A.B. v. Toronto Police Services Board, 2015 HRTO 1544

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.B.

Applicant

-and-

Toronto Police Services Board, William Blair and Lawrence Sager

Respondents

DECISION

Adjudicator: Brian Eyolfson

Date: November 16, 2015

Citation: 2015 HRTO 1544

Indexed as: A.B. v. Toronto Police Services Board

APPEARANCES

A.B., Applicant

Self-represented

Toronto Police Services Board, William Blair and Lawrence Sager, Respondents

Antonella Ceddia, Counsel

Introduction

1This Application was filed under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 31, 2013, and alleges discrimination with respect to goods, services and facilities, and employment, on the basis of race, and reprisal.

2The Application names Toronto Police Services Board (“TPSB”), William Blair and Lawrence Sager (“Sgt. Sager”) as respondents.

The applicant’s allegations

3In the Application, the applicant alleges that Sgt. Sager “investigated a lie” from his employer, and refused to investigate the truth from him because of his race. In a 16-page narrative attached to the Application the applicant alleges that he received racially biased services from Sgt. Sager on October 23, 2013, and includes the following allegations:

a. On October 23, 2013, the applicant sent an email to six different people, including a manager at his employer. Before noon on that day, three police officers and two paramedics attended his apartment. The police informed him that his employer called them and told them that the applicant said he was going to jump off his balcony. More particularly, Sgt. Sager said, “There is a report that someone from this unit threatened to jump off the balcony”. The applicant responded, “No”.

b. Sgt. Sager then asked the applicant if he remembered him, and said that the applicant looked different. Sgt. Sager referred to a complaint about two officers. The applicant named the two officers, and Sgt. Sager said, “Yep, I know all about you; I’m Sager.” This was the applicant’s second meeting with Sgt. Sager. The applicant said that he remembered Sgt. Sager, and that he was the officer who threatened to break his nose if he spoke to a witness when he was racially profiled in 2005.

c. Sgt. Sager, “cutting [him] off”, said that they were there for his protection and, “Let’s go!” The applicant said that it was completely unnecessary, that he would like to remain at home and that it was reprisal because he commenced legal action against his employer. He said that he had made many complaints to the police and nothing had been done about it.

d. Sgt. Sager told the applicant to get up and that for his own protection they had to handcuff him. The applicant said that he was not a threat to them or himself, that he would really like to remain at home and that they should be taking action with whoever made the call. The applicant also said that he was working, that they should look at his computer and that there was nothing to worry about. Sgt. Sager said, “Get your hands behind your back!”

e. The applicant was wearing pyjamas and asked if he could get dressed. Sgt. Sager said that one of the other officers would get pants for the applicant and the applicant asked for a “warm up suit”. An officer provided the applicant with clothing, and he dressed over his pyjamas and thanked the officer.

f. Sgt. Sager said, “Turn around!” Sgt. Sager was extremely “red faced” and the applicant said that he should see his face. The applicant asked if he could please leave a note for his wife and Sgt. Sager said, “That’s not really necessary”. The applicant said that he had to let his family know where he would be. Sgt. Sager said, “Fine”, and that they would be taking him to North York General Hospital (“NYGH’) under a “mental health hold”.

g. The applicant asked for a “whiteboard” that was in his kitchen. An officer (P.C. Bruce Jupp) retrieved the board. This is when his ordeal should have ended as his note on the board said that a car was needed by 2:30 p.m. on Friday. At this point, it should have been abundantly clear to any rational and un-biased human being that the caller had lied to the police and that there was no danger to anyone. He replaced the message on the board with, “The Police took me to North York General.”

h. The applicant said that he did not have his wallet and an officer (P.C. Edward Ordinario) retrieved his health card. As P.C. Ordinario was putting handcuffs on him, the applicant explained that he had medical issues with his shoulder, and P.C. Ordinario was kind enough to use two pairs of handcuffs.

i. Sgt. Sager had the most menacing presence of anyone he had ever encountered, the “angriest and happiest look on his face” and the opportunity to make good on his threat to break the applicant’s nose as he promised in 2005/2006. Sgt. Sager was “so red faced” he looked like he was about to “explode”. The applicant told Sgt. Sager about the colour of his face while inside his apartment and it served only to disturb him further.

j. His race was a factor. The officers offered him race-based negative service and did not stop the harassment from his employer. He has provided the police with a myriad of reports citing acts of reprisal against him from his employer. There has been no feedback or investigation brought to his attention, indicating complaints from him as an African Canadian have been acted upon, but justice is swift when Caucasian or Asian perpetrators from his employer make false allegations against him.

k. No officer has ever informed him of any action taken to stop his employer from bullying, discriminating, and making false police reports and assaults against him. Unfair labour practices, bullying, discrimination and assaults from his employer are unabated because the police by omission are complicit.

l. The call the applicant’s employer made to the police on October 23, 2013, was malicious and was an unjustified complaint that constituted “public mischief”.

4Elsewhere in the Application, the applicant alleges reprisal, referring to an earlier case involving racial profiling in which he alleges that Sgt. Sager made threats of bodily harm. The applicant alleges that Sgt. Sager used the call from his employer, which was public mischief, to exact revenge.

The respondents’ Response

5In their Response to the Application, the respondents explain that, from 2005 to 2007, Sgt. Sager was a Unit Complaints Coordinator (“UCC”) at 33 Division. In 2005, the applicant made a complaint about an interaction he had with officers in 33 Division. As UCC, Sgt. Sager obtained statements from the officers and interviewed the applicant. Sgt. Sager met with the applicant to explain his findings that the officers had acted reasonably, and to discuss informal resolution or the option of withdrawing the complaint, which is offered to a complainant following an internal investigation where no wrongdoing is confirmed.

6After the meeting, the applicant made an accusation that Sgt. Sager threatened to break his nose if he did not withdraw his complaint. The applicant’s complaint against Sgt. Sager was dismissed by the Toronto Police Service (“TPS”) on the basis that the allegations were unsubstantiated. Sgt. Sager had no further interaction with the applicant until October 23, 2013.

