Kiers v. Ontario (Ministry of Community Safety and Correctional Services), 2016 HRTO 1505

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Kiers

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services and David Lewis

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: November 25, 2016

Citation: 2016 HRTO 1505

Indexed as: Kiers v. Ontario (Ministry of Community Safety and Correctional Services)

APPEARANCES

Jeffrey Kiers, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services and David Lewis, Respondents

Tina Earl, Counsel

1The purpose of this Interim Decision is to decide whether the Application should be dismissed on a preliminary basis.

2On April 8, 2016, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to services because of disability. Specifically, he stated:

On April 8, 2015 @ 5:05 PM I was parked beside the… Church at the corner of [street names] in [town name], Ontario. Church address is [street address], [town name]. I had parked there shortly before to go over some important papers prior to a meeting. As I was doing this, an OPP cruiser pulled up behind me with lights flashing. I was quite confused at this. I always keep my vehicle in good order and there was no law or order preventing me from parking at that location. Granted I was restricted by a Probation Order from attending certain locations in [town name], but this order did not include [street address], or anywhere on [street name]. For that matter. Therefore my parking where I was was perfectly legal. P.C. [B.H.] of the… OPP approached my vehicle. She asked me why I was parked there. I told her I was going over some important papers prior to a meeting with my former employer. I wanted to make sure I had just left home and pulled over to verify I had all required papers with me. She then asked me “Why did you need to park at this EXACT location?” I didn't understand the relevance of her question. I told her I was on my way to my former employers and that I just wanted to make sure I had all required documents for the meeting. She asked again why I chose that exact spot. I was really confused at this line of questioning. She then went on to say “Perhaps you parked here because of a certain person, to watch them leave work”? I began to understand that she was implying that I was watching (stalking) my ex fiance, as she worked and parked her vehicle one block up [street name]. I found this not only offensive and inappropriate, but quite absurd as from the location of my vehicle, I was completely unable to view the parking lot where my ex might park. It was at this time (approx 5:15) that P.C. Dave Lewis of the… OPP arrived at the scene. He approached in a very aggressive manner. This is the point & individual directly associated with my discrimination & harassment allegations. P.C. Lewis loudly and aggressively demanded to know what I was doing there. He said that I had a “real problem” and “needed to get my head examined”. I had no idea what he was talking about but felt intimidated, harassed and made to feel that this was due to my [mental health] diagnosis, which P.C. Lewis was fully aware of. He said “are you off your meds?” I inferred that he was speaking about the medication for my [mental disability], as these are the only medications I take. He told me I needed to “explain” myself or I might be read a “caution” and possibly arrested. I began to feel very anxious as I could not fathom what I might be doing that was in any way unlawful. I told him this. He said “this is going nowhere” and ordered P.C. [H.] to read me a 'caution'. She did so. Knowing that I had a right to remain silent, I chose to do so. P.C. Lewis was openly very frustrated at this point and asked me would I prefer to see a “shrink” and get my “head examined” or go to jail. My only response was that I surely didn't want to go to jail, even though I didn't know what he was implying. P.C. [H.] told me their investigation would be ongoing and that I might be arrested in the future. She also told me that if I was found on [street name] again I would be arrested….

3In section C8 of his Application (“Explain why you believe you were discriminated against based on your disability or a perceived disability.”), the applicant stated: “… P.C. Lewis statements… are clearly discriminatory and harassing as… they directly targeted my mental illness diagnosis…”

4On July 12, 2016, the respondents filed a Response, which denied the allegations of discrimination. The respondents stated that while the applicant was not technically violating the terms of his probation, he was located less than 100 meters from an area prohibited by those terms, and was along the most direct path between his ex-girlfriend’s workplace and her home. The respondents stated that Police Constable H. and Detective Constable (“D.C.”) Lewis were aware of the terms of the applicant’s probation, which included participating in mental health assessments and programs as recommended by his probation officer, and that D.C. Lewis suggested to him that he obtain medical help because he was continuing to act in a manner that would end with his arrest if he did not stop.

5On August 19, 2016, the Tribunal issued a Case Assessment Direction which directed that a summary hearing be held to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. Both parties filed written submissions in advance of the hearing. The hearing by teleconference took place on November 15, 2016.

6Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9:

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.

7In his submissions, the applicant stated that his Application has a reasonable prospect of success because D.C. Lewis’ comments to him, namely telling him that he had a real problem and needed to get his head examined, questioning whether he was off his medications, and asking him whether he would prefer to see a “shrink” and get his head examined or to jail, amounted to discrimination because of disability. He stated that in Turner v. 507638 Ontario, 2009 HRTO 249, the Tribunal found that similar comments that were made to the complainant in that case amounted to discrimination under the Code. He also stated that D.C. Lewis’s immediate conclusion that he was experiencing symptoms of mental illness, and that his suspected criminal harassment behaviour was directly linked to his disability/illness, was discriminatory because he was not, in fact, mentally ill on April 8, 2015.

8In their submissions, the respondents stated that the Application has no reasonable prospect of success because it is not discriminatory for the police to investigate a third party complaint, and to suggest that a suspect, previously convicted of criminal harassment and whose conditions of probation include mental health treatment, to obtain mental health care to avoid re-offending. The respondents also stated that the applicant did not point to any evidence, aside from his own personal beliefs and opinions, that these events occurred because he had a disability.

9I am not satisfied at this preliminary stage that there is no reasonable prospect that the Application will succeed. Rule 19A.6 of the Tribunal’s Rules states that where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons. However, I will point out that the applicant and the respondents appear to have different versions about what exactly D.C. Lewis said to the applicant on April 8, 2015. I say “appear” because the respondents have neither explicitly denied nor confirmed the applicant’s version. In any case, credibility issue cannot be resolved at a summary hearing. Furthermore, assuming without deciding that the applicant’s version of the facts is true, it cannot be said that the Application has no reasonable prospect of success.

10In his Application, the applicant indicated that he is agreeable to trying mediation, but in their Response, the respondents did not. If the respondents are now agreeable to trying mediation, they should contact the Tribunal’s Registrar within one week of the date of this Interim Decision. If the respondents do not contact the Registrar or notify the Registrar that they are not agreeable to trying mediation, the Tribunal will schedule a one-day hearing of the merits of the Application.

11The Tribunal therefore makes the following order and directions:

1. The Application is not dismissed on a preliminary basis.

2. If the respondents are agreeable to trying mediation, they should contact the Tribunal’s Registrar within one week of the date of this Interim Decision.

3. If the respondents do not contact the Registrar or notify the Registrar that they are not agreeable to trying mediation, the Tribunal will schedule a one-day hearing of the merits of the Application.

12I am not seized of this matter.