Francisco v. Ontario (Community Safety and Correctional Services), 2015 HRTO 1028

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Derek Francisco Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services (Ontario Provincial Police) and Lorie Lalonde Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: August 4, 2015 Citation: 2015 HRTO 1028 Indexed as: Francisco v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Derek Francisco, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services (Ontario Provincial Police) and Lorie Lalonde, Respondents Christina Donszelmann, Counsel

1This is an Application dated February 15, 2014 alleging discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address the respondents’ request for dismissal of the Application in part due to delay.

3I also will address an issue that has arisen regarding accommodation of the applicant for the hearing in this matter.

Delay

4This Application arises from two incidents. The first incident occurred on August 14, 2012, when the applicant was in attendance at the court house in Parry Sound. The applicant has a licence for the use of medical marijuana. The applicant states that he was feeling unwell while awaiting his appearance in court, and went outside to smoke his medical marijuana. It appears from the Application that he was doing so inside his parked car. An OPP officer and the court supervisor came outside, and the applicant exited his car and approached them while still smoking his medical marijuana. This resulted in an interaction with the OPP officer that led to the applicant’s arrest. The allegation of discrimination because of disability arises from the manner in which the applicant states that he was treated by the OPP officer and the impact of these events on him.

5The second incident occurred on March 26, 2013, when the applicant re-attended at the court house for an appeal hearing. The applicant states that he spoke with a court supervisor and obtained permission to use a room at the court house for the purpose of smoking his medical marijuana as an accommodation for his disability. Later that afternoon, the applicant states that he was in this room with the door slightly ajar, when two OPP officers pushed the door open. An interaction ensued with the applicant being arrested and handcuffed. The applicant alleges discrimination because of disability as a result of how he says he was treated during the course of this interaction, and alleged unprofessional and degrading comments made by the personal respondent.

6It is clear that the first incident cited in the Application occurred more than one year prior to when the Application was filed, while the second incident occurred within the one year period. The issue for me to determine is whether these two incidents form a “series of incidents” within the meaning of s. 34(1)(b) of the Code, in which case the entire Application would be considered timely, or in the alternative, whether any delay in raising the first incident was incurred in “good faith” within the meaning of s. 34(2) of the Code.

7In determining whether prior alleged incidents form part of a “series of incidents”, the Tribunal considers the following factors:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

See Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 30.

8With regard to factor (c), a useful summary of the Tribunal’s approach is as follows:

When assessing whether the allegations relate to a “series of incidents”, the Tribunal will generally consider the nature of the events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents relating to discrete and separate issues without some connection or nexus. See, for example, Baisa v. Skills for Change, 2010 HRTO 1621. In Pakarian v. Chen, 2010 HRTO 457 the Tribunal defined the word “series” as “a number of things or events of the same class coming one after another in spatial or temporal succession”. In my view a “series of incidents” may be considered to exist where the incidents share a common theme, similar parties and/or circumstances.” See Twyne v. Dominion Colour Corporation, 2013 HRTO 1769.

9The respondents submit that these two incidents do not constitute a “series of incidents” on the basis that these were two discrete and distinct incidents. The first incident occurred after the applicant exited his car while smoking medical marijuana, while the other incident took place while the applicant was in a room in the court house using a vaporizer. The incidents involved different OPP officers, each with their own individual exercise of decision-making and discretion, arising out of distinct events that occurred some seven months apart. The respondents state that there is no evidence that the applicant’s prior incident with the OPP on August 14, 2012 was at issue during the second incident that occurred on March 26, 2013.

10The respondent states that the fact that the alleged incidents occurred under the umbrella of the same organizational respondent does not in itself lead to a conclusion that they must therefore form a “series of incidents”, citing Khatkur v. Peel District School Board, 2012 HRTO 472. The respondent further cites Tribunal authority for the proposition that alleged discriminatory actions and decisions by different individuals who are part of a single organization are not sufficient to establish a pattern of conduct, relying on R.M. v. Toronto Police Services Board, 2013 HRTO 73, Crawford v. Ontario Provincial Police, 2012 HRTO 688 and Touchette v. Ottawa Catholic School Board, 2012 HRTO 80.

