Sivanadian v. Toronto Police Services Board, 2014 HRTO 679

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ruban R. Sivanadian

Applicant

-and-

Toronto Police Services Board and James Beardsall

Respondents

DECISION

Adjudicator: Janice Sandomirsky

Date: May 13, 2014

Citation: 2014 HRTO 679

Indexed as: Sivanadian v. Toronto Police Services Board

APPEARANCES

Ruban R. Sivanadian, Applicant

Self-represented

Toronto Police Services Board and James Beardsall, Respondents

Michele Wright and David Tortell, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges discrimination in the delivery of services on the basis of race, colour, ethnic origin, disability and reprisal or threat of reprisal.

Request to defer the hearing

2Prior to the hearing, the respondent filed a Request for an Order During Proceedings ("RODP") asking the Tribunal to defer the hearing of the Application pending the outcome of an application for judicial review in Her Majesty the Queen in Right of Ontario et al v. DeLottinville, Court File No. 534/13 ("DeLottinville"). This judicial review is considering the Tribunal's decision that applications cannot be considered "appropriately dealt with" within the meaning of section 45.1 of the Code, through the complaint process under the Police Services Act, R.S.O. 1990, c. P.15 as amended ("PSA").

3In this case, the applicant initiated a complaint with the Office of the Independent Police Review Director ("OIPRD") regarding the same events outlined in his Application. Indeed, the narrative of the complaint attached to the Application is headed "Complaint to the OIPRD" and identical to the complaint to the OIPRD. The OIPRD released a decision in July 2013 finding that there was insufficient evidence to support any of the claims outlined in the complaint.

4The respondent submitted that, if the hearing of this Application proceeds, and the court subsequently does not uphold the Tribunal's interpretation of section 45.1, the respondents will be precluded from asking that the court's reasons in DeLottinville be applied to this case.

5The applicant asked that the hearing of his Application not be delayed further. He pointed out that the events in issue occurred in March 2012, he waited until January 2013 before filing a formal complaint with the OIPRD hoping to receive an apology from the respondent James Beardsall ("Beardsall"), and he did not receive the decision dismissing the complaint until July 2013. He submitted that there have been too many delays, no real investigation of his concerns, and the respondents had enough opportunities to respond to his concerns.

6Section 45 of the Code sets out the Tribunal's power to defer an application in accordance with its Rules. Rule 14.1 states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

7The Tribunal may exercise its discretion to defer an application where the parties are involved in another proceeding and there is a possibility of inconsistent decisions on fact or law. Some of the factors the Tribunal considers in exercising its discretion are: the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the application given the status of each proceeding and the steps taken to pursue them. (See Ferguson v. Toronto Police Services Board, 2014 HRTO 369 and I.K. v. Children's Aid Society of Toronto, 2014 HRTO 120).

8Applying these factors to this Application, I denied the request to defer the hearing pending the outcome of the judicial review in DeLottinville for the following reasons:

• The parties to this Application are not the same as the parties to the judicial review application;
• There is no other proceeding currently underway considering the facts underlying this Application that could lead to a potential inconsistent finding of fact;
• It is entirely speculative at this point what, if any, impact the review of the Tribunal's finding on the application of section 45.1 of the Code may have on this Application;
• The respondents have not requested a dismissal of the Application pursuant to section 45.1 of the Code.

the applicant's evidence

9At the hearing, the applicant adopted the narrative set out in the Application as his evidence.

