HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gary Lavoie
Applicant
-and-
Greater Sudbury Police Services Board, Greater Sudbury Police Service, and Frank Elsner
Respondents
DECISION
Adjudicator: Ruth Carey
Indexed as: Lavoie v. Greater Sudbury Police Services Board
APPEARANCES
Gary Lavoie, Applicant
Self-represented
Greater Sudbury Police Services Board, Greater Sudbury Police Service, and Frank Elsner, Respondents
David Migicovsky, Counsel
Introduction
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 employment because of disability, marital status, family status, and age; and reprisal. It involves the collapse of the applicant’s lengthy police career and his struggle to stay a serving police officer.
2By way of Case Assessment Direction (“CAD”) issued July 3, 2013, the Tribunal directed on its own initiative that a summary hearing be held to determine whether or not the Application has a reasonable prospect of success. The CAD says the Tribunal scheduled this Application for a summary hearing on the basis that “it appears that the applicant may be unable to prove a link between the actions complained of to the ground or grounds alleged”.
3The CAD also identifies a number of other questions to be canvassed during the summary hearing including:
The Application alleges reprisal contrary to section 8 of the Code. Reprisal involves actions that are intentional and in response to an applicant asserting their human rights. This means the Tribunal needs to understand: how did the applicant assert his human rights; what does he allege the respondents did in response to that assertion of rights; and what proposed evidence is there that might indicate the response was intentional and connected to his assertion of rights?
A number of the allegations in the Application relate to legal proceedings under the Police Services Act. Does the doctrine of judicial or adjudicative immunity mean that the Tribunal does not have the jurisdiction to deal with those allegations?
On March 11, 2013, the applicant filed a Request for an Order During Proceedings (“RFOP”). Among other things the RFOP requests that a number of individuals be added as respondents to the Application. Two of those individuals appear to be opposing counsel in the Police Services Act proceedings. Given the law as explained in Tribunal decisions like Cooper v. Pinkofskys, 2008 HRTO 390, and Ruffolo v. Liang, 2012 HRTO 360, can the Tribunal deal with allegations as against opposing counsel?
4The CAD also indicates that during the summary hearing the parties may be asked to address other outstanding issues related to the applicant’s RFOP of March 11, 2013, and an RFOP filed with the Tribunal by the respondents on May 16, 2013. I would note at this point that the applicant filed another RFOP on July 3, 2013, and the respondents filed one on July 17, 2013. The applicant’s latter RFOP also asks to amend his Application but the additional allegations are the same as those in the earlier RFOP.
5The summary hearing took place by teleconference on February 12, 2014.
THE PURPOSE OF A SUMMARY HEARING
6The 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.
7The Tribunal cannot address general allegations of unfairness unrelated to the Code. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code. Unfair treatment is not discriminatory in the legal sense unless there is proof that one, or more, of these personal characteristics was a factor in the treatment the applicant experienced.
8The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing 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. In some cases, for example, the applicant will not dispute the respondents’ version of one or more of the facts.
9Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the facts or evidence the applicant is able to point to which tend to support the applicant’s belief that he has experienced discrimination.
10Support for that connection may come in a variety of forms: the timing of events; comments alleged to have been made by the respondents; comparisons with how other people were treated. These are just some examples of circumstances that can 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 belief, the application will be found to have no reasonable prospect of success.
11The primary focus in the summary hearing is on the applicant’s proposed 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.
12The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.
THE RELEVANT CODE PROVISIONS
13During the course of the summary hearing I discussed with the parties the meaning of a number of the sections in the Code including sections 5, 8, and 11(1) and the definition of “family status” in s. 10(1).
14Sections 5 and 11(1) prohibit discrimination in employment. They read in part as follows:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of … age, … marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of age, … marital status, family status or disability.
- (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member…
15Section 5(1) is about the right to “equal treatment” “without discrimination”. Section 11(1) is not about differential treatment; it is about the same treatment or a neutral requirement that negatively impacts the applicant because of his membership in the groups identified by the grounds selected. In other words, it is about differential impact. Because of the wording of these provisions, during the course of the summary hearing, I asked the applicant what aspects of the respondents’ alleged behaviour constitutes differential treatment or neutral treatment causing differential impact and invited him to explain why he thinks the treatment or the impact he experienced is connected to the grounds set out in the Application.
