Everton Haye v. Toronto Police, 2015 HRTO 1222

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Everton Haye Applicant

-and-

Toronto Police Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: September 15, 2015 Citation: 2015 HRTO 1222 Indexed as: Haye v. Toronto Police

APPEARANCES

Everton Haye, Applicant Self-represented

Toronto Police, Respondent David Gourlay, Counsel

1This Application alleges discrimination with respect to services because of race and colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Tribunal has not directed the respondent to yet file a Response.

2A Case Assessment Direction, dated May 7, 2015, on its own initiative, the Tribunal stated that it would hold a summary hearing to determine whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that it will succeed. The summary hearing was held on September 14, 2015 and both parties participated.

the summary hearing

3The test the Tribunal applies to this stage in the process is whether an application has “no reasonable prospect of success”. It is the role of the Tribunal to examine the allegations and determine whether or not an application should move to the next stage in the hearing process. If the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. In some cases, the Tribunal finds that only part of the application is considered unlikely to succeed. During a summary hearing, the Tribunal does not hear any evidence. In the case where a Response has not been filed, the Tribunal does not resolve factual disputes.

4During the call, the applicant sought to withdraw references in his Application to the Canadian Charter of Rights and Freedoms (“the Charter”). These references were not opposed by the respondent. I issued an oral ruling permitting the applicant to withdraw those parts of his Application that reference the Charter. This includes the two references on page 8/14 on the Application form (the first under section 8, “What Happened?” and the second under section 9 “How the Events You Described Affected You”) and page 5 of his narrative in the second last and last paragraphs. The remaining portions of the sentences continue, with the Charter references (and sometimes the words preceding them) removed.

5The applicant self-identifies as being a black man. He alleges that on April 21, 2014 he was singing at a street corner in downtown Toronto. A white male told him to turn his music down and leave, but when he did not, the male said that he would call the police. The male contacted the police, who took his complaint seriously as they later came to the street corner and told the applicant that he was disturbing the peace and to move on. He was not charged with a by-law infraction, or charged criminally. He was not warned. The applicant disputes that he was disturbing the peace, disputes that he was singing when the police arrived, submits that a noise bylaw does not come into effect until after 11:00 p.m. and this was approximately 8:00 p.m., and claims that the police did not ask whether or not he had a busking license. He was not panhandling.

6The applicant alleges that other individuals, who are not black, are permitted to remain on the same corner, including a white man from Ireland who sings, and a white man who panhandles. The applicant says that he has pictures and videos from around the same time period showing others who are not required to move along as he was required to do by the police.

7The applicant alleges differential and disparate treatment by the police based upon the grounds of race and colour. He asserts that the Tribunal ought to consider an intersectional approach to discrimination in determining his Application. He says that he has some documentation pertaining to the complaint to the police, but did not file anything with the Tribunal. He seeks production of the complaint that the “white man” made to the police, but not the name or address of the individual, and says that he has copies of the notes from the police officer’s notebooks.

8The respondent submits that the Application should be dismissed as having no reasonable prospect of success. The applicant’s allegations about other individuals who have remained on the corner is extremely vague and the applicant has not established a link between the Code grounds and the respondent’s actions towards him. The respondent points to sections from the Criminal Code and Toronto’s Municipal Code pertaining to noise bylaws and submits that the time of day can be irrelevant for violations.

order and next steps

9After reviewing the information before me, I have determined that the Application can continue to proceed, bearing in mind the Ontario Court of Appeal’s comments in Peel Law Association v. Pieters, 2013 ONCA 396. At para. 72, the Court held, “The question whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application [sic] for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence”.

10Allowing the Application to proceed does not indicate that ultimately the applicant will be successful in proving discrimination. Like all applicants who appear before the Tribunal, this applicant bears the onus of proving discrimination on a balance of probabilities.

11The respondent shall file a Form 2 Response to the Application within 35 days of the date of this Interim Decision.

12The applicant shall file any Form 3 Reply within 14 days of his receipt of the Form 2 Response.

13The applicant and the respondent shall advise the Tribunal by October 30, 2015, copying each other, whether they are agreeable to participating in mediation.

14If the parties are not interested in participating in mediation, the Application shall be scheduled for a one-day hearing.

15I am not seized with this matter.