HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cesare Pella
Applicant
-and-
The Regional Municipality of Peel Police Services Board and William Osler Health Systems
Respondents
DECISION
Adjudicator: Geneviève Debané
Indexed as: Pella v. The Regional Municipality of Peel Police Services Board
APPEARANCES
Cesare Pella, Applicant
Jeremy A. Richler, Counsel
The Regional Municipality of Peel Police Services Board, Respondent
Patricia G. Murray, Counsel
William Osler Health Systems, Respondent
Melanie de Wit, Counsel
Dr. Ijaz Ahmed Chaudhry, Proposed Intervenor
Andrew McCutcheon, Counsel
Introduction
1This Application alleges discrimination with respect to services because of ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Both of the respondents The Regional Municipality of Peel Police Services Board (“Peel Police”) and William Osler Health Systems (“William Osler”) filed Responses denying any breach of the Code. Dr. Ijaz Ahmed Chaudhry, a doctor at William Osler has filed a Request to intervene in the matter.
2On August 20, 2014 the Tribunal issued a Case Assessment Direction which directed that a summary hearing would be held to determine whether the Application should be dismissed on the basis that it had no reasonable prospect of success.
3All of the parties were present at the summary hearing which was held on January 14, 2015. Since the applicant had only recently retained counsel to represent him I permitted both counsel and the applicant to make oral submissions to the Tribunal. Subsequent to the summary hearing the applicant filed unsolicited post-hearing submissions on February 9, 2015 which was copied to all parties and his own counsel. On February 10, 2015, counsel for Peel Police wrote to the Tribunal to advise that it considers the applicant’s post-hearing submissions to be improper and therefore those should not be considered.
The applicant’s allegations
4The following is a summary of the applicant’s allegations as detailed in his Application and Reply. The allegations giving rise to this Application occurred on the evening and night of August 29, 2012 when the applicant was returning home from a trip to Thunder Bay and had to change flights at Toronto Pearson airport. The flight from Thunder Bay landed at Pearson at 16:15 and the applicant’s connecting flight was scheduled to depart at 18:25. The applicant had been ill for a few days before leaving Thunder Bay due to what he refers to as a severe bout of food poisoning and possible botulism. In support of his Application the applicant attached a medical letter dated October 20, 2012 from a doctor which states that he saw the applicant on August 21 and 23, 2012 for symptoms of “acute viral gastro-enteritis or possibly botulism”. This note also states that the symptoms can persist up to seven days and that “no medical treatment is required unless the symptoms are severe”.
5The applicant explained that when he landed at Pearson that he felt exhausted and nauseous. The applicant decided to sit down and do some relaxation breathing exercises and closed his eyes. Sometime later he opened his eyes to check what time it was and to his dismay it was already passed 21:30 p.m. His connecting flight had departed over three hours before without him.
6Eventually, the applicant got up to walk to the counter because he was having difficulty engaging in mental processes and speaking. He was approached by first a male employee and then a female employee of the airline he was travelling on and they engaged what he describes as a “rather quirky, but cordial and humorous conversation”. In his Reply the applicant clarified that he did answer when asked where he had come “from up north where Santa Claus’ reindeer roam free.” He also told these employees that Santa Claus would soon have to relocate because of the Prime Minister’s environmental policies with respect to climate change. He then commented further with respect to the Prime Minister’s political plans and that the employees’ had increasingly puzzled looks, because the airline does not train their staff with respect to “reasoned political arguments”.
7Two constables from Peel Police attended, presumably having been called by one of the employees of the airline. The two constables proceeded to question the applicant about his condition including asking him whether he had drunk anything and whether he was diabetic. The applicant denied having drunk anything and told the police officers that he had been sick. When the applicant “gently patted” the constables’ arm to get his attention he was arrested for assaulting a police officer and for public intoxication. He was brought to a detention centre at the airport.
8A few hours later the applicant was brought to William Osler, a hospital. He was first assessed by a nurse who asked him questions about his health, in the presence of one of the police officers. and some of his answers seemed to “throw her off”. Pursuant to a Mental Health Act Form 1, the applicant then underwent an involuntary psychiatric assessment conducted by Dr. Choudhry.
9The next day the applicant was reassessed by another psychiatrist and he was permitted to leave the hospital with his spouse. Ultimately, all charges against the applicant were withdrawn by the Crown.
Summary hearing
10Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
11It is trite law that the Tribunal does not have the power to deal with allegations of unfairness that are unrelated to the Code. It is not the role of this Tribunal to second guess the actions of police officers and doctors in the discharge of their duties. It is the role of the Tribunal to determine on an objective standard whether or not the conduct of these individuals was contrary to the Code, including that these were based on discriminatory stereotypes or prejudices. Often in carrying out their functions police officers and doctors may ask any number of questions, including eliciting information about protected Code grounds such as, for example, age and disability.
12I have reviewed the applicant’s allegations in both the Application and the Reply with respect to the unfortunate set of circumstances surrounding what occurred at Toronto Pearson airport. In this case, based on the applicant’s own proposed evidence the Police officers were trying to determine whether the applicant had a medical condition which explained the facts that he had missed his flight by over three hours, by his own admission had difficulty speaking and thinking and appeared to be making conversation that was not topical. The officers came to the conclusion that he was intoxicated and he was arrested. There is no evidence that the applicant can point to that could establish that this decision was based on any prejudicial and/or discriminatory stereotype, instead of based on the applicant’s own conduct.
13Similarly, based on the conduct that the applicant was exhibiting at the hospital Dr. Chaudhry decided that he should be admitted. There is no evidence to support that this determination was based on any prejudices and/or discriminatory stereotypes.
14Having considered this matter I find that the Application should be dismissed on the basis that it has no reasonable prospect of success. As such, I need not consider Dr. Chaudhry’s Request to intervene.
Order
15The Application is dismissed
Dated at Toronto, this 1st day of June, 2015.
“signed by”
Geneviève Debané
Vice-chair