16The presence of the phrase “without discrimination” in s. 5(1) means that not all forms of unequal treatment are prohibited by the Code even where there is a connection or link to the grounds alleged. For example, a surgeon may provide different advice regarding the advisability of a particular surgery on an 89 year than a 26 year old with the same condition in the situation where higher morbidity and mortality rates are associated with advanced age. That is not discrimination but a pragmatic decision based on the reality of the situation and the purpose of the surgery. So during the course of the hearing I asked the parties questions about the context in which the allegedly discriminatory behaviour occurred and the purpose of it. In addition, “discrimination” necessarily implies that the differential treatment has to have an adverse or negative impact on the applicant rather than a positive or neutral one. (See: McConaghie v. Systemgroup Consulting Inc., 2014 HRTO 295, at paras. 83 to 85.)
17Family status means the status of being in a parent and child relationship. I brought this definition to the parties’ attention because the Application does not include allegations that the respondents discriminated against the applicant because he is a parent or a son in general or of any particular person. In response to my questions about this ground in the Application the applicant said he did not intend to allege discrimination on the ground of family status; that was a mistake. As a result, the allegations of discrimination because of family status are dismissed as withdrawn.
18Section 8 says:
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.
19The CAD drew the parties’ attention to the Tribunal’s decision in Noble v. York University, 2010 HRTO 878, para. 33 and 34, for its explanation of the elements of a successful reprisal claim. It says:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
In addition, the following principles are relevant:
a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
20This is why during the course of the summary hearing I asked the applicant to identify how and when he asserted Code rights, clarify for the Tribunal the behaviours of the respondents he connects to his assertion of rights, and point to possible evidence of intention to reprise on the part of the respondents.
THE ALLEGATIONS
21The applicant is a police officer with the Greater Sudbury Police Service (the “Police Service”) employed by the Greater Sudbury Police Services Board (the “Board”). The personal respondent is the Board’s Chief of Police.
22The Application says that in October of 2010 the applicant and his common-law spouse separated. The applicant’s now former spouse was a civilian employee working with the Police Service. On December 24, 2010, she went to the Police Service and made a number of allegations of wrongdoing by the applicant. Later, members of her family made additional allegations.
23On March 31, April 4, and May 30, 2011, the applicant was given detailed notice of the allegations against him that the respondents were then investigating.
24On September 7, 2011, the applicant was notified he was being charged with multiple offences under the Police Services Act and he was suspended from duty. The Application alleges the laying of these charges constitutes discrimination because of marital status in breach of the Code. Also on September 7, 2011, the applicant was given notice of additional allegations he was being investigated for.
25The allegations, investigations, and suspension caused the applicant to experience a great deal of stress and he was diagnosed with anxiety and an adjustment disorder.
26The Application alleges that a number of events that followed the applicant’s suspension also constitute breaches of the Code including:
Interference leading to the denial of his short term disability claim;
Being forced to attend a resolution meeting while suffering from the anxiety disorder; and
The offer of a retirement package.
27The applicant’s RFOP of March 11, 2013, seeks an order permitting the applicant to amend the Application to include additional allegations of Code breach involving:
The attendance of a sergeant from the Police Service at the site of a car accident the applicant was involved in;
A second denial of short-term disability benefits following the car accident;
An adjournment request with respect to the proceedings under the Police Services Act;
Tweets exchanged between the personal respondent and one of the lawyers prosecuting the applicant under the Police Services Act;
Separate fraud and perjury charges related to benefits eligibility; and
The seizure of the applicant’s personal firearms from his parents’ home.
28These allegations were also discussed during the summary hearing.
29Because of the number of allegations and the fact that some are in the Application as originally filed and some are not, at the beginning of the summary hearing I listed all of the allegations described above and asked the applicant to confirm my list accurately reflects all of his Code allegations and he said it did. The hearing proceeded on that basis.
