Rahman v. The Corporation of the City of Mississauga, 2015 HRTO 1286

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Atiq Rahman

Applicant

-and-

The Corporation of the City of Mississauga

Respondent

DECISION

Adjudicator: Brian Cook

Date: September 29, 2015

Citation: 2015 HRTO 1286

Indexed as: Rahman v. The Corporation of the City of Mississauga

APPEARANCES

Atiq Rahman, Applicant

Ricardo Nobrega, Paralegal

The Corporation of the City of Mississauga, Respondent

Graham Walsh, Counsel

Introduction

1This Application alleges discrimination with respect to services because of race, colour, ethnic origin, and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, the applicant alleges that an Animal Control Officer employed by the respondent discriminated against him and his family in the manner in which she responded to a report of an injured family pet rabbit. The applicant alleges that the Animal Control Officer used her position of authority to bully him and she failed to be sensitive to the issue of wearing footwear inside the home of a Muslim family.

2The Application was heard on June 26, 2015. I heard evidence from the applicant and from Renata Helmich, the Animal Services Officer.

3The background to the allegations is summarized in the Application in the following terms:

My name is Atiq Ur Rahman; I am married and have three children. I am responsible for my wife who is parapalegic and my three small children. I spend my time taking care of my wife and children…

We are not wealthy or financially well off and cannot afford to spend a lot of money on entertainment or activities. Therefore, we as a family made a decision to purchase a pet and bought two rabbits.

The rabbits grew faster than anticipated, they started to multiple and within 2 months there were 8 babies. This was our first experience with rabbits as pets, we had no idea this would happen, or that they matured and multiplied so quickly.

4The applicant and his family live in a third floor apartment. In November 2012, the rabbits were mostly living on the balcony of the apartment.

5On November 20, 2012, the respondent’s Animal Services Office received a complaint that one of the rabbits had fallen off the balcony and was found lying on the ground by a tenant in the building who called the Animal Services Office. Animal Services Officer, Renata Helmich, was dispatched to respond to the call.

6The Officer first went to the apartment of the neighbour who had made the call. She then went to the applicant's apartment. The applicant and the Officer then observed the rabbit. The applicant testified that when the rabbit was put on the floor it hopped along and there were no obvious injuries. In her testimony, Officer Helmich agreed that there were no obvious signs of injury. However, her recollection was that the rabbit was not moving very much and did not hop along.

7The applicant does not believe that the rabbit fell off his balcony. He testified that he had made the balcony railings secure so that the rabbits would not be able to fall off. His belief is that another neighbour stole the rabbit from his balcony. He testified that this neighbour had come on to his balcony and had taken things in the past. He believes that this neighbour stole the rabbit and then gave it to the downstairs neighbour who called with the story that the rabbit had fallen off the balcony. This neighbour had climbed onto his balcony in the past and the applicant had called the police about this following which the neighbour apologized in writing. However, the neighbour never said anything about stealing the rabbit. The applicant agrees that he did not tell the Officer about the theory that the rabbit had not fallen at the time of his initial interactions with Officer Helmich, although he did mention it some months later.

8For the purpose of this Application, it is not necessary for me to make any determination about whether the rabbit fell of the balcony or was stolen. This is because there is no dispute that the Officer understood that the rabbit had fallen off a third floor balcony and had no reason to doubt this history. However, the fact that the applicant believed that the rabbit had not fallen and was therefore not injured is relevant in terms of understanding the subsequent events.

9There is no dispute that during this first encounter Officer Helmich gave the applicant two choices. The first was to surrender the rabbit to her. She told him that this would involve a cost of $214 and also explained that a surrendered animal would likely be euthanized. The other option was that the applicant would take the rabbit to a veterinarian for assessment. She wrote the name of a clinic on a card.

10The applicant testified that this discussion was very upsetting. His children were present and were very upset when the Officer explained that if she took the rabbit it would be put to sleep and would not wake up. In addition, he was upset about the fee of $214.

11The applicant told the Officer that he would take the rabbit to the vet. Officer Helmich issued a Notice of Contravention instructing the applicant to take the rabbit to a vet to be checked and to provide Officer Helmich with the vet’s recommendations.

12The Officer then asked for permission to have a look at the balcony. She testified that there appeared to be 11 rabbits on the balcony, for a total of 12 rabbits including the injured one. A City By-Law provides that a maximum of four animals can be kept in a household. The Officer determined that the applicant was in violation of this By-Law and she gave him a Notice of Contravention stating that he was required to remove eight of the rabbits by December 11, 2012.