7In responding to the applicant’s allegations concerning the events on October 23, 2013, the respondents assert, in part, as follows:

A. On October 23, 2013, TPS dispatch received a 911 call from a manager with the applicant’s employer advising that the applicant, who was on long-term medical leave, had threatened to commit suicide. The manager stated that the applicant’s union had just received an email or letter from the applicant stating that he will jump off his tenth floor balcony, and the only reason he had not already jumped off his balcony was that he was concerned about landing on children or anyone below. The manager also informed dispatch that the applicant was unhappy and may have depression.

B. P.C. Ordinario, P.C. Jupp and Sgt. Sager attended the applicant’s apartment to investigate. P.C. Ordinario and Sgt. Sager arrived first and knocked on the applicant’s door. After the applicant answered, Sgt. Sager introduced himself and explained that they were there to investigate a possible threaten suicide call. The applicant stated that he knew Sgt. Sager. Sgt. Sager acknowledged that he had investigated a previous interaction between the applicant and the TPS. He told the applicant that he recognized his name but not him.

C. Sgt. Sager asked if he and P.C. Ordinario could speak with the applicant inside the apartment. The applicant agreed and allowed the officers inside. About this time, P.C. Jupp arrived at the apartment with paramedics.

D. The applicant asked Sgt. Sager why the police were at his apartment. Sgt. Sager explained that someone from the applicant’s employer had called TPS and reported that the applicant had sent a letter or email stating that he was thinking about jumping from his balcony. Sgt. Sager asked the applicant if he had sent such a letter or email to his employer, and if the only reason he had not done so was that he did not want to land on someone below. He further asked if the applicant was suicidal.

E. In response, the applicant admitted that he had been thinking about jumping off his balcony. When Sgt. Sager inquired further, the applicant also said that he tried to see a psychiatrist, and wanted to, but had not visited one yet.

F. At 10:45 a.m., Sgt. Sager informed the applicant that he was to be placed under arrest under the Mental Health Act (“MHA”) and transported to NYGH. Sgt. Sager informed the applicant that he would be able to speak with a psychiatrist at the hospital and get the help he needed.

G. After Sgt. Sager informed the applicant that he was being placed into custody under the MHA, the applicant stated that he did not want to be under arrest. He indicated that he wanted to see a psychiatrist on his own accord, and not on the orders of the police. The applicant stated that he did not want to go because it is normal to think about killing oneself. Sgt. Sager informed the applicant that he did not have a choice, and that the officers were going to take him to a psychiatrist for an assessment.

H. Because it was October and the applicant was not dressed for the cold weather, the officers allowed the applicant to change out of his pyjamas into warmer clothing. They also allowed him to leave a note for his wife on a whiteboard, informing her that he was being taken to NYGH.

I. The applicant said that he did not want to be handcuffed. Sgt. Sager explained that it was necessary. The applicant then informed them that he had a pre-existing shoulder injury. To accommodate his injury, P.C. Ordinario used two sets of handcuffs to make it more comfortable for the applicant, and handcuffed him to the rear. Standard TPS procedure when arresting and transporting is to handcuff a person in the rear using one set of handcuffs. P.C. Ordinario explained to the applicant during transport that the accommodation they provided him used all the handcuffs the officers had at the time.

J. The applicant also informed P.C. Ordinario of a pre-existing hip problem and P.C. Ordinario walked very slowly to the scout car with the applicant to accommodate that injury. At 10:56 a.m. the applicant was escorted to the hospital by P.C. Ordinario and P.C. Jupp followed in his scout car. Sgt. Sager left the scene to return to his general patrol duties and had no further interaction with the applicant.

K. At 11:15 a.m. the applicant and P.C.s Jupp and Ordinario arrived at NYGH. The applicant was escorted to a “quiet room” designed to afford occupants some privacy and to relax anxious patients. At 1:10 p.m. the applicant was seen by a doctor. He denied being suicidal and offered to show the doctor the email he had sent to his employer. The applicant logged onto a hospital computer and retrieved the email which the doctor printed.

L. After seeing the email and assessing the applicant, the doctor issued a “Form 1”. A Form 1 means that the doctor has determined that the patient needs to be monitored and have a psychiatric assessment, and permits the hospital to detain a patient involuntarily for up to 72 hours. The applicant was turned over to the NYGH security staff by the officers who then left the scene and had no further interaction with the applicant.

8The respondents also state that, in 2009, the applicant complained to TPS about an injury he sustained while working, and, in 2013, he complained to TPS that his employer was treating him differently compared to Caucasian or Asian employees, and that his union threatened to fire him if he came to work early. He also told TPS that he felt he was being discriminated against by his employer because of his race. On both occasions TPS officers listened to the applicant and made an occurrence report. They submit that these labour issues were not matters for the TPS to address, and, in both instances, the applicant had indicated that he was already following up in what seemed to be the appropriate venues.

9The respondents deny that the applicant was discriminated against on the basis of any ground under the Code, and submit that at no time did the officers proceed as an act of reprisal for previous complaints made by the applicant. They submit that the TPS received a call that required immediate attention and visited the applicant’s apartment to investigate whether there was a life-threatening situation. They submit that in their dealings with the applicant, the TPS officers acted appropriately and reasonably under the circumstances, and provided reasonable accommodation to the applicant.

Anonymization

10Prior to the hearing, the applicant filed a Request for an Order During Proceedings (“Request”) seeking, among other things, that the “record” of this proceeding be anonymized. The applicant submitted that he hoped to keep identifying details excluded from these proceedings to avert additional monetary losses, and damage to his credibility and feelings of self-worth and well-being.

11The respondents filed a response to the Request, opposing the applicant’s anonymization request. The respondents submitted, among other things, that the concerns the applicant mentioned in his Request do not justify anonymization, and that the applicant has not met the onus of demonstrating that exceptional circumstances justifying anonymization exist.

12By Case Assessment Direction dated February 27, 2015, the Tribunal indicated that the applicant’s anonymization request would be addressed at the hearing. At the hearing, the applicant essentially expressed concerns about the effects that public knowledge that one is alleged to have tried to commit suicide could have. He referred to his privacy, his private medical information and being embarrassed. The respondents submitted, among other things, that the applicant had not provided a good reason for anonymization and that, in the interests of openness and fairness, the anonymization request should not be granted.