30I would note at this point that during the applicant’s paid suspension from work he is required to sign in twice a day. The deadline for the applicant to leave in order to do this on February 12, 2014, arrived while the summary hearing was still on-going. The respondents agreed to waive this requirement to sign in on the afternoon of February 12, 2014, so the applicant could continue to participate in the hearing; I indicated and the parties agreed that the Tribunal would acknowledge this waiver in this Decision so it was in writing for the benefit of both parties.
ANALYSIS
The Police Services Act Charges
31The applicant asserts that when the Police Service laid multiple charges against him under the Police Services Act it discriminated against him on the grounds of marital status. Primarily these charges involve alleged improper use of police computer data bases for personal purposes and failure to keep notebooks.
32The Application is not clear with respect to the allegation of discrimination related to the Police Service laying charges. It says:
My tenure within the organization that I work for is being revoked as a result of a marital breakdown.
In response to the question in the Application that asks why the applicant believes he was discriminated against on the grounds of marital status, the applicant writes:
My now ex-spouse[‘s]… [actions and] allegations against me… has led the Service to go to extreme measures to find proof of Misconduct on my part, so that they may force me into retirement. Prior to the breakdown of my marriage, there had not been any such investigations or allegations/charges against me.
33During the course of the hearing the applicant explained that his spousal breakdown led to his ex-spouse and to a lesser extent, some of her family members, making accusations about him to the Police Service. The applicant says that started the ball rolling which is destroying his career. The Police Service started investigating him and his ex-wife; her employment was terminated and he is facing termination if the Police Services Act charges are not ultimately dismissed. In response to my questions the applicant further explained that only his ex-spouse and her family could have provided the information that led to his charges, and the reason they had access to that information was because of the spousal relationship. I asked the applicant a hypothetical; namely, if his ex-spouse had not gone to the Police Service but told someone else the information and that person was the one who went to the Police Service, would the Police Service have behaved any differently and his answer was it probably would have done the same thing.
34The act of laying Police Services Act charges by the Police Service cannot be discrimination just because the source of the information that ultimately led to the charges being laid was a spouse, ex-spouse, or a family member. Discrimination involves treating people differently because of the listed personal characteristics in the Code or treating them the same where there is an adverse impact as a result of their membership in a protected group.
35The applicant does not allege that the Police Service charged him because he was separated; rather he alleges that if he had not separated his ex-spouse probably would not have provided the information that led to his charges. That is a complaint about his ex-spouse’s behaviour not about the actions of the Police Service. How the Police Service obtained the information is irrelevant with respect to its subsequent behaviour and that subsequent behaviour is what the applicant complains of, namely the laying of charges. As the applicant acknowledges, the charges would have been laid regardless of who provided the information. The charges would also have been laid regardless of whether he was married, single, separated or divorced.
36Similarly the applicant does not allege that the charges have had a differential impact on him because he is a separated spouse.
37During the course of the summary hearing the applicant also alleged that he was treated differently by the Police Service in that while his ex-spouse’s complaints led to him facing Police Services Act charges, his complaints about her allegedly committing criminal harassment were not investigated or acted on. I take this allegation to mean that in delivering policing services to the applicant the Police Service discriminated against him by failing to investigate his criminal harassment complaint.
38It is not clear to me how this allegation constitutes discrimination under the Code on any of the grounds pled by the applicant. As explained in the CAD the Code requires that there be a connection between the treatment complained of and the applicant’s membership in one of the protected groups. The applicant is claiming he was treated differently from his ex-spouse on the basis of his marital status, yet both he and his ex-spouse had the same marital status – they were both separated spouses. So accepting for the purpose of this Decision that the Police Service treated them differently, that differential treatment cannot be connected to the applicant’s marital status.
39In B. v. Ontario (Human Rights Commission), 2002 SCC 66, the Supreme Court of Canada ruled that marital status includes the status of being in a marital relationship with a particular person. There is nothing in the Application or in the submissions of the applicant that indicates he is alleging the differential treatment he experienced was somehow connected to who his ex-spouse is.