13The applicant testified that he then took the rabbit to the address provided by the Officer but there was not a clinic at the address. He asked for assistance from the police and was given the correct address. He took the rabbit to the clinic. He testified that the person he spoke to (Melanie) told him that there was no vet present who specialized in rabbits and that he would have to come back. Melanie gave him an appointment for November 26. The applicant testified that he told Melanie that Officer Helmich thought the rabbit might be injured. He did not tell Melanie that he thought the rabbit was injured because he did not think it was.

14The applicant then returned home with the rabbit. Later that evening, Officer Helmich called the clinic to see if the applicant had brought the rabbit. She testified that Melanie told her that the applicant had not mentioned that the rabbit had fallen from a third storey balcony. Melanie told Officer Helmich that the applicant could return to the clinic for an emergency assessment by the vet who was there although the vet specializing in rabbits was not at the clinic. Melanie called the applicant to tell him to bring the rabbit but she later called Officer Helmich to tell her that the applicant had refused to bring the rabbit back. Officer Helmich then called the applicant and instructed him to take the rabbit to the vet but he refused.

15The applicant testified that he was told by Melanie and Officer Helmich to take the rabbit back. He said that by that time, he had spent about five hours taking the rabbit to the vet as instructed and that he could not spend more time because he needed to care for his wife and children. He told Officer Helmich that he would take the rabbit back for the scheduled appointment on November 26.

16The next day, Officer Helmich returned to the applicant’s apartment. According to the applicant, Officer Helmich told him, using a raised voice, that he had to surrender the rabbit to her. She told him he had to sign a paper which he did but he did not read the paper. He said that he asked her if everything would be OK if he gave her the rabbit. She told him it would. She then took the rabbit and handed him a ticket for $305.

17The ticket was a Certificate of Offence for “Fail to treat animal in a humane manner contrary to the By Law”. The Certificate of Offence is like a parking ticket in that the person to whom it is issued can agree to pay a fine, which in this case was $305, or fight the Certificate in Court which could result in a total fine of $385. Officer Helmich agreed that she had discretion about whether to issue the Certificate. It is not clear whether the Certificate was issued because of the applicant’s failure to take the rabbit to the vet or because the applicant was keeping the rabbits on an outside balcony in November when the weather was starting to turn cold. Officer Helmich testified that it was the former, but in a memo written about the events, she indicated it was the latter. Officer Helmich agreed that she gave the applicant the Certificate after he surrendered the rabbit. She agreed that the applicant was quite upset to receive the Certificate.

18Officer Helmich then left with the rabbit. The applicant ran after her in his bare feet and pyjamas and objected. She put the rabbit in a cage in her car and drove away.

19Officer Helmich took the rabbit to the respondent’s animal shelter where it was assessed. It was determined that there was nothing wrong with the rabbit. Officer Helmich testified that she thinks that the applicant might have surrendered a different rabbit. She testified that she questioned the applicant about this and he assured her it was the right rabbit, explaining that he had tied a string around the rabbit’s neck to identify it.

20A few hours after she took the rabbit, Officer Helmich called the applicant to tell him that his rabbit was fine and that he could come and collect it. He said that he would only come to get if he was provided with certification that there was nothing wrong with the rabbit. She told him that the City does not provide such certification.

21This standoff continued for some months. The City issued boarding fees for keeping the rabbit. By the beginning of January, the amount owing was approximately $1351. The applicant had contested the Certificate and a court date had been set for March, 2013. The applicant proposed that the City keep the rabbit until that time. The applicant was told that by then the fees would be approximately $4000. Officer Helmich brought invoices to the applicant’s apartment on several occasions concerning the mounting boarding fees. The applicant testified that these were sometimes put under his door and sometimes taped to his door.

22The applicant finally went to the City’s animal shelter on January 29, 2013, and retrieved the rabbit. The administrator of the shelter waived the boarding fees.

23In the meantime, Officer Helmich returned to the applicant’s apartment on December 12, 2012 to determine if the order about removing all but four of the rabbits had been complied with. The applicant advised that he had got rid of all of the rabbits by advertising on Kijiji. Officer Helmich asked to see the balcony to verify this and the applicant agreed to let her look at the balcony.

24According to Officer Helmich’s notation regarding that visit, the applicant told her at that time about his theory that the original rabbit had been stolen by a neighbour and had not fallen from the balcony.

25The court date for the Certificate of Offence in relation to alleged inhumane treatment of an animal did not proceed in March but instead was set for a date in July 2013. A few days in advance of that, the matter was reviewed by a Prosecutor with the respondent’s legal department, who determined that there was no reasonable prospect of a successful prosecution and the matter was withdrawn.