13The Tribunal’s Rules of Procedure provide that hearings are open to the public, except when the Tribunal determines otherwise, and that the Tribunal’s written decisions are available to the public. See Rules 3.10 and 3.12 and s. 9(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, as amended. In C.M. v. York Region District School Board, 2009 HRTO 735, the Tribunal explained the concepts of openness and transparency as follows, at para. 20:

…this Request raises important issues about the openness of the Tribunal process. An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents [are] found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. … It is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights systems depends, in part, upon knowing how the Tribunal addresses the particularly [sic] parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

14At the same time, Rule 3.11 of the Tribunal’s Rules provides that the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so. The Tribunal’s Practice Direction on Anonymization explains that, while requests for anonymization are considered on a case-by-case basis, the Tribunal’s general approach is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting anonymization. The Practice Direction states that anonymization orders are only made in exceptional circumstances, and notes that the Tribunal has granted anonymization requests where there were specific threats to personal safety and where there was highly sensitive medical information or particularly sensitive information relating to an acute mental health crisis.

15In C.C. v. [….] Restaurant, 2014 HRTO 1821, the Tribunal found that evidence tendered at the hearing about an individual’s intention to commit suicide and subsequent involuntary hospital admission were examples of sensitive information favouring anonymization. In the present case, there is evidence that the applicant wrote to a number of individuals by email referring to considering ending his own life and that he was subsequently detained at a hospital under the MHA. In the circumstances, I am satisfied that this Decision contains particularly sensitive medical information concerning the applicant sufficient to justify anonymization. The applicant’s name will be anonymized in this Decision using the letters A.B.

EVIDENCE

16The applicant and the individual respondent, Sgt. Sager, testified at the hearing. In addition, the respondents called P.C. Ordinario and P.C. Jupp as witnesses. The parties also provided the Tribunal with some documentary, video and audio evidence.

The applicant

17The applicant testified that he was the victim of a public mischief call made by his workplace Manager to the police on October 23, 2013, and that this is what this case is about. He explained that, instead of arresting his Manager who is a White male and who broke the law, Sgt. Sager, who demonstrated racial violence or bias against the applicant in a previous human rights case, arrested him as a Black male victim. He testified that he was unjustly arrested on October 23, 2013, while working at home, and at no time did he consider hurting anyone, or himself, based on work, or non-work, related issues.

18The applicant testified that he never shared with the respondents that he planned on hurting himself. Also, four people who he sent an email to on October 23, 2013, and a doctor who he saw on October 21, 2013, had no reason to call the police. He testified that there was “zero substance” to the public mischief call from his Manager, who twisted the applicant’s words and broke the law when he made a false report to the police on October 23, 2013. The applicant testified that biased officers like Sgt. Sager are quick to support lies from Caucasian men like his Manager. He testified that, instead of serving and protecting him, Sgt. Sager dismissed the truth because of his bias against the applicant, a Black man. He also testified that his second encounter with Sgt. Sager illustrated Sgt. Sager’s “racist tunnel vision”, and that it stopped Sgt. Sager and his two subordinate officers from searching his apartment.

19The applicant testified that, on October 23, 2013, his mobility rights were violated for a second time by Sgt. Sager. Under his biased leadership, he was surrounded by three officers, told there was a threat, and taken to a hospital in handcuffs against his will. He was so humiliated. At the time, he was at home working on his home-based business. He was not doing what the respondents claimed he was doing. His Manager, a White male, broke the law, but was not humiliated by an arrest at his workplace. The applicant testified that he was the victim of a prank call, and instead of going after the person who made the call, the respondents went after him.

20The applicant testified that the respondents were provided with enough information to determine that the call from his Manager was prejudiced and baseless, but that Sgt. Sager’s ongoing racial bias towards him made him “deaf, dumb and blind” to the truth that he expressed to all three officers, without question, that he made no threat to anyone. He testified that there was no threat on the “tenth floor”.

21The applicant also testified to the effect that the respondents’ remark that he said that he planned on taking his own life was absurd given that he had recently changed to a new life insurance policy with a lower value and a “suicide exclusion”. He testified that the police ignored “these reports” from him. At no time was he considering committing suicide or hurting anyone.

22The applicant testified that on October 23, 2013, he was at home working on his home-based business, and not doing what Sgt. Sager falsely stated he was doing. He testified that he offered the three officers access to his computer, where they could have seen his daily communications, but they refused to look, and Sgt. Sager stopped them from “moving forward”. He also testified that his plans for the Friday (October 25, 2013) were on a whiteboard, and P.C. Jupp handed him his whiteboard which had no reference to him “executing the false statement of Sgt. Sager”. The applicant essentially testified that there was a note to his son on the whiteboard saying that he needed the car by 2:30 p.m. on Friday. He testified that he could not imagine how someone could be ending their own life and still be around on Friday to go to a doctor’s appointment.

23The applicant testified that the officers surrounded “a Black victim of a public mischief call from a White male”, and told him there was a threat. There was no conversation or discussion, and they arrested him. They exchanged information but it was the officers “talking down” to him and taking him to the hospital in handcuffs against his will. All three officers refused access to his workspace and dismissed information on his whiteboard. They denied his basic human rights and ignored irrefutable proof that he was at home lawfully and peacefully working on his new home-based business.

24The applicant testified that he previously reported a co-worker to the police in relation to verbal harassment, but the police did nothing. He testified that he was treated differently by the police, as compared to Caucasian males who have violated his rights.

25The applicant referred to an email he wrote dated October 23, 2013, which he testified led to the public mischief call. In the email, the applicant states, among other things, that bullying and other unfair labour practices, discrimination and unfair union representation from his employer, his peers and members of his union have forced him daily to consider ending his own life, to make the abuse stop. He also states in the email that the only thing stopping him from jumping off his tenth floor balcony is that he does not wish to cause harm to children or anyone who may be in front of the building, and that there is nothing normal about wishing to end one’s life. He also states that he was physically and mentally sound before joining his employer.

26The applicant testified that the call his employer made was a public mischief call and that it was mishandled by the police. He believes that it was mishandled because of his race and his history with Sgt. Sager. He testified that, on October 23, 2013, Sgt. Sager was extremely hostile, condescending and listened to the caller and not him. He testified that Sgt. Sager dismissed everything he said, as if he did not deserve equal treatment under the law, and that is why he was at the hearing before the Tribunal.

