Gebremariam v. Toronto Police Services, 2016 HRTO 1486

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tadessa Gebremariam Applicant

-and-

Toronto Police Services Respondent

A N D B E T W E E N

Tadessa Gebremariam Applicant

-and-

Toronto Police Services Respondent

A N D B E T W E E N

Tadessa Gebremariam Applicant

-and-

Toronto Police Services Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: November 23, 2016 Citation: 2016 HRTO 1486 Indexed as: Gebremariam v. Toronto Police Services

WRITTEN SUBMISSIONS

Tadessa Gebremariam, Applicant Self-represented

1These are Applications, filed pursuant to s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents discriminated against the applicant because of race, colour and ethnic origin with respect to services.

2The Application assigned File #25604 names as respondents the Toronto Police Services and Justice Myers, a judge who dismissed a court action filed by the applicant. The Application assigned File #25605 names as respondents the Toronto Police Services and Carole Jenkins, a lawyer representing defendants in the action that was dismissed. The Application assigned File #25606 names as respondents the Toronto Police Services and Justice Dunphy, a judge who dismissed an action by a party represented by the applicant.

judicial immunity

File #25604

3In answer to the question, “What happened?” on the Application form against the Toronto Police Services and Justice Myers (File #25604), the applicant wrote, “The court order provided by Mr. Justice Myers on December 3, 2014 was biased against the Rules and civil procedure and based on Fraud [sic] documents.” In answer to the direction on the Application form to explain why the applicant believes he was discriminated against because of his race, colour and ethnic origin, the applicant wrote, “It is pure discrimination when a judge provides a court order against the law.”

4On September 27, 2016, the Tribunal sent the applicant a Notice of Intent to Dismiss (“NOID”) the Application on the basis that the Application appeared to be outside of the Tribunal’s jurisdiction because Justice Myers was protected by the doctrine of judicial or adjudicative immunity. The NOID cited cases which were dismissed in similar circumstances.

5On October 24, 2016, the applicant filed a letter dated October 7, 2016 in response to the NOID. In it, he argued that his allegations against Justice Myers should not be dismissed because Justice Myers issued the court order in the context of criminal matters, not in civil matters which the applicant argued were the contexts for the cases the NOID cited. He also argued that even a judge is responsible for committing or practising crimes.

6The Tribunal will dismiss an Application at a preliminary stage, without the opportunity for oral submissions, only if it is “plain and obvious” that it is outside of the Tribunal’s jurisdiction.

7It is not the role of the Tribunal to determine appeals of decisions made by courts or adjudicative bodies. The Tribunal has found that it does not have jurisdiction to hear applications with respect to tribunals or courts in the exercise of their judicial functions or decision making based on the doctrine of judicial immunity. See Cartier v. Nairn, 2009 HRTO 2208; Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180.

8From a review of the Application, it appears that the applicant’s allegation against Justice Myers pertains only to his order made as a judge of the Superior Court of Justice. The order dismissed an action by the applicant in which the applicant was both a plaintiff, self-representing, as well as an agent for Meraff Tadesse, another plaintiff. The order also conditionally dismissed the action by Meraff Tadesse unless he was to demonstrate that he is under a disability. The conduct the applicant is complaining about, Justice Myers dismissing the applicant’s action, is clearly judicial activity contemplated by the doctrine of judicial immunity. In my view, it is plain and obvious that the Application must therefore be dismissed against Justice Myers.

File #25606

9In answer to the question, “What happened?” on the Application against the Toronto Police Services and Justice Dunphy (File #25606), the applicant wrote, “The court order was biased against the Law.” In answer to the direction to explain why the applicant believes he was discriminated against because of his race, colour and ethnic origin, the applicant wrote, “It is discrimination when a judge provides [a] court order against the law.”

10Attached to the Application was a February 12, 2016 letter to the applicant from counsel for the parties opposing the applicant and Meraff Tadesse, Carole Jenkins. On the basis of that letter, it would appear that the court order referenced in the Application is an order made by Justice Dunphy on February 12, 2016 which granted a motion by the Catholic Children’s Aid Society and others to strike a claim made by Meraff Tadesse because he failed to provide evidence to demonstrate that he was under a disability. Ms. Jenkins, made reference in her letter to an enclosed endorsement by Justice Dunphy, but no endorsement was filed with the Tribunal by the applicant.

11On September 27, 2016, the Tribunal sent the applicant a Notice of Intent to Dismiss (“NOID”) the Application on the basis that the Application appeared to be outside of the Tribunal’s jurisdiction because Justice Dunphy was protected by the doctrine of judicial or adjudicative immunity. The NOID cited cases which were dismissed in similar circumstances.

12On October 20, 2016, the applicant filed a letter dated October 7, 2016 in response to the NOID. In it, he argued that his allegations against Justice Dunphy should not be dismissed because he issued the court order in the context of criminal matters, not in civil matters which the applicant argued were the contexts for the cases the NOID cited. He also argued that even a judge is responsible for his or her actions.

13As stated above, the Tribunal will dismiss an Application at a preliminary stage, without the opportunity for oral submissions, only if it is “plain and obvious” that it is outside of the Tribunal’s jurisdiction.

14Also as stated above, it is not the role of the Tribunal to determine appeals of decisions made by courts or adjudicative bodies. The Tribunal has found that it does not have jurisdiction to hear applications with respect to courts or tribunals in the exercise of their judicial functions or decision-making based on the doctrine of judicial immunity. See Cartier v. Nairn, 2009 HRTO 2208; Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180.

