Perepelytsya v. Ontario Provincial Police, 2015 HRTO 805

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maksym Perepelytsya

Applicant

-and-

Ontario Provincial Police, Mazerolle & Lemay Law Firm,

Engel and Associates Professional Corporation,

Gravel Charest Fisher Law Firm and Legal Aid Ontario

Respondents

DECISION

Adjudicator: Mark Hart

Date: June 17, 2015

Citation: 2015 HRTO 805

Indexed as: Perepelytsya v. Ontario Provincial Police

APPEARANCES

Maksym Perepelytsya, Applicant

Self-represented

Ontario Provincial Police, Respondent

Amal Chaudry, Counsel

Mazerolle & Lemay Law Firm, Respondent

Denis Cadieux, Counsel

Engel and Associates Professional Corporation, Respondent

Bruce Engel, Counsel

Gravel Charest Fisher Law Firm, Respondent

Allan O’Brien, Counsel

Legal Aid Ontario, Respondent

Andrea Danon and Carolyn Padgett, Counsel

1This is an Application filed on July 22, 2014 and completed on September 30, 2014 alleging discrimination with respect to services because of place of origin, family status, marital status, age and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction dated October 17, 2014, the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether this Application should be dismissed, in whole or in part, for one or more of the following reasons: on the basis that the allegations against some of the respondents are not covered by the Code; on the basis of prosecutorial immunity; on the basis of untimeliness; and/or on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3With regard to the issue of whether the Application has a reasonable prospect of success, the Tribunal referenced Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure, which read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

4Details 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.

5The Tribunal also noted that it does not have the general power to deal with allegations of unfairness. It also does not have power over general allegations of harassment that are unconnected to one of the grounds protected under the Code. To succeed in an Application, an applicant must be able to prove discrimination or harassment on the basis of a Code ground on a balance of probabilities. It is not sufficient for an applicant to claim that they are identified by a certain Code ground and that a respondent undertook certain actions toward them. To show discrimination, an applicant must be able to prove a link between a respondent’s alleged actions and a Code ground.

6The summary hearing was held by teleconference on February 12, 2015 and I heard oral submissions from all parties. I also have considered the voluminous materials that were submitted by the applicant for the purpose of the summary hearing.

7I will address the issues as they relate to each of the named respondents. In this regard, I note that the applicant originally had named the Crown Law Office in L’Original, Ontario as a respondent to the Application, but withdrew his allegations against this respondent prior to the teleconference hearing. As a result, I do not need to address the issue of prosecutorial immunity in this Decision.

ALLEGATIONS AGAINST ONTARIO PROVINCIAL POLICE

8The Application raises various issues as against the Ontario Provincial Police (“OPP”) dating back to August 2011 when the applicant was first arrested and charged with assault, uttering threats and harassment. The applicant was ultimately found not guilty of these charges in December 2012. In May and June 2012, the applicant alleges that various OPP officers showed up at his son’s school looking for the applicant and thereafter arrested the applicant for breach of his bail conditions. These charges were withdrawn in December 2012. The Application alleges that in January 2013 various OPP officers showed up at the home of the applicant’s ex-spouse while the applicant and his son were there, and that the applicant was being followed and watched by various OPP officers at various times in January, March and June 2013. The Application alleges that on August 30, 2013, two OPP officers attended at the applicant’s residence and entered his home without permission. The applicant states that this scared him and caused him to leave the Ottawa area with his son in early September 2013 and travel through New Brunswick to Nova Scotia, where the applicant was arrested on child abduction charges. The applicant was ultimately acquitted of these charges in January 2015.

9The issue here arises from this Tribunal’s limited jurisdiction under the Code. As previously indicated, this Tribunal does not have the power to deal with any and all allegations of wrongful conduct. Rather, this Tribunal’s only jurisdiction is in relation to alleged discrimination because of a protected ground under the Code. The onus is on the applicant at the summary hearing stage to be able to explain the basis upon which he is making a connection between the alleged OPP conduct and one of the grounds that he is relying upon and to point to some evidence that he would bring forward at a full hearing to support any such connection.