27In cross-examination, the applicant confirmed that he sent the email dated October 23, 2013, to various people, including a representative of his union. He testified that he sent the email at around 12:55 a.m. on October 23, 2013. He disagreed that it would be reasonable for someone reading his email to think that he was thinking of ending his life. He testified that he took poetic licence with his words to secure an appointment with a psychiatrist, and he has never considered ending his life.

28The applicant testified that when the officers attended his home on October 23, 2013, he recognized Sgt. Sager after he said something to jog his memory. He testified that Sgt. Sager made a remark that reminded him that he was the officer who threatened to break his nose after he was racially profiled in 2005. He did not remember what the remark was.

29The applicant testified that Sgt. Sager said he received a call that there was a threat on the tenth floor. Towards the end of their time together, Sgt. Sager mentioned that he was being arrested under the MHA and the applicant told them various reasons why this was an act of reprisal. The applicant testified that he told the officers that they should be speaking with the party who made the prank call. The applicant denied that he admitted to the officers that he considered killing himself. He testified that Sgt. Sager essentially said that he was being arrested for his own protection, and explained that he was going to be taken to the hospital. He testified that Sgt. Sager was very red-faced.

30The applicant testified that he told the officers he had a shoulder injury and he asked them not to put his arms behind his back. He agreed that the offices put two sets of handcuffs on him, but testified that it did not diminish the pain. He also testified that he asked several times to write a note for his wife on a whiteboard, that the officers were reluctant to allow him to do so, but he did write a note for his wife saying where he was going. He also testified that he asked to change his clothes, and the officers allowed him to do so, but with great reluctance.

31The applicant testified that the officers took him from his apartment to a cruiser and P.C. Ordinario drove him to the hospital. He testified that he had pain in his left leg and he let the officers know and asked them to move slowly because he could not move quickly and they complied. He testified that the officers did not abuse him physically. He did not disagree that Sgt. Sager left after he was placed in the cruiser.

32The applicant testified that, at the hospital, he waited in a room with P.C.s Jupp and Ordinario and a doctor eventually saw him. He agreed that he mentioned to the officers that the handcuffs were uncomfortable and that they allowed him to be handcuffed at the front. He testified that it still did not change the embarrassment and pain he was feeling.

33The applicant testified that, at the hospital, he went on to a computer and a doctor looked at his October 23, 2013, email, but did not read the entire email. He testified that the doctor said three times, “suicidal ideology”. He also testified that it is very likely that P.C.s Jupp and Ordinario saw the entire email. The applicant agreed that he was held at the hospital by the doctor, and the officers left the hospital.

34The applicant testified that Sgt. Sager showing up at his apartment was no accident, that Sgt. Sager knew who he was and he believes that Sgt. Sager showed up as some form of vendetta. He also disagreed that Sgt. Sager would not have known the race of his Manager who called the police. He testified that he previously visited the TPS station that Sgt. Sager now works at and he complained about his Manager and other co-workers and identified them by race.

P.C. Ordinario

35P.C. Ordinario testified that on October 23, 2013, he was working as a Primary Response Unit responding to 911 emergency calls. At 10:14 a.m. he received a radio call to attend the applicant’s residence regarding a “threatened suicide”. The complainant was a Manager with the applicant’s employer. P.C. Ordinario testified that he received information that the applicant had sent an email with some indication about jumping off a balcony. He did not know the applicant.

36P.C. Ordinario explained that they have computers in their cars and when they get dispatched the computer provides the address they need to attend, the complainant’s information and the text or nature of the 911 call. He referred to an “I/CAD” document and testified that what was in the document is what he received on his computer at the time of the 911 call. The document refers to the “Event Type” as “Threaten Sui”. It also refers to a Manager with the applicant’s employer by name and includes information that the applicant advised his union by email or letter that he would jump off the tenth floor, and the only thing stopping him was that he did not want to chance landing on someone on the ground. It also states that the applicant was on long-term medical leave, that he has done this before and that he suffers from depression. P.C. Ordinario testified that he treated the information he received as an emergency and went straight to the applicant’s address.

37P.C. Ordinario testified that he arrived at the applicant’s address at 10:28 a.m. and waited for Sgt. Sager to attend. He explained that for a call like that a minimum of two officers are required to attend, because it is an emergency call and for officer safety reasons. He testified that Sgt. Sager arrived a few minutes after he did, and told him that he had previous dealings with the applicant, that he knew the applicant and that he wanted to take the lead or be the person in charge. P.C. Ordinario testified that it was not really unusual for a sergeant to take the lead because, when there is a 911 emergency call, the sergeant is supposed to attend and take charge and that is why they are called supervisors.

38P.C. Ordinario testified that they knocked on the applicant’s door and the applicant answered. They asked if they could enter his apartment and the applicant allowed them inside. Sgt. Sager started speaking with the applicant and basically told him the reason why they were there, and provided the applicant with the name of a Manager with his employer who called indicating that the applicant had indicated by email that he wanted to jump of the tenth floor. P.C. Ordinario testified that Sgt. Sager and the applicant “went back and forth”, and during that time the applicant admitted to having thoughts about jumping off the tenth floor.

39P.C. Ordinario testified that Sgt. Sager was professional and very clear about the reason why they were in the applicant’s apartment. Sgt. Sager advised the applicant that they received information that he threatened to jump off the tenth floor and they were there as a result of that. P.C. Ordinario testified that he was looking at the applicant, and not Sgt. Sager, but Sgt. Sager sounded professional and was not raising his voice or behaving in any way that would suggest that he was either angry or happy. He testified that Sgt. Sager’s tone of voice was more neutral and he sounded calm.

40P.C. Ordinario testified that P.C. Jupp and Emergency Medical Services (“EMS”) then attended and, as a result of information they received from the applicant and his employer, they informed the applicant that he was going to be apprehended under the MHA, and that they had to take him to the hospital so he could see a doctor. He testified that the applicant did not want to go to the hospital and stated that he was okay and that there was no reason to go to the hospital.

41P.C. Ordinario testified that for a call like “threaten suicide” it is not unusual for EMS to attend in case the person needs medical attention, and that EMS assessed the applicant and determined they were not required. With respect to apprehensions under the MHA, P.C. Ordinario explained that if a person is apparently suffering from some type of mental disorder and has become a danger to themselves or others, as police officers, they have duty to apprehend the person under the MHA for their safety and so that they can take the person to the hospital to get medical attention.