11The respondent particularly relies upon this Tribunal’s decision in DeMattos v. Toronto Transit Commission, 2013 HRTO 1124 (“DeMattos”). In that case, the Tribunal considered whether two distinct events involving two different individuals employed by the same organization could be considered a “series of incidents”. In that case, the first alleged incident occurred in October 2011 and the second in March 2012, some five months later. In holding that the October 2011 incident was out of time and should be dismissed for delay, the Tribunal stated (at paras. 8-10):

. . . The alleged incident in October 2011 is out of time unless it can be considered one of a series of incidents with the incident in March 2012. The applicant claims that it is because the incidents were within one year of each other and both involved employees of the TTC and occurred on the same bus route.

I do not agree. Although as described by the applicant the incidents are in some ways similar in that in each case he expected to be given a transfer by the bus operator without requesting one as he had observed others being treated and when he insisted he experienced verbal abuse from the operators. However there is nothing else that connects them, in particular the individuals involved are not the same. I also observe that the two incidents are more than five months apart. I am not satisfied that, given that it was not the same individuals allegedly involved, that these two discrete incidents can be considered a series of incidents within the meaning of section 34 of the Code.

The applicant has offered no explanation for his not filing an Application in respect of the October 2011 incident until almost a year after the second and accordingly there is no need to consider whether or not there is a good faith explanation for the delay. It is also not necessary to consider whether or not the respondent would suffer substantial prejudice if it was called upon to respond to the October 2011 allegations, as it has claimed.

12The respondents submit that similarly in the instant case, the OPP officers involved in the two different incidents were not the same officers, that the events occurred with an even longer temporal break than in the DeMattos case, and that the applicant did not file his Application until almost one year following the second incident.

13In response, the applicant submits that the connection between the two incidents is established on the basis that both incidents involved his prescribed use of medical marijuana and directions from the court as to where he was permitted to medicate while in attendance at the court house. In my view, neither of these factors is a sufficient basis upon which to establish a series of incidents. The fact that both incidents involve the applicant’s use of medical marijuana is not any basis upon which to conclude that the two incidents involved the same parties or circumstances, given the involvement of different OPP officers and the different physical contexts in which the events occurred. Nor is the fact that the applicant says he was acting on the basis of the court’s direction as to where he could medicate a basis to support a finding of a series of incidents, as it is not the court’s decision-making as to where the applicant could medicate that is at issue in this proceeding, but rather the alleged response of the different OPP officers who interacted with the applicant.

14The applicant next notes that in both incidents, he was arrested, placed in handcuffs and searched unlawfully for possession of marijuana. He also states that in both incidents, his medical marijuana was seized by the officers, and then later returned once the applicant’s authorization to be in possession of this substance had been verified. He further states that in both instances, his Health Canada exemption was verified by the officers after lengthy periods of time. While all of that may be true, in my view this is not sufficient to overcome the distinct nature of these separate incidents, which as I have indicated involved different OPP officers and took place in different physical contexts. To put it quite simply, in my view the applicant has not established the kind of pattern of conduct that has been determined by this Tribunal as being required to support the finding of a “series of incidents”. There is simply no real pattern or connection between these two incidents. In the first incident, an OPP officer was responding to seeing the applicant exit a vehicle while smoking marijuana. In the second incident, the OPP officers were responding to the smell of marijuana in the court house. These, in my view, are two distinct and discrete incidents.

15The applicant next states that the OPP officers involved in both incidents are from the same OPP detachment. Based upon the caselaw cited above, that simply is not a sufficient basis to establish a series of incidents. The applicant also alleges that in both instances, the officers involved failed to follow applicable OPP orders or policies. Again, given the distinct nature of the two incidents, that is not a sufficient basis to establish a series of incidents.

16Finally, the applicant relies upon this Tribunal’s recent decision in Association of Ontario Midwives v. Ontario (Health and Long-Term Care), 2014 HRTO 1370 (“Midwives”). In my view, that decision is readily distinguishable from the instant case. The Midwives decision addressed an application alleging a long-standing systemic pattern of gender discrimination in relation to the compensation given to midwives in Ontario. In contrast, the instant Application is based solely upon two incidents and cannot properly be characterized as a claim of systemic discrimination as that term is used and understood in the human rights jurisprudence.

