believe in this Application the proper respondent before the Tribunal with respect to the behaviour of the civilian employee of the TPSB is the TPSB.

DECISION

40The Application is amended to identify the respondents as set out above in the style of cause.

41The respondent TPSB is directed to file a Response to the Application by April 4, 2014.