40Given the above, I find that the allegation in the Application that the Police Service discriminated against the applicant on the basis of marital status by laying Police Services Act charges against him has no reasonable prospect of success.
Interference with Short Term Disability
41The Application alleges that the respondents interfered with the applicant’s applications for short term disability benefits and that this interference is discrimination on the basis of disability under the Code.
42As stated above, after the Police Services Act charges were laid the applicant was suspended from duty. Pursuant to s. 89 of the Police Services Act such suspensions are with pay. The Police Service’s policy with respect to suspensions says that a suspended officer shall report as directed but is not required to report in certain circumstances, like when on short or long term disability leave. The letter of suspension that was issued to the applicant on September 7, 2011, says he must report to the duty officer at Sudbury’s OPP detachment Monday through Friday at 9 a.m. and again at 4 p.m.
43The day after learning of his suspension the applicant applied for short term disability benefits. His attending physician’s statement says he has an anxiety adjustment disorder. It is my understanding that because of this illness the applicant did not report to the OPP detachment to sign in.
44Police officers employed to work for the Police Service are insured by a third party insurance company. The Police Service plays a role in processing applications and provides information to the insurer about the job duties of the employee; but eligibility for benefits is determined by the insurance company and any benefits payable are paid by the insurer.
45The respondents provided the Tribunal with a copy of an inter-office memo dated September 8, 2011, addressed to the applicant. It informs the applicant that he has some unused vacation credits and hours in his overtime bank and he can use those to stay on payroll in the event that his application for short term disability benefits is denied. The applicant appears to have counter-signed the memo authorising the Police Service to apply those credits in order to keep paying him.
46Also on September 8, 2011, an inspector working in organizational support sent an e-mail to the personal respondent and a number of other officers within the Police Service to notify them that the applicant was applying for short term disability benefits. One of the recipients of the e-mail wrote back saying thanks and:
… as we discussed, we can call the insurers this week to address these STD issues.
47On September 19, 2011, the insurer notified the applicant that based on the medical information provided he was eligible for short term disability benefits. At some point in time the respondents informed the insurer that because of the applicant’s suspension his only job duty was to sign in twice a day at the OPP detachment. The insurer called the applicant and confirmed with him that his disability did not prevent him from signing things like cheques. With that information the insurer reversed its decision.
48The result of this denial was that the applicant had to start attending at the OPP detachment to sign in twice a day as directed in his suspension letter. He also had to repay the salary he received during the period his application for benefits was being adjudicated (minus the vacation and overtime credits he had agreed would be applied in such an event). It would appear that this repayment did not result in the applicant being out of pocket as the Police Service applied some of the applicant’s banked sick credits to that period.
49The applicant does not dispute that it was the insurance company that made the decision to deny him benefits but he points to the e-mail set out above in paragraph 46 of this Decision as evidence in support of the proposition that various senior members of the Police Service conspired to ensure the applicant was denied short term disability benefits. He states that the respondents lied to the insurance company about his job duties but it is not clear why he says this. I believe it is because of the Police Services Act charges. The existence of those charges meant he was compelled to attend an interview by the Police Service on January 26, 2012, and needs to prepare for and attend at hearings. The applicant asserts these activities are job duties because he is compelled to attend them and faces more disciplinary charges if he does not.
50As stated above, for the purposes of a summary hearing the Tribunal usually assumes the facts as asserted by the applicant are true; so the question here is if the Police Service colluded to ensure the applicant was not granted short term disability benefits by lying about his job duties can that behaviour constitute a breach of the Code?
51The applicant compares his treatment to that of his former spouse. She was diagnosed with the same disability as he was and went off work. She received short term disability benefits and there was no interference by the respondents. The Police Services was also investigating her but she was not required to sign in during the period she was disabled from working. After she returned from medical leave she was interviewed by the Police Service and her employment was terminated. In the written submissions filed by the applicant just prior to the commencement of the summary hearing he also asserts no other employee has ever had their short term disability interfered with.