10Before me, the applicant clarified that his allegations as against the OPP relate to the grounds of marital status, family status and reprisal. With regard to the allegation of discrimination and harassment by the OPP because of marital status, as I understand it, the applicant’s allegation is that the various things that he alleges were done to him by the OPP were done because his ex-spouse for some period of time following their separation was involved in a relationship with a man whose father is a retired OPP officer. Besides the fact that the applicant could point to no real evidence to support this theory beyond mere speculation, this theory, even if true, does not engage the ground of “marital status” under the Code, which is defined to mean the status of being in certain kinds of relationships and has been interpreted to extend to the particular identity of a person’s spouse, but has not been interpreted to extend to the identity of the father of an ex-spouse’s boyfriend.

11With regard to the alleged ground of family status, the most the applicant could say was that he believes that the OPP was giving him a hard time and this was affecting his relationship with his son. Under the Code, an applicant is required to establish that the alleged discriminatory or harassing conduct was “because of” a protected ground. It is not sufficient to allege, as the applicant appears to be doing, that the alleged conduct affected or had an impact on his family. As a result, the applicant has put forward no basis to support an allegation of discrimination or harassment by the OPP because of his family status.

12With regard to the allegation of reprisal, the applicant alleges that he sought to claim and enforce his rights under the Code on January 14, 2013, when he alleges that he told two OPP officers who showed up at his door that they were harassing him. As this is the first occasion on which the applicant alleges that he sought to claim and enforce his Code rights in relation to the OPP, all alleged conduct that dates from prior to January 14, 2013 cannot be regarded as reprisal under the Code.

13With regard to events which occurred after January 14, 2013, the applicant has failed to point to evidence that he would be able to present at a hearing that would establish any link between the alleged conduct of various OPP officers and an intention to engage in reprisal against him for having asserted his Code rights. As was explained to the applicant, the reprisal provision in the Code has a very specific meaning. In order to make out a claim of reprisal under the Code, the applicant must be able to show that the respondents’ behaviour was carried out with an intention to reprise against him for claiming a right under the Code: see for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273.

14Accordingly, I find that the allegations raised in the Application as against the OPP have no reasonable prospect of success and they are dismissed on that basis. As a result, it is not necessary for me to address the applicant’s delay in raising these allegations.

ALLEGATIONS AS AGAINST MAZEROLLE & LEMAY LAW FIRM

15As against Mazerolle & Lemay Law Firm, these allegations appear to center on two specific lawyers at this firm: Mr. C. who was retained to represent the applicant in the criminal proceedings against him; and Mr. T. who was retained for a period of time in relation to certain family law proceedings. The allegations as I understand them generally seem to be directed towards alleged deficiencies in the work performed by these two lawyers and a dispute over the charges for their services.

16Mr. T. last provided legal services to the applicant in late 2011, and Mr. C. last provided legal services to the applicant in late 2012. After the applicant failed to pay his outstanding invoices for work performed by this law firm, a Small Claims Court action was commenced by the law firm against the applicant to collect on its outstanding invoices. The applicant alleges that, at a settlement conference held on May 14, 2013 in the context of the Small Claims Court action, Mr. C. made a derogatory comment about the applicant’s Ukrainian origin.

17When asked how the applicant was relating his allegations about deficiencies in the work performed for him or amounts charged by this law firm to any ground protected under the Code, the applicant stated that he is relating this to his marital status and specifically to his relationship with his ex-spouse. The applicant speculated that his ex-spouse may have some connection to Mr. C. although he candidly acknowledged that he cannot prove this. This is mere speculation which does not provide a sufficient basis to establish that the applicant has any reasonable prospect of success in establishing this claim, and these allegations are dismissed on that basis.