17Accordingly, I find that the August 14, 2012 incident does not form part of a “series of incidents” that extends to and includes the March 26, 2013 incident, within the meaning of s. 34(1)(b) of the Code. As a result, as the August 14, 2012 incident was not raised with this Tribunal within a one year period, I next need to consider whether the applicant has established that his delay in raising this allegation was “incurred in good faith” within the meaning of s. 34(2) of the Code.

18With regard to the issue of whether any delay was “incurred in good faith”, this Tribunal has held that the onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (“Miller”), this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

19The applicant’s explanation for his delay in raising this allegation is that he chose to submit a formal complaint under the Police Services Act regarding the August 14, 2012 incident. He states that this incident was investigated by the Office of the Independent Police Review Director (“OIPRD”), which was not concluded until February 2013. The applicant expressed his understanding that this Tribunal cannot proceed with an application if other matters regarding the incident are being investigated.

20The applicant’s understanding is clearly incorrect and contrary to this Tribunal’s caselaw. This Tribunal has consistently held that persons who feel their rights have been violated are expected to file an application within the one-year time limit specified in the Code, even if this means that they are seeking redress from two different entities or waiting for the result of an investigation: see Agyei-Abankwa v. University of Windsor, 2012 HRTO 92; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670; Poole v. Trent University, 2011 HRTO 2086; Foley v. CAW-Canada Local 222, 2011 HRTO 1224; SB v. Toronto (City), 2012 HRTO 2018.

21As noted by the respondents, if another proceeding is ongoing, the proper approach is to file an application with this Tribunal and then request that consideration of the application be deferred pending the result of the other proceeding. While the applicant states that he had a different understanding, this Tribunal has held that it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights; they must also establish that they had no reason to make enquiries about those rights: see Lafleur v. Kimberley Scott, 2009 HRTO 1141. In the instant case, I am not satisfied that the applicant has satisfied his burden of demonstrating that he had no reason to make enquiries about his rights under the Code arising from the August 14, 2012 and about whether he should delay filing an application until the conclusion of the OIPRD investigation.

22Accordingly, I find that the applicant has not satisfied his onus of demonstrating that the delay in raising the August 14, 2012 incident was incurred in good faith. As a result, this allegation is dismissed.

Accommodation at the hearing

23By e-mail correspondence dated January 15, 2015, the applicant was granted accommodation for the purpose of the mediation in this matter held on January 16, 2015, to use a vapourizer inside his assigned mediation room for the purpose of taking his medical marijuana. As stated in the Tribunal’s letter of January 28, 2015, this accommodation was granted on the basis of the applicant’s representation that this vapourizer emits hot air vapour and not smoke. However, as stated in the Tribunal’s January 28, 2015 letter, a marijuana joint was smoked inside the applicant’s assigned mediation room during the mediation.

24By letter to the applicant dated January 28, 2015, the Tribunal advised the applicant that smoking marijuana indoors, even for medical reasons, during any of this Tribunal’s proceedings is not permitted. The Tribunal stated that in the future, if the applicant has a medical disability that requires him to smoke or vapourize marijuana during a Tribunal proceeding, then the Tribunal will provide the applicant with accommodation by allowing breaks so that he can smoke or vapourize outdoors. The Tribunal further stated that, if the applicant felt that this was not acceptable and wished the Tribunal to consider other forms of accommodation in relation to his medical needs, then the Tribunal remained willing to explore these with him at his request. However, the Tribunal notified the applicant that it might require additional information from him in order to make an informed decision.

25By e-mail correspondence dated February 5, 2015, an individual who attended the mediation with the applicant wrote to the Tribunal taking the position that the Tribunal’s actions towards the applicant were discriminatory. This correspondence states that a licence to use marijuana for medical purposes is a federal licence that allows anyone with such a licence to possess marijuana at any time for medical purposes. It is further stated that Health Canada suggests smoking marijuana, not vapourizing. This provides no basis to support any assertion that a medical marijuana user is entitled to smoke marijuana, as opposed to possess marijuana, at any time or in any specific place. With regard to the reliance on federal paramountcy in this correspondence, this only applies where there is a conflict and no conflict has been shown.