Allegation of discrimination on the grounds of creed

26The applicant and his family are Muslim. The applicant testified that they use rugs in their apartment as prayer mats. The applicant indicated that the floor is wooden but he installed carpets because neighbours complained about noise coming through the floor. He has smaller carpets on top of these carpets which are used for the prayer.

27In the Application, the applicant alleged that Officer Helmich entered his apartment wearing her shoes and that she walked on the prayer carpets in her shoes.

28In the Response, the respondent advised that officers are required to wear safety shoes for health and safety reasons.

29At the hearing, the applicant said that other service providers who come to his home come equipped with shoe coverings which they put on before entering the apartment. Officer Helmich testified that the respondent has not provided shoe coverings. She testified that she was not really familiar with the significance of prayer carpets.

30At the hearing, the applicant and Officer Helmich agreed that there was discussion about the officer’s shoes and that she explained that she was not allowed to remove her shoes. The applicant testified that he rolled up the carpets used for prayer and so Officer Helmich did not walk on the prayer carpets.

31It appears that the issue of the applicant's objection to Officer Helmich walking in her shoes on prayer carpets was resolved by the expedient of rolling up the carpets. I therefore find that there is no basis for an allegation of discrimination on the grounds of creed.

32I do note that for many people, including people of various creeds and cultural backgrounds, it is expected that visitors will remove their footwear when entering a home. As noted by the applicant, one form of potential accommodation about this is for people who are required to keep their shoes on for health and safety reasons to have disposable shoe coverings that can be put on over the shoes when in the house. The respondent may wish to consider this as an option for its Animal Control Officers.

33Since I have found that there was not discrimination in regard to this issue I make this observation only as a comment.

Allegation of discrimination on the grounds of race, colour, and ethnic origin

34The basis for this allegation is the applicant's experience of feeling bullied by Officer Helmich. Having considered the evidence, I understand why the applicant felt bullied. As I understand his situation at the time, he was not familiar with the respondent’s By-Laws or the existence of the Animal Control Office. It appears that he first learned that one of the rabbits was not on the balcony when Officer Helmich appeared at his door. In the initial conversation, in the presence of his children, he was told that an option would be for the rabbit to be “put to sleep”. When he asked when it would wake up he was told it would not wake up. He was also alarmed to hear that this option would cost over $200. He chose the second option of taking the rabbit to a vet and then had a frustrating experience because the clinic was not where Officer Helmich said it would be. He got to the clinic and was advised that the rabbit vet was not available and that he could come back in a few days. He was concerned because that assessment was going to cost over $80. The next day, Officer Helmich appeared again and asked him to surrender the rabbit. He asked her if everything would be OK if he did, and I believe that further cost was a major source of his concern. She told him that everything would be OK if he surrendered the rabbit and then handed him a $300 ticket when he did surrender the animal.

35Within a few hours, he was told there was nothing wrong with the rabbit, thus confirming his view that the rabbit was not injured (assuming that the right rabbit was surrendered). Based on the events to that time, he perhaps understandably wanted some statement to prove that there was nothing wrong with the rabbit but he was told such a statement would not be provided.

36He then learned that he had a bill of $2,000 which was mounting by the day for boarding the rabbit and was reminded of this on several occasions when Officer Helmich left invoices at his apartment, sometimes taped to his door.

37The applicant’s original expectation that acquiring bunnies would be a source of inexpensive entertainment for his family which had little resources were completely dashed and the situation had turned into something of a nightmare. According to the applicant, the health of his disabled wife deteriorated significantly and he too experienced many negative feelings as did his children.

38Fortunately, the costs associated with the experience were removed because the people at the shelter that was boarding the rabbit agreed to waive the boarding charge and the Certificate or ticket was withdrawn. These actions by the respondent’s employees who were involved seem to be examples of an empathetic response to the applicant's actual circumstances. It seems to me that the same cannot be said of Officer Helmich’s behaviour.

39As I indicated, I can certainly appreciate why the applicant felt bullied and powerless in the face of the respondent’s exercise of its authority with respect to the treatment of animals and it appears to me that the situation could certainly have been handled in a better way. However, while there is evidence of a customer service issue, I find that the evidence does not establish that the applicant's experience was related to his race, colour, ethnic origin, and creed. The applicant did not identify anything that Officer Helmich said that would indicate discrimination contrary to the Human Rights Code. His belief of discrimination is based on his experience of being bullied and treated unfairly and with a lack of compassion. The applicant assumes that this must be the reason for the treatment he received but there is no evidence to support this assumption because there is no evidence that Officer Helmich treated him differently than she treats other people who are not associated with the Code grounds identified by the applicant.

40In considering the totality of the evidence, I must conclude that the applicant has not established that he experienced discrimination contrary to the Code and the Application is dismissed on that basis.