42P.C. Ordinario testified that he advised the applicant that he would have to handcuff him to the rear, and the applicant advised that he wanted to get some clothing because of the weather. He testified that they allowed him to get some extra clothes, which he believed was a jacket and pants. After the applicant put his clothes on, P.C. Ordinario advised him that he would have to handcuff him to the rear, at which point the applicant advised him that he had a pre-existing shoulder injury. He testified that, in order to accommodate the applicant, he used two handcuffs instead of one. P.C. Ordinario explained that the standard is one handcuff for officer safety and to prevent self-harm. P.C. Ordinario also testified that the applicant wanted to write a letter or leave a note for his family members, so they allowed him to do that before handcuffing him.

43P.C. Ordinario testified that they then started walking out of the apartment, heading downstairs. The applicant mentioned to him that he had a pre-existing injury, so he told the applicant that he could accommodate him and they could walk slowly. P.C. Ordinario transported the applicant to the rear of his scout car, assisted him getting inside, and they went to the hospital at 10:56 a.m. P.C. Jupp followed them to the hospital but Sgt. Sager did not.

44On the way to the hospital, the applicant mentioned once or twice that the handcuffs were hurting him, and asked P.C. Ordinario if he could remove them. P.C. Ordinario testified that he told the applicant that he could not remove the handcuffs, that he tried to accommodate him as much as he could by using two handcuffs and that was all he could do at the time. Referring to his “Memobook” notes, P.C. Ordinario testified that the ride to the hospital was about 19 minutes.

45P.C. Ordinario testified that when they arrived at the hospital they went to the triage nurse to provide the applicant’s information. P.C.s Ordinario and Jupp then went to a room, which is like a “quiet room”, with applicant, where he could have more privacy and be by himself. He testified that the applicant was still complaining about the handcuffs so, with two officers present, he handcuffed the applicant to the front.

46P.C. Ordinario testified that, at approximately 1:10 p.m., a doctor spoke to the applicant and the applicant agreed to show the doctor the “letter” he sent to his employer. The applicant was able to retrieve his email on a hospital computer and both the doctor and P.C. Ordinario were able to read the email. P.C. Ordinario was referred to the applicant’s October 23, 2013 email which states, in part, that the only thing stopping him from jumping off his tenth floor balcony is that he does not wish to cause harm to children or anyone who may be in front of the building. P.C. Ordinario confirmed that it was the letter that he saw on the computer at the hospital. He testified that, after the doctor saw the email, he made a decision to admit the applicant under “Form 1” of the MHA, which is an involuntary admission. He testified that security officers took custody of the applicant and he and P.C. Jupp left the hospital.

P.C. Jupp

47P.C. Jupp testified that, on October 23, 2013, he responded to a radio call to attend the applicant’s address regarding a “threatening suicide”. He explained that calls are voiced over the radio and also come up on their computer in the car. P.C. Jupp testified that he learned that a complainant phoned in stating where he worked and that they got an email from the applicant who was threatening to jump off a balcony. He drove to the applicant’s address. When he got there, Sgt. Sager and P.C. Ordinario were already there, and paramedics were arriving on the scene. P.C. Jupp testified that it is a priority call when people phone in threatening to commit suicide, so one gets there quickly and assesses the situation.

48P.C. Jupp testified that Sgt. Sager had a conversation with the applicant in regards to the call they got, and the reason why they were there – that he was threatening suicide. He testified that Sgt. Sager said that they had received information that the applicant had sent an email to somebody at his employer, and that he had been having suicidal thoughts and threatened to jump off a balcony. P.C. Jupp testified that the applicant was sort of objecting to the reason why they were there, and could not really understand why they were there. The applicant was eventually advised by Sgt. Sager that he was going to be apprehended under the MHA and taken to a hospital.

49P.C. Jupp was referred to a note in his Memobook that Sgt. Sager had dealt with the applicant before. He testified that he received that information from Sgt. Sager. He believed that when they first responded to the radio call Sgt. Sager said that on the radio, and he advised P.C. Jupp again when he arrived at the applicant’s apartment. He testified that all he gathered at that point was that Sgt. Sager had dealings with the applicant previously, but he did not get into details about why or when.

50P.C. Jupp also referred to noting in his Memobook that the applicant admitted having thoughts of jumping off the balcony, and that the applicant was advised by Sgt. Sager regarding apprehension under the MHA. He testified that, after that, the applicant, who was sitting on a couch in pyjamas or track pants, was allowed to get up and get dressed with proper clothing. The applicant also asked about leaving a note for his wife about where he would be, and they allowed him to do that. The applicant then put shoes on and was handcuffed to the rear, which is the standard handcuffing technique they use, but they used two sets of handcuffs because the applicant stated he had a shoulder injury. After that, the applicant was taken from the apartment and placed in the back of P.C. Ordinario’s police car. Sgt. Sager left and P.C. Jupp followed P.C. Ordinario’s police car to the hospital.

51P.C. Jupp testified that Sgt. Sager’s demeanour really was not any different from any other call he had been with him on. He testified that Sgt. Sager is a supervisor and a lot of times he will take charge of a scene or incident. He also testified that Sgt. Sager’s tone of voice was normal for him, and he was not excited or angry, but just talking normally and explaining why they were there. He testified that Sgt. Sager speaks loud sometimes so people can hear what he is saying and understand him, but he did not notice any difference from any other time he had been on a call with him. P.C. Jupp testified that Sgt. Sager did not have an angry look on his face, but he was to the side of him and not really concentrating on his facial expressions.

52P.C. Jupp testified that, at the hospital, the applicant was registered at emergency and taken to a room with P.C.s Jupp and Ordinario to wait for a doctor. He testified that, while in the room, they moved the handcuffs from the applicant’s back to his front for comfort.

53P.C. Jupp testified that a doctor spoke with the applicant and became aware of an email. They located a hospital computer with internet access and the applicant gave the doctor access to an email that the doctor read. P.C. Jupp testified that he also saw the email and “skimmed” through it. He confirmed that the applicant’s October 23, 2013 email wherein he states in part that he considered ending his life is the email that was brought up at the hospital. He testified that, after the doctor read the email, he signed a Form 1 under the MHA to keep the applicant for an assessment. The applicant was turned over to hospital security and P.C.s Jupp and Ordinario left the hospital.