26The applicant subsequently refused to provide his available dates for the scheduling of the hearing in this matter, unless the Tribunal agreed to allow him to smoke marijuana during the hearing. The Tribunal responded by letter dated April 7, 2015 to confirm its commitment to ensure that the applicant is able to access this Tribunal’s services and to accommodate his disability up to the point of undue hardship. However, the Tribunal noted that to the date of the letter, the applicant had not provided information that allowed the Tribunal to meaningfully assess the applicant’s needs or consider why the Tribunal’s proposal to allow the applicant to take breaks during the hearing as needed and smoke marijuana outside does not reasonably accommodate his disability-related needs. The Tribunal stated that it had carefully considered the applicant’s specific request for accommodation by being allowed to smoke marijuana during the hearing, and expressed significant concerns about sidestream THC contained in cannabis smoke and its risk to passive inhalers, particularly in a closed environment. The Tribunal once again expressed its view that allowing the applicant to take breaks to smoke marijuana outside was a reasonable form of accommodation, but continued to express its willingness to explore alternate forms of accommodation if the applicant felt that this arrangement did not meet his disability-related needs.

27As the applicant refused to provide his available dates for the hearing, a Notice of Hearing was issued on April 7, 2015 setting October 22 and 23, 2015 as the hearing dates in this matter.

28On July 7, 2015, the applicant sent e-mail correspondence to the Tribunal stating that he would be exercising his right to smoke marijuana during the hearing “as per federal paramountcy”. The applicant states that he is not seeking to be accommodated by this Tribunal, as he holds a federal licence.

29In my view, the applicant has failed to establish any proper basis which entitles him to smoke medical marijuana during the course of the hearing, whether pursuant to federal law or his licence from Health Canada. Nor has he provided any basis upon which it can be concluded that allowing him to take breaks during the hearing to smoke marijuana outside does not sufficiently accommodate his disability-related needs.

30As a result, the hearing to be held on October 22 and 23, 2015 will proceed on the basis that the applicant will not be permitted to smoke or vapourize marijuana in the hearing room or anywhere in the hearing centre, but will be allowed breaks as required in order to smoke marijuana outside as an accommodation for his disability.

31In his July 7, 2015 e-mail correspondence, in addition to insisting on his “right” to smoke marijuana during the hearing, the applicant states that he will be pursuing legal action against the Tribunal and the parties involved if he is discriminated against, assaulted, threatened with arrest or intimidated.

32I am not prepared to wait until the first day of hearing for such a scenario to unfold. If the applicant wishes to pursue some sort of legal action on the basis that the accommodation this Tribunal is willing to provide to him is somehow discriminatory against him or otherwise in violation of his rights, then this Decision should provide him a sufficient basis to pursue any such action.

33Alternatively, if the applicant wishes to take the Tribunal up on its repeated offers to consider alternate forms of accommodation on the basis of further information or documentation provided by the applicant which do not involve the applicant smoking or vapourizing marijuana in the hearing room or in the Tribunal’s hearing centre, then he is required to do so by no later than August 31, 2015. If the applicant fails to do so and if by that date he fails to confirm his willingness to attend the hearing on October 22 and 23, 2015 on the basis of the accommodation offered by the Tribunal, the Tribunal will dismiss this Application as abandoned and/or due to an abuse of process. In the meantime, the September 7, 2015 deadline for the parties to file their hearing materials is hereby suspended pending resolution of the accommodation issue.

ORDER

34For the foregoing reasons, I hereby make the following order:

a. The allegation arising from the events of August 14, 2012 is dismissed for delay;

b. By no later than August 31, 2015, the applicant shall either (i) provide further information or documentation to the Tribunal regarding alternate forms of accommodation for his disability-related needs which do not involve the applicant smoking or vapourizing marijuana in the hearing room or in the Tribunal’s hearing centre, or (ii) confirm his willingness to attend the hearing on October 22 and 23, 2015 on the basis of the accommodation offered by the Tribunal;

c. If the applicant fails to comply with point (b) above, the Tribunal will dismiss this Application as abandoned and/or due to an abuse of process; and

d. The September 7, 2015 deadline for the parties to file their hearing materials is suspended pending resolution of the foregoing issue.