15From a review of the Application, it appears that the applicant’s allegation against Justice Dunphy pertains only to the dismissal of the remaining action of Meraff Tadesse for whom the applicant was an agent. The conduct the applicant is complaining about, Justice Dunphy making the order to dismiss the action, is clearly judicial activity contemplated by the doctrine of judicial immunity. In my view, it is plain and obvious that the Application must therefore be dismissed against Justice Dunphy.

Counsel for opposing party in litigation

File #25605

16In answer to the question, “What happened?” on the Application against the Toronto Police Services and Carole Jenkins (File #25605), the applicant wrote, “The lawyer Carole Jenkins filed fraud documents against the Law and get [sic] a biased court order against the Law.” In answer to the direction to explain why the applicant believes he was discriminated against because of his race, colour and ethnic origin, the applicant wrote, “It is discrimination when a judge provides biased court order against the law, etc.” This answer does not implicate Ms. Jenkins, and is almost identical to the comment the applicant provided in the Applications against Justices Myers and Dunphy.

17On September 27, 2016, the Tribunal sent the applicant a Notice of Intent to Dismiss (“NOID”) the Application on the basis that the Application appeared to be outside of the Tribunal’s jurisdiction because the issues raised relate to the conduct of a lawyer representing a party in another legal proceeding. The NOID cited cases which were dismissed in similar circumstances. In a letter from the applicant dated October 7, 2016, the applicant referenced the NOID, but his letter cannot be characterized as responding to the issue raised in it.

18Section 1 of the Code prohibits discrimination in services, goods and facilities on certain prohibited grounds including creed. In order to proceed with his Application against Ms. Jenkins, the applicant must demonstrate that she is in a services relationship with her.

19In other cases addressing the relationship between a lawyer and an opposing party, the Tribunal has held that the relationship does not fall within the ambit of services covered by the Code (See: Cooper v. Pinkofskys, 2008 HRTO 390; Belso v. York Region Police, 2009 HRTO 757). In Cooper (where a witness for the Crown alleged that defence counsel discriminated against him in respect of services), the Tribunal provided the following rationale for its conclusion at para 11:

Applying the above principles to this Application, unlike the situation in Hogan and Braithwaite, the cases cited by the applicant in support of his argument, defence counsel is neither providing services to a larger public of which the applicant is a member nor is there a direct service relationship between defence counsel and a Crown witness. Rather, the role of defence counsel at a criminal trial puts that counsel into an adversarial position with all prosecution witnesses called by the Crown in order to secure a conviction of that counsel’s client. Even applying a large, liberal and purposive interpretation of the Code, it cannot be said that defence counsel is providing services to or is in a service relationship with an adverse witness, given the duty of that counsel to fully and fearlessly advance the interests of his client. In no way are the “services” provided by the defence counsel of benefit or of assistance to the prosecution witness. (See also: Crawford v. 2176534 Ontario, 2009 HRTO 1028)

20In my view, these principles apply in this case. I find that the Tribunal has no jurisdiction over the allegation against Ms. Jenkins, whose only relationship with the applicant was one of opposing counsel in the context of litigation. I find that in providing legal representation to the defendants in the applicant’s court actions, and in allegedly filing certain documents with the court, Ms. Jenkins was not in a service relationship with the applicant, and therefore the allegations against her do not fall within the jurisdiction of the Code. I note that it appears that the doctrine of absolute privilege would attach to the allegations against Ms. Jenkins, but given that the Tribunal provided no notice to the applicant of a consideration of absolute privilege, I do not base my decision to dismiss the allegations against Ms. Jenkins on that basis. The Application filed against Ms. Jenkins is dismissed because she was not in a services relationship with the applicant.

summary of orders

21These Applications are dismissed as against Justice Myers, Carole Jenkins and Justice Dunphy. Their names will be removed from the style of cause.

next steps

22The Tribunal will deliver this Interim Decision to the parties and to the respondents who have been removed, Justice Myers, Carole Jenkins and Justice Dunphy. There is no need for the Tribunal or the remaining parties to include these three respondents in these proceedings by delivering documents to them unless they seek status as intervenors.

23The Tribunal notes that the applicant, while naming the Toronto Police Services as a respondent in each of these Applications, does not appear to describe actions that might constitute breaches of the Code. The Tribunal may need to address whether the these Applications, as far as they concern the remaining respondent, may be outside the Tribunal’s jurisdiction because they fail to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the Toronto Police Services.

24Within 21 days, the applicant must therefore file submissions of no more than 500 words for each Application, pointing to what in these three Applications describes the allegedly discriminatory behaviour of the Toronto Police Services.

25The Tribunal must ensure that documents from each of these three files have been delivered to the Toronto Police Services, but the Toronto Police Services does not need to file any Response to these three Applications at this stage in the proceedings.

26The parties must be prepared to address the above issue of no apparent description of allegedly discriminatory actions or events concerning the Toronto Police Services at the preliminary hearing that is being scheduled as described in the Case Assessment Direction of October 12, 2016 which references File Nos. 2016-25604-I to 2016-25608-I, as well as File Nos. 2016-24592-I, 2016-2508-I; 2016-25169-I to 2016-25172-I, and 2016-25416-I. The Tribunal shall also attach to this Interim Decision the Tribunal’s Case Assessment Direction of September 12, 2016 pertaining to File Nos. 2016-24592-I; 2016-25080-I; 2016-25169-I; 2016-25170-I; 2016-25171-I; 2016-25172-I.