18With regard to the comment alleged to have been made by Mr. C., there is no doubt that this alleged comment is related to the applicant’s place of origin. However, I note that at this time, Mr. C. was no longer providing any services to the applicant and the comment is alleged to have been made in the context of a civil action commenced by the law firm against the applicant in which the law firm and the applicant were opposing parties. In my view, in these specific circumstances, this allegation does not fall within this Tribunal’s jurisdiction as being “with respect to services” within the meaning of s. 1 of the Code. Accordingly, this allegation is dismissed as not being within this Tribunal’s jurisdiction.

19I also note that the allegations against this law firm all relate to alleged events that occurred more than one year prior to the filing of the Application. As a result, the applicant is required to establish that the delay in filing the Application was incurred in good faith, which requires some reasonable explanation for the delay. The applicant submits that he did not commence this Application until he had moved away from the Renfrew area, as he was frightened by the repercussions that might be visited upon him by the OPP if he commenced a legal proceeding at an earlier time. This does not explain why he was unable to commence an application against the Mazerolle & Lemay Law Firm within the one year period. Accordingly, these allegations also are dismissed for delay.

ALLEGATIONS AS AGAINST ENGEL AND ASSOCIATES PROFESSIONAL CORPORATION

20As against Engel and Associates Professional Corporation, Mr. E. was retained briefly by the applicant following his arrest in Nova Scotia in early September 2013. The primary basis upon which the applicant appears to have filed this Application against this law firm appears to arise from Mr. E.’s failure to appear for a bail hearing. When asked how he related this allegation to any ground protected under the Code, the applicant stated that he believed this was related to his “marital status” on the same basis as his allegations against the OPP. Once again, this is mere speculation unsupported by any evidence that would establish any connection between the applicant’s ex-spouse, the OPP or most importantly Mr. E. I find that this allegation against Engel and Associates Professional Corporation has no reasonable prospect of success and it is therefore dismissed.

ALLEGATIONS AS AGAINST GRAVEL CHAREST FISHER LAW FIRM

21As it relates to the Gravel Charest Fisher Law Firm, I note that Mr. F., a lawyer with that firm, was representing the applicant’s ex-spouse for a period of time as an opposing party in the family law proceedings. This Tribunal has held that the relationship between a lawyer and an opposing party is not a “service” within the meaning of the Code and is not covered by the Code: see for example Belso v. York Region Police, 2009 HRTO 757; Cooper v. Pinkofskys, 2008 HRTO 390. As a result, the applicant’s claims against this law firm are not within this Tribunal’s jurisdiction.

22The applicant alleges that certain facts were misrepresented by Mr. F. in family court. The applicant takes the position that, due to the fact that he had no counsel in the family law proceedings and could not attend these proceedings because he was incarcerated, Mr. F. was representing both parties before the court. While there is no doubt that a lawyer has certain obligations not to make misrepresentations to the court under the Rules of Professional Conduct, there is no support in law for the proposition that Mr. F. was “representing” the applicant in any way during the family law proceedings. As a result, the applicant’s inability to attend family court and his lack of legal counsel do not serve to establish that Mr. F. was providing any “service” to him.

ALLEGATIONS AS AGAINST LEGAL AID ONTARIO

23As against Legal Aid Ontario (“LAO”), the applicant made applications for legal aid funding for his criminal proceeding and his family law proceeding. Coverage for the criminal proceeding was granted by LAO, but denied for the family law proceeding on the basis that the applicant did not meet the criteria for eligibility. This decision was upheld by LAO on appeal.

24When asked how he related this to any ground protected under the Code, the applicant alleged that he believed that this was somehow connected to his marital status, but he candidly acknowledged that he did not know how and could not prove it. Once again, this is mere speculation which does not provide a sufficient basis to establish that the applicant has any reasonable prospect of success in proving that his rights under the Code were violated by LAO. Accordingly, this allegation is dismissed on that basis.

ORDER

25For all of the foregoing reasons, the Application is dismissed in its entirety as against all respondents.