• The Applicant identifies as a black Sri Lankan man of Indian origin.
• On March 17, 2012, the applicant's car was towed from a Tim Horton's parking lot and taken to the premises of a towing company.
• When the applicant went to pick up his car from the towing company's premises, he saw what he thought was new damage to the car and filled out a damage report.
• The person at the towing company's counter told the applicant that the damage would be assessed to determine whether the company would pay for it, and he should return on March 19 to speak to the manager.
• The applicant requested a copy of the tow card made out by the police officer who authorized the towing of the car. He was told he could get the tow card at the police station and he could file a police report about the new damage.
• The applicant went to the police station and made an inquiry about the tow card. He was not provided with any of the requested information and left the station to return later that day and then again the next day when an officer took down his information and took pictures of his car.
• On March 19, the applicant returned to the towing company's premises to speak to the manager about the damage to his car. The manager looked at the car and told the applicant that the damages were not caused by the towing. The manager said that the tow card indicates that the damage was on the car before it was towed.
• The applicant asked to see the tow card and the manager refused. The applicant was not happy with the manager's response to his concerns and continued to question her about the decision.
• The manager told the applicant that there was a police officer, Beardsall, in the office at the time and she would ask him to explain the report.
• The applicant spoke to Beardsall about the tow card. Beardsall started to explain the tow card and examined the damage on the car. Beardsall told the applicant the damage on the car was recorded on the tow card before the car was towed.
• The applicant and Beardsall disagreed about the notations of the damage on the tow card.
• The applicant said that Beardsall got angry and walked aggressively towards him, charging with his body and said "you are a fucker." The applicant asked why Beardsall was swearing at him and Beardsall started again to charge with his body in a violent action as the applicant moved away and continued to move at him around the car.
• The applicant said he told Beardsall to stop and there was no need to get angry and swear at him. Beardsall then said "you are a fucking dude, leave this place fucker." The applicant asked why he was swearing and calling him dude. Beardsall said "I don't know your name so I can call you dude if I want." Beardsall told the applicant that he did not want to see him again and asked him to come back to the towing company office. The applicant told Beardsall that he would come back if there was a need and the officer said "try and see what happens later."
• The applicant left the towing company's premises and went to the police station. He spoke to a sergeant. He requested an apology from the officer. The applicant filed a complaint with the OIPRD 10 months later. In July 2013 he received a decision finding that there was insufficient evidence to support any of his claims.

10The applicant submits that Beardsall's actions and character showed that a black man or minority should not exercise his rights against a white police officer or question him in any way. He stated that Beardsall's verbal abuse, physical action and threats, name calling and vulgar language were uncalled for. He believed that Beardsall treated him this way because he is a black man.

11When asked about his disability claim, the applicant advised that he collects Canada Pension Plan disability benefits for anxiety, depression, and high blood pressure. The applicant agreed, however, that Beardsall would have no way of knowing he had these problems. He also stated that he has not seen Beardsall since this incident and he experienced no reprisal or threat of a reprisal.

No Reasonable Prospect of success

12The Code prohibits discrimination in the areas of employment, accommodation, goods, services, facilities and contracts and reprisals. The applicant has the burden of proving, on a balance of probabilities, prohibited grounds, in this case race, colour, ethnic origin, disability, reprisal or threat of reprisal were factors in the way Beardsall treated him.

13After hearing the applicant's evidence, the parties made submissions on whether he established a prima facie case. As outlined in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, at paras. 19 to 29, the Tribunal has moved away from the use of the prima facie case analysis and has adopted the more flexible approach of looking at whether the Application has a reasonable prospect of success. As stated in Pellerin at para. 26, "When an applicant has had a chance to fully outline what evidence he or she still intends to call and the basis on which he or she submits the Applicant can succeed, but there is no reasonable prospect that a violation of the Code would be found, the Application should be dismissed." And at para. 32, the prima facie case test "is based on the standard that an application should be dismissed if, assuming all the facts alleged by the applicant to be true, there is no discrimination, and the same principle is incorporated in the concept of no reasonable prospect of success."

14In this case, the applicant alleges that Beardsall treated him in a discriminatory manner during their interaction on March 19, 2012. He believes that his race, colour and ethnic origin were factors in Beardsall's behaviour and use of offensive language. He believes that Beardsall would not have treated a white person in this same way.

15I accept that there was a dispute between the applicant and Beardsall about the tow card and who was responsible for the damage on the car. The dispute may have included language that generally may not be appropriate for a police officer interacting with a member of the public. I accept that the applicant holds a very sincere belief that his race, colour and ethnic origin were factors in the way Beardsall treated him. But simply believing this to be the case is not sufficient to establish a nexus between the Code and the treatment.

16The Tribunal does not have the authority to consider general allegations of unfairness or poor treatment. There must be a basis beyond mere speculation and accusation to establish discrimination on the basis of one of the grounds set out in the Code. (See Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389 at para. 17). In the absence of any evidence to link the prohibited grounds to the behavior, no violation of the Code can be found.

order

17The applicant failed to establish that the alleged conduct was connected to a prohibited ground under the Code. The Application is dismissed on the basis that it has no reasonable prospect of success.