Mazia v. Ontario (Community Safety and Correctional Services), 2016 HRTO 1678

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ivanmarino Mazia

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Community Safety and Correctional Services and Bernadette Ruzic

Respondents

INTERIM DECISION

Adjudicator: Brian Cook Date: December 23, 2016 Citation: 2016 HRTO 1678 Indexed as: Mazia v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Ivanmarino Mazzia, Applicant Self-represented

Ministry of Community Safety and Correctional Services and Bernadette Ruzic, Respondents Hera Evans, Counsel

1These three Applications allege discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Applications arise out of the applicant's incarceration in facilities operated by the corporate respondent.

2The applicant has filed a number of other Applications involving the same corporate respondent. Some of these are closed and some are ongoing. One of these other Applications, in Tribunal file number 2014-17984-I, relates to an allegation by the applicant that he was not accommodated in regard to a special diet that he needs for a disability. That Application (referred to below as “the diet Application”) is separate from the three Applications considered here, but it is part of the background to them. A hearing has not yet been scheduled for the diet Application.

3The Tribunal determined that it was appropriate to hold a summary hearing in regard to the three Applications that are the subject of this Decision. The Tribunal’s Practice Direction on Summary Hearings states:

A summary hearing usually considers:

• whether, assuming all of the allegations are true, the Application has no 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; and/or

• whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.

4The hearing was held on December 12, 2016, by telephone conference call. The applicant participated. Ms. Evans appeared as counsel for the respondents.

The Application in file 2015-21872-I

5This Application relates to an allegation that the applicant was assaulted while in custody. The Application as filed identified a number of grounds of discrimination. At the hearing, the applicant confirmed that the identified grounds of discrimination are all withdrawn. The only remaining allegation is reprisal, contrary to section 8 of the Code.

6At the hearing, the applicant stated that the assault took place in December 2014 and that he was assaulted by Correctional Officers. He said that the assault itself did not have anything to do with a protected ground of discrimination under the Code. However, he believes that the assault happened in reprisal for the fact that he had filed the diet Application.

7The applicant alleges that after the assault, he said he wanted to press charges against the officers and that he was then immediately transferred to another facility. The applicant did not identify any evidence that might be available that would show that the alleged assault had anything to do with the earlier Application. He said, however, that he believes that there is a connection.

8As noted by the respondent, the Tribunal has consistently held that a belief on the part of an applicant that his Code-protected rights has been infringed is not in itself sufficient to establish that an infringement took place. In order to succeed, there must be evidence that is available to show that the belief is correct.

9This Application is dismissed as having no reasonable prospect of success.

The Application in file 2015-22715-I

10The applicant has a heart condition for which he takes medication, including Aspirin. Medications in a correctional institution are dispensed by a nurse. The nurse is responsible for giving an inmate his medication and ensuring that it is properly consumed.

11On or about November 17, 2015, the applicant was in line with other inmates to receive his Aspirin. When his turn came, the nurse told him he was required to take the Aspirin with water. The applicant had a cup containing coffee. He said he wanted to take the Aspirin with his coffee and