Sgt. Sager

54Sgt. Sager testified that he met the applicant once several years before October 23, 2013. He explained that the applicant filed a complaint against several TPS officers. At the time, Sgt. Sager was the UCC and investigated complaints against officers. He testified that he was involved in the investigation of the applicant’s previous complaint.

55Sgt. Sager testified that, on October 23, 2013, as a “road supervisor”, he responded to all serious calls, or any calls that could perhaps involve life-threatening events. He testified that he heard the radio call and looked at the call on the screen, which he typically does when he hears an emergency call. Sgt. Sager testified that it was a serious call, describing that a person was threatening to commit suicide by jumping off a tenth floor, so he made himself available and advised the dispatcher that he was going to head over to the location.

56Sgt. Sager explained further that, as a supervisor, most of the time he does not get dispatched like most other officers who get assigned a call. He explained that he assesses the calls, and he will ask dispatch to put him on a serious call or tell the dispatcher to dispatch him. Sgt. Sager also testified that it is typical for a sergeant to respond to a threaten suicide call. He testified that supervisors or sergeants respond to most calls where there is possible death, grievous bodily harm or hazards to their officers, because they have more experience and tools such as Tasers and cellphones. He testified that it is general protocol that calls where shots are fired, or where people are threatening to harm themselves or others, sergeants will go if available.

57Sgt. Sager testified that there were two other officers being dispatched to the scene and when he arrived P.C. Ordinario was waiting downstairs for either him or P.C. Jupp to arrive. Due to the exigent circumstances of the call, Sgt. Sager determined that, with P.C. Ordinario, they could go up and speak with the potentially suicidal individual and determine what they had.

58Sgt. Sager testified that they went upstairs and knocked on the applicant’s door. The applicant answered the door and Sgt. Sager introduced himself and P.C. Ordinario and advised the applicant why they were there. He testified that he does not know if the applicant saw his name on his uniform or heard him say his name, but the applicant appeared to be searching in his mind where he had heard his name before or where he recognized him from. Sgt. Sager told the applicant that he recognized his name as a person he had dealt with years earlier, although he did not actually recognize his face.

59Sgt. Sager asked the applicant if they could enter his apartment and talk to him and the applicant invited them in. The applicant sat down on a couch. Sgt. Sager advised the applicant that they were investigating a call from a complainant who had indicated that he received either an email or a letter from the applicant indicating that the applicant wanted to kill himself, that he was going to jump off the balcony and that the only thing stopping him was he did not want to land on anybody below and harm them. Sgt. Sager testified that the applicant indicated to him that he had been thinking about “that”, and that he thinks about that on a regular basis, but he also advised Sgt. Sager that he thought that most people think about harming themselves. Sgt. Sager testified that he indicated to the applicant that most people do not think about harming themselves. Sgt. Sager testified that the applicant also indicated to him that he would like to see a psychiatrist or psychologist, however, he had not had the chance yet. Sgt. Sager testified that, given the fact that the applicant advised him that he was thinking of jumping off the balcony, and that he did want to see a psychiatrist, he felt that the applicant would be apprehendable under the MHA, as he was concerned that the applicant was going to harm himself.

60Sgt. Sager testified that the applicant tried to convince him that he was okay, and would seek some medical help on his own time and terms. He testified that he advised the applicant and said, “Being that you have told me that you want to harm yourself, we are duty-bound to take you to the nearest psychiatric facility so that you can be put in touch with somebody, like a psychiatrist that will give you some help”. He testified that he told the applicant that he would be apprehended under the MHA. Sgt. Sager testified that the applicant continued to try to convince him that he was not going to go and he did not want to go the hospital. After allowing the applicant to “vent” a bit, Sgt. Sager told the applicant that he had no choice, and that he would be going with them.

61Sgt. Sager testified that the applicant wanted to write a letter to his wife and that, originally, he said that writing a letter was not necessary. The applicant said, “Well, I have a whiteboard. Can I leave her a message?” Sgt. Sager testified that he then said that would be fine.

62Sgt. Sager also testified that the applicant was wearing pyjamas and that he saw no harm in letting him get dressed, given that he was not violent or any risk to them. Sgt. Sager explained that the applicant told them where his clothes were, and one of the officers gave the applicant his clothes. They allowed him to put a jacket on, and then advised him that he was going to be handcuffed. They also told the applicant why he was being handcuffed, for his safety and theirs, because he did not want to be handcuffed. Sgt. Sager explained that they routinely handcuff behind the back, because handcuffing in front gives somebody a “weapon”. He testified that he did not know the predictability of the applicant’s behaviour or his frame of mind that day, and he was not going to give him a weapon.

63Sgt. Sager testified that the applicant explained to him that he had a pre-existing shoulder injury and he wanted to accommodate him the best way that they could, so they used two handcuffs and handcuffed him behind his back, which almost let his arms hang to his sides, so it was not really putting them towards the back. Sgt. Sager testified that the applicant then told him that he did not want to be seen going down the stairs into the lobby with the police and being handcuffed and he explained to the applicant that they had no choice. Sgt. Sager testified that he told the applicant, however, that they would put his jacket over his shoulders so that nobody would see the handcuffs, and they would try to make it as inconspicuous as possible. Sgt. Sager testified that the applicant finally agreed. They secured his apartment and the applicant was led to the elevator, taken down the stairs and walked out. He was placed in P.C. Ordinario’s scout car and that was basically Sgt. Sager’s involvement. He testified that he did not go to the hospital and he made himself available for the next call.

64Sgt. Sager testified that the applicant’s colour and the fact that he is African-Canadian were not factors in his decision to apprehend him under the MHA. He also testified that the fact that he knew the applicant and had some dealings with him before was not a factor in his decision to apprehend him under the MHA. Sgt. Sager also testified that he never saw or met the applicant’s Manager, and that he does not know his colour or race which is not listed in their call.

ANALYSIS AND DECISION

Relevant Code provisions

65Sections 1, 8 and 9 of the Code state as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of… race.

2. 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.

3. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Credibility

66To the extent that some of my findings, as set out below, turn on my assessment of the credibility of the parties, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at paras. 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

67I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7 at para. 26: the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence; and, observations as to the manner in which the witnesses gave their evidence.

Was the applicant subjected to discrimination on the basis of race, or reprisal, by the respondents?

68At the hearing, the applicant submitted that the respondents violated the Code on October 23, 2013, with respect to the area of goods services and facilities. Referring to harassment in employment, the applicant also submitted that he was not protected from harassment by a Manger with his employer. He submitted that his Manager made a public mischief call to the police, and that Sgt. Sager used a reprisal from his employer to exact revenge against him.

69The applicant submitted that, on October 23, 2013, he was at home working on his business, and that there was nothing wrong and no distress. He also submitted that the officers spoke about him before attending his apartment, which tells him that there was some collusion in how the matter was going to be handled. He submitted that, whenever he makes contact with the police to report any violation of his rights by members of his employer, it is a work-related matter, but all it took was one call of public mischief from his Manager and immediately it was a police matter. He submitted that he did not receive equal treatment under the law because he is a Black male.

Findings

70While the applicant alleges discrimination with respect to both the area of employment and the area of goods, services and facilities, this Application appears to relate to the area of services, as opposed to employment. In addition, while the applicant makes some references to earlier interactions with the TPS, I understand from the applicant that the allegations of Code violations in this Application concern only the events involving the named respondents on October 23, 2013. For the reasons that follow, I find that the applicant has not established, on a balance of probabilities, that he was subjected to any discrimination within the meaning of the Code by the respondents, during their encounter on October 23, 2013.

71I understand the applicant to be alleging that he was subjected to discrimination when he was apprehended under the MHA on October 23, 2013, and taken to a hospital against his will. The respondents provided the Tribunal with a copy of an “I/CAD” document that included the information that was provided to Sgt. Sager, and P.C.s Ordinario and Jupp, concerning the applicant on the morning of October 23, 2013, by TPS dispatch. The document refers to a “Threaten Sui”, and states, among other things, that the applicant advised his union by email or letter that he would jump off the tenth floor, and the only thing stopping him was that he did not want to chance landing on someone on the ground. It also states that the applicant was on long-term medical leave, that he has done this before and that he suffers from depression.

72Sgt. Sager testified that he heard the radio call and looked at the call on the screen. He testified that it was a serious call, describing that a person was threatening to commit suicide by jumping off a tenth floor. P.C. Ordinario testified that he received a radio call to attend the applicant’s residence regarding a threatened suicide, and that he received information that the applicant had sent an email with some indication about jumping off a balcony. He treated the information as an emergency and went straight to the applicant’s address. He did not know the applicant. P.C. Jupp also testified that he responded to a radio call to attend the applicant’s address regarding a “threatening suicide”, and that he learned that the applicant was threatening to jump off a balcony.

73Sgt. Sager testified that when he attended the applicant’s residence, he advised the applicant that they were investigating a call from a complainant who indicated that he received either an email or a letter from the applicant indicating that he wanted to kill himself, that he was going to jump off the balcony and that the only thing stopping him was he did not want to land on anybody below and harm them. Sgt. Sager testified that the applicant indicated to him that he had been thinking about “that”, and that he thinks about that on a regular basis. He also testified that the applicant indicated that he would like to see a psychiatrist or psychologist, however, he had not had the chance to do so. P.C. Ordinario testified that Sgt. Sager spoke to the applicant and the applicant admitted to having thoughts about jumping off the tenth floor. P.C. Jupp testified that he noted in his Memobook that the applicant admitted having thoughts of jumping off the balcony.

74Sgt. Sager testified that, given the fact that the applicant advised him that he was thinking of jumping off the balcony, and that he wanted to see a psychiatrist, he felt that the applicant would be apprehendable under the MHA, as he was concerned that the applicant was going to harm himself. The applicant, on the other hand, testified that he never shared with the respondents that he planned on hurting himself. He testified that the call his Manager made to the police was prejudiced and baseless, that there was no threat and that at no time was he considering committing suicide. In cross-examination, the applicant denied that he admitted to the officers that he considered killing himself.

75I note that P.C. Jupp testified that the applicant was sort of objecting to the reason why the officers were at his residence, and he could not really understand why they were there. Sgt. Sager also testified that the applicant tried to convince him that he was okay, that he did not want to go to the hospital, and that he would seek some medical help on his own time and terms. The applicant did not dispute Sgt. Sager’s evidence that he told Sgt. Sager that he would like to see a psychiatrist or psychologist, but had not had a chance to do so. I also understand the applicant’s evidence to be that he was attempting to secure an appointment with a psychiatrist at the time.

76It is clear from the evidence that the applicant sent an email to various people on October 23, 2013, including a representative of his union. In the email, the applicant stated, among other things, that he daily considered ending his own life, that the only thing stopping him from jumping off his tenth floor balcony was that he did not wish to cause harm to children or anyone who may be in front of the building, and that there is nothing normal about wishing to end one’s life.

77Having carefully considered all of the evidence, I prefer the evidence of the three officers, which was consistent, that the applicant essentially admitted to having thoughts of jumping off his balcony when they attended his residence. I also accept Sgt. Sager’s uncontradicted evidence that the applicant indicated that he would like to see a psychiatrist. In these circumstances, and considering the information that was communicated to the officers by TPS dispatch as shown by the “I/CAD” document referred to above, I find that the applicant has not established that he was subjected to discrimination on the basis of race as alleged, or any discrimination within the meaning of the Code, when he was apprehended under the MHA on October 23, 2013. While it is not within the Tribunal’s jurisdiction to determine if the respondents’ apprehension of the applicant under the MHA was correct, I find that, for the purposes of the Code, the respondents had legitimate non-discriminatory reasons for doing so, based on the information they had at the time.

78I note that the applicant essentially testified, and submitted, that the respondents did not consider, or further investigate, that he was at home working on his business, that he had a new life insurance policy with a lower value and a “suicide exclusion”, and that he had plans for the following Friday as indicated by a note about needing a car on a whiteboard. Having considered the evidence and the applicant’s submissions, in my view, the applicant has simply not established how information concerning these matters could have led the respondents to a different decision about apprehending him under the MHA, in light of the information that I have found the respondents had before them at the time, as referred to in the above paragraph. I also find that the applicant has not established how not considering, or further investigating, these matters could amount discrimination under the Code in the circumstances.