52The difficulty with the applicant’s argument about his wife’s treatment is that they were both disabled with the same illness but still treated differently so the applicant’s disability cannot logically have been a factor in the differential treatment. Rather, it would appear that neutral factors were the cause of the differential treatment; namely she was a civilian employee and the applicant was a serving police officer on suspension as a result of pending Police Services Act charges.
53So when the applicant’s spouse applied for short term disability benefits the Police Service would have provided to the insurer a description of her job duties at the time and the insurer would have had to determine if she was capable of doing those duties. When the applicant applied for benefits his duties were either limited to signing in at the OPP detachment twice daily or limited to doing that plus participating in the Police Services Act proceedings. The insurer’s denial letter states that the applicant’s medical documentation does not support the conclusion that his illness means he is unable to report to the OPP detachment to sign in twice a day; it does not discuss the applicant’s activities that are related to the charges. But this is not a difference with respect to disability; it is a difference with respect to job duties.
54It is clear that the applicant genuinely believes that the respondents are pursuing a vendetta. He says they are out to get him to retire in any way they can. The respondents’ behaviour in telling the insurer the applicant was on suspension and that his only job duty was to sign in, is for the applicant, furtherance of this agenda to break him. As he states in his materials, no other employee has ever had their short term disability interfered with.
55Even if the Tribunal were to hold a hearing and conclude the applicant is the subject of a personal vendetta, it is not discrimination unless the applicant’s disability, age, or marital status was a factor in the respondents’ decision to pursue such a course of action.
56During the course of the hearing I asked the applicant what he believes is the cause of this alleged desire on the part of the respondents to force him to retire. He says he believes it is connected to e-mail correspondence he had with the personal respondent; he says the personal respondent accused him of being a person of interest in vandalising cruisers and harassing senior personnel.
57Given the above, I find that the allegations in the Application with respect to the applicant’s applications for short term disability benefits have no reasonable prospect of success.
58According to the materials filed by the parties at least one other application for short term disability benefits was made by the applicant. It appears to have been because of the car accident that the applicant was involved in in July of 2012 so it is discussed below under “The Car Accident”.
The Resolution Meeting
59Shortly after the applicant was suspended the Police Service wanted to interview him about the allegations that led to the charges being laid under the Police Services Act. The applicant then provided the respondents with a medical note from his physician dated October 13, 2011, which says in part:
I understand that he has a (sic) interview later this month. I wonder if this could be delayed for another 1-2 months because of his mental state. His cognitive/mental state is poor at the moment.
60At some point after that the parties agreed to see if the Police Services Act charges could be resolved between them. A confidential meeting was arranged for that purpose. Because of the medical note provided by the applicant above dated October 13, 2011, the respondents sought additional medical documentation indicating that the applicant was fit to attend the resolution meeting. For this purpose the applicant produced another note from his physician dated December 6, 2011, which says his “depressive symptoms are settling down” and he is “medically cleared” to attend the upcoming meeting.
61The resolution meeting was held on December 8, 2011. The applicant was accompanied by someone from his union or association. The respondents presented an offer to the applicant that would have resulted in the charges being withdrawn and the applicant retired. As I understand it, because of the applicant’s age and number of years of employment, if he had accepted the offer he would have been eligible to receive a reduced pension. On December 22, 2011, the applicant formally declined the offer.
62The Application as originally filed alleges that this offer to take early retirement is discrimination on the basis of age. During the course of the summary hearing the applicant alleged it was discrimination because of disability. For the reasons stated below I find that this part of the Application has no reasonable prospect of success.
63With respect to age, there is evidence the applicant can point to that would support the contention that the offer to take retirement and receive pension benefits is connected to his age as such an offer could not have been made to a younger officer. The difficulty is that this differential treatment is to the applicant’s benefit, not to his detriment. Without an allegation of adverse or negative treatment or impact, the offer by the respondents cannot constitute discrimination on the basis of age.
64With respect to disability, the applicant states that because of his disability he was not capable of making coherent decisions at the time and the respondents knew of his disability yet proceeded with the meeting anyway. There is no dispute the respondents knew the applicant was suffering from a disability at the time in question as that is the precise reason why they asked for medical documentation indicating he was fit to attend the meeting. The applicant produced that documentation from his doctor and provided it to the respondents. The applicant does not point to the existence of other evidence in support of the proposition that the respondents knew or ought reasonably to have known he was not fit to attend the meeting.
65I would note that during the summary hearing the applicant made a similar allegation with respect to an interview he was compelled to attend on January 26, 2012, related to the charges under the Police Services Act. The applicant states that he had no choice but to attend this interview as he could have been charged with neglect of duty if he did not. He provided the Tribunal with a partial transcript from the interview. It indicates that during the course of the interview on January 26, 2012, he objected to it for a number of reasons including that it was being held “contrary to medical advice provided to [the respondents] by my physician dated October 13, 2011”. It was pointed out to the applicant that the October 13, 2011, medical note asks the interview be postponed for one to two months which it was. The compelled interview occurred more than three months later. In response to my questions the applicant indicated that he did not provide additional medical information in support of a request that the compelled interview be further delayed; this means that the applicant cannot point to the existence of any evidence in support of the proposition that the respondents knew or ought reasonably to have known he was not medically fit to attend the compelled interview.
The Car Accident
66On July 10, 2012, the applicant was involved in a car accident when the car he was driving was struck from behind. He experienced injuries to his neck, shoulder, back and leg. The Police Service dispatched to the scene a sergeant. The applicant’s RFOP of March 11, 2013, states that although it used to be the policy of the respondents that a sergeant be dispatched to collisions involving off-duty officers, as of the date of the accident that was no longer true. The RFOP alleges that by sending the sergeant to the scene the respondents further discriminated against him or harassed him.
67As stated above, the Code does not address allegations of general unfairness; nor does it cover all types of harassment. Rather, there must be a connection or link between the behaviour complained of and one or more of the protected grounds. During the course of the summary hearing I asked the applicant what connection there is between the fact that a sergeant was dispatched to the scene of his accident and his age, disability or marital status and he replied “I guess there isn’t”.
68As the applicant agrees there appears to be no connection between the behaviour of the respondents in dispatching a sergeant to the scene and the grounds set out in the Application, I find that this part of the Application has no reasonable prospect of success.
69After the car accident the applicant made another application for short term disability benefits. It was also denied on the basis that the medical documentation provided did not support a finding that the applicant was unable to report to sign in. For the reasons stated above concerning the original denial of benefits, whatever role the respondents may have played in this second denial cannot constitute discrimination in that the applicant cannot point to proposed evidence that supports the contention that his disability, age or marital status are a factor in the respondents’ behaviour.
The Adjournment and the Police Services Act Proceedings
70In July of 2012 the applicant was involved with hearings of his Police Services Act charges. After the car accident he requested an adjournment of the proceedings because of his injuries. The applicant’s RFOP of March 11, 2013, says the hearings officer directed him to provide medical documentation in support of his adjournment request to the respondents’ counsel. The RFOP further says that respondents’ counsel then shared the medical information with a witness officer employed with the Police Service and convinced the hearings officer to summons the applicant’s doctor to challenge the adjournment request. At the hearing of the contested adjournment, respondents’ counsel resisted the request of the applicant for his doctor’s evidence to be heard in private. In the end result the evidence was heard privately and the adjournment was granted.
71The RFOP alleges that in attempting to expose the applicant’s medical information to the public the respondents committed discrimination or harassment contrary to the Code because of disability.
72It is because of this allegation that the CAD directs the parties to be prepared to speak to the issue of adjudicative or judicial immunity during the summary hearing. The CAD also directs the parties to the Tribunal’s decisions in Cooper v. Pinkofskys, 2008 HRTO 390, and Ruffolo v. Liang, 2012 HRTO 360, because the applicant is making allegations against respondents’ counsel. During the summary hearing I asked the applicant for submissions on these issues and he indicated he did not have any submissions with respect to judicial or adjudicative immunity and he was okay with the case law about complaints involving the behaviour of opposing counsel.
73There are a significant number of decisions from the Tribunal that support the proposition that the decisions and actions of an adjudicator exercising these kinds of adjudicative functions are beyond the jurisdiction of the Tribunal because of the doctrine of adjudicative immunity. The CAD directs the applicant to one such example.
74The principle the cases stand for is that although an adjudicative body provides a service within the meaning of section 1 of the Code, not all of its actions can be the subject of an application to the Tribunal. In particular, the decisions and actions of an adjudicator exercising his or her adjudicative function are beyond the jurisdiction of the Tribunal because of the doctrines of adjudicative immunity and collateral attack and the application of s. 23(1) of the Statutory Powers Procedure Act.
75This means that the actions and decisions of the adjudicator presiding over the Police Services Act proceedings described above are beyond the Tribunal’s jurisdiction.
76With respect to the actions of opposing counsel the Tribunal has stated that the relationship between a lawyer and an opposing party is not covered by the Code. In addition to the cases already cited see: Belso v. York Region Police, 2009 HRTO 757. In other words, respondents’ counsel is not providing services to the applicant but rather to the respondents, so his or her behavior is not within the scope of the Code.
77Given the above, I am satisfied that the applicant’s allegations with respect to the adjournment, the conduct of the Police Services Act proceedings, and how respondents’ counsel behaved in representing the respondents during those proceedings, have no reasonable prospect of success.
The Tweets
78On July 26, 2012, the personal respondent and one of the respondents’ counsel involved in the Police Services Act proceedings concerning the applicant exchanged messages on Twitter about policing and keeping notebooks. The applicant believes these tweets are a deliberate attempt to humiliate him further because he is the only officer facing disciplinary charges related to the keeping of notebooks. The exchange is as follows:
[personal respondent]: I took a cruiser out today, attended some calls and stopped a couple of cars. Felt like a real cop again! Remembered why I joined. Awesome…
[counsel]: Hope you took good notes Chief!
[personal respondent]: of course, that’s what all good cops do!
79The applicant states that to him this is a further example of harassment designed to knock him down because he tried to go on sick leave and is standing up for himself.
80Assuming without finding that the applicant is correct in his belief that these tweets are a veiled reference to the allegations he faces under the Police Services Act of failing to keep proper notebooks, the applicant cannot point to any evidence that would indicate they are connected to his disability. Without some indication there is a link to a protected ground, the behaviour is not harassment or discrimination under the Code.
Reprisal
81During the course of the summary hearing I asked the applicant to clarify how and when he claims to have asserted his human rights with the respondents as that is a necessary element in establishing a breach of section 8 of the Code. He gave me two examples.
82First, he says that he asserted his rights by applying for short term disability benefits. Applying for benefits is an assertion of the right to receive the benefit applied for; it is not an assertion of human rights.
83Second, he says that by objecting to the compelled interview on January 26, 2012, because of his medical condition he was asserting his human rights. I accept that at a hearing the Tribunal might well agree with the applicant that this action on his part is an assertion of rights under the Code.
84I then asked the applicant what threat or negative action of the respondents’ resulted from this assertion of rights during the compelled interview. I did this because as stated above, under section 8 there must be an alleged action or threat that is related to the applicant having asserted a right under the Code. His response was that after he made the assertion the interview should not continue because of his illness, the respondents forced him to continue with it anyway and subsequently used the interview against him in the Police Services Act proceedings.
85The difficulty with this proposition of the applicant is that the respondents did not force him to continue with the interview because he told them they should stop due to his medical condition; rather, they forced him to continue with the interview in spite of this assertion of his rights. Clearly, any coercion with respect to the compelled interview occurred before the interview began; they simply ignored his objections and kept going. Similarly, the possibility the respondents would use the evidence gleaned during the applicant’s compelled interview existed from the outset of the interview and did not suddenly arise in response to him raising his illness after the interview began.
86Given the above I am satisfied that the allegations of reprisal contrary to section 8 of the Code have no reasonable prospect of success.
The Fraud and Perjury Charges
87On August 21, 2012, the applicant was arrested and charged with the criminal offences of fraud and perjury. Apparently these charges were the result of an investigation that was initiated by the Police Service, but actually conducted by a different police force. They were related to the applicant’s request to add a new common law spouse to his family unit for benefit entitlement purposes. Apparently there is some question as to whether or not the applicant and his new common law spouse actually lived together in a conjugal relationship for the period required to be eligible for benefits.
88After being arrested the applicant was transported to court for a bail hearing. He was released with certain conditions. One of the conditions was that he reside with his sister rather than his new common law spouse.
89On September 27, 2012, the Police Service brought additional charges under the Police Services Act related to the same conduct.
90The applicant apparently repaid the Police Service the cost it incurred for the additional benefits and the criminal fraud charge was withdrawn. The perjury charge was stayed by the Crown for unknown reasons. The Police Services Act charges are on-going.
91It is not entirely clear to me what role the respondents played in the criminal charges and the decision to transport the applicant for a bail hearing and the imposition of the particular conditions of release. The applicant points to evidence that the Crown during these proceedings said something to the effect that his troubles would cease if he simply retired. But even if I assume the respondents played a role in all of these events, it is not clear from the applicant’s submissions how or why he draws a connection between them and his disability, age or marital status. When asked this question during the summary hearing he stated the behaviour was connected to the respondents’ overall determination to humiliate him sufficiently to get him to retire. As stated above, it does not appear that the applicant can point to any evidence that connects the respondents’ alleged desire to get rid of him to the grounds set out in the Application. Therefore, this part of the Application also has no reasonable prospect of success.
The Firearms Seizure
92Not long after the applicant was arrested on the criminal charges he became distraught and made statements indicating he was intending to harm himself. The applicant voluntarily committed himself to the hospital. As a result of his statements the respondents decided it would be prudent to seize the applicant’s personal firearms which were then in safekeeping with the applicant’s father. Shortly after 9 p.m. on August 31, 2012, the Police Service executed a warrant and seized the weapons from his parents’ home. His mother subsequently had an emotional breakdown and was hospitalised. The applicant hired counsel to fight the seizure and eventually his weapons were ordered returned to him by the Court.
93It is fair to say that this firearms seizure may arguably be connected to the applicant’s disability in that if he had not been suffering from an anxiety disorder he might not have uttered the statements he did. The respondents justify their actions on the basis of safety; individuals who express suicidal tendencies should not be able to access firearms.
94However, the applicant does not actually believe the weapons were seized to protect anyone. Rather he believes it was a further attempt to harass him into resigning.
95He points to the fact that the warrant was executed a week after he was hospitalised and released. I take this to mean that at the time of the seizure the applicant’s medical practitioners were not concerned he was suicidal. He further points to the fact that the weapons were securely stored in his father’s possession and not in the applicant’s. He also alleges the seizure was unlawful because the time it occurred was outside of the permissible time set out in the warrant.
96In other words, the applicant does not actually believe the reason the weapons were seized was because of disability; his suicidal statements were merely a pretext cynically used by the respondents to do more harm to the applicant and his family. The applicant does not assert that the law that permits police services to seize weapons from those who threaten harm to themselves or others as a result of mental illness is not reasonable or bona fide. In other words, the applicant is not taking the position that it is discrimination to seize firearms from mentally ill individuals who are threatening to kill themselves or others; rather he is taking the position that is not why his weapons were seized.
97If that is not why the weapons were seized and the applicant is correct that they were seized in furtherance of the respondents’ alleged vendetta, then the applicant needs to be able to point to some evidence that indicates there is connection between the desire of the respondents for him to resign and the grounds set out in the Application. As stated above, it does not appear that the applicant can point to any such evidence which means that the Application has no reasonable prospect of success.
98Because the Application is being dismissed there is no need to address the other issues raised in the parties’ RFOPs.
DECISION
99The Application is dismissed.
Dated at Toronto, this 7th day of April, 2014.
“Signed by”
Ruth Carey
Member