79To the extent that the applicant may be alleging that he was subjected to discrimination by being handcuffed by the respondents on October 23, 2013, I find, based on the evidence before me, that the applicant has not established that he was subjected to any discrimination in relation to being handcuffed.

80P.C. Ordinario testified that it is standard to handcuff with one handcuff for officer safety and to prevent self-harm, but that, in order to accommodate the applicant’s pre-existing shoulder injury, he used two handcuffs instead of one. P.C. Ordinario also explained that the applicant was handcuffed for his safety. He testified that if a person has threatened to jump off a balcony, or hurt themselves, handcuffs prevent them from hurting themselves. He also explained that a second reason is officer safety. He testified that if a person is looking to harm themselves, or threatening to jump off a balcony, they may “turn” on an officer. He also testified that when they apprehend somebody under the MHA, the TPS rules and procedure are to handcuff the person to the rear.

81P.C. Jupp testified that the applicant was handcuffed to the rear, which is the standard handcuffing technique they use, but they used two sets of handcuffs because the applicant stated he had a shoulder injury. Sgt. Sager testified that he advised the applicant that, for his safety and theirs, he would be handcuffed. He explained that they routinely handcuff behind the back, because handcuffing in front gives somebody a “weapon”. He also testified that they used two handcuffs to accommodate the applicant’s shoulder the best way they could. Sgt. Sager also testified, which was not disputed, that he told the applicant that they would put his jacket over his shoulders so that nobody would see the handcuffs, and they would try to make it as inconspicuous as possible, when the applicant told him that he did not want to be seen going down the stairs into the lobby with the police and being handcuffed, and the applicant agreed.

82In the circumstances, I am also satisfied that the respondents have provided a reasonable non-discriminatory explanation for handcuffing the applicant when he was apprehended on October 23, 2013.

Reprisal

83I also understand the applicant to be alleging that Sgt. Sager used the call that his employer made to the police to exact revenge, or reprise against him, as a result of an interaction the applicant and Sgt. Sager had several years earlier when the applicant complained about some TPS officers.

84In Noble v. York University, 2010 HRTO 878, the Tribunal described the requisite elements of reprisal within the meaning of the Code as follows:

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.

85While there does not appear to be any dispute that the applicant’s previous interaction with Sgt. Sager, some years earlier, was in the context of the applicant raising rights under the Code, I find that the applicant has not established that he was subjected to any reprisal within the meaning of the Code by the respondents on October 23, 2013.

86The applicant testified that the call his employer made to the police was mishandled by them, and he believed that it was mishandled, in part, because of his history with Sgt. Sager. He also testified that Sgt. Sager showing up at his apartment was no accident, and that he believes Sgt. Sager showed up as some form of vendetta.

87Having considered the evidence, I do not find that there was anything irregular or unusual about Sgt. Sager responding to the call to attend the applicant’s residence, or taking the lead upon arrival. I find that the applicant’s assertion that Sgt. Sager showed up at his apartment as some form of vendetta is a bald assertion that is entirely speculative, and I prefer the officers’ evidence. In particuar, Sgt. Sager testified that, as a supervisor, he responds to all serious calls, or any calls that could perhaps involve life-threatening events. He testified that he heard the radio call, looked at the call on the screen, and that it was a serious call, so he made himself available. He also testified that it is typical for a sergeant to respond to a threaten suicide call, and that it is general protocol that sergeants will go, if available, to calls where people are threatening to harm themselves or others. P.C. Ordinario testified that it was not really unusual for a sergeant to take the lead because, when there is a 911 emergency call, the sergeant is supposed to attend and take charge. P.C. Jupp testified that Sgt. Sager is a supervisor and a lot of times he will take charge of a scene or incident.

88The applicant also testified that, on October 23, 2013, Sgt. Sager was extremely hostile, condescending and did not listen to him and dismissed everything that he said. He testified that Sgt. Sager was very red-faced.

89P.C. Ordinario, on the other hand, testified that Sgt. Sager was professional and very clear about the reason why they were in the applicant’s apartment. He testified that he was not looking at Sgt. Sager, but he sounded professional and was not raising his voice or behaving in any way that would suggest that he was either angry or happy. He testified that Sgt. Sager’s tone of voice was more neutral and he sounded calm. P.C. Jupp testified that Sgt. Sager’s demeanour really was not any different from any other call he had been with him on. He also testified that Sgt. Sager’s tone of voice was normal for him, and he was not excited or angry, but just talking normally and explaining why they were there. He testified that Sgt. Sager speaks loud sometimes so people can hear what he is saying and understand him, but he did not notice any difference from any other time he had been on a call with him. P.C. Jupp testified that Sgt. Sager did not have an angry look on his face, but he was to the side of him and not really concentrating on his facial expressions.

90In the circumstances, I prefer the evidence of P.C.s Ordinario and Jupp concerning Sgt. Sager’s demeanour, which was consistent and which they both described with some detail, and I do not accept the applicant’s evidence that Sgt. Sager was extremely hostile to him on October 23, 2013. While there is no dispute that Sgt. Sager knew the applicant from having previously dealt with him, I find that the evidence does not establish that Sgt. Sager took any action against, or made any threat to, the applicant on October 23, 2013, in relation to the applicant having previously claimed or attempted to enforce a right under the Code.

91I have already found, as set out above, that the applicant has not established that the respondents’ actions towards him on October 23, 2013, were discriminatory. In particular, I have found that the respondents had legitimate non-discriminatory reasons for apprehending the applicant under the MHA, based on the information they had at the time, and that they also provided a reasonable non-discriminatory explanation for handcuffing the applicant when he was apprehended. I also found that the applicant had not established how the respondents not considering, or further investigating, various matters when they attended his residence could amount discrimination under the Code in the circumstances. Considering all of the evidence, I also find that the applicant has not established that any actions or behaviour of the respondents on October 23, 2013, were intended as retaliation for the applicant having raised rights under the Code several years earlier.

Conclusion

92Having considered all of the evidence, I find that the applicant has not established that the respondents subjected him to any discrimination, harassment or reprisal, contrary to the Code, on October 23, 2013.

93The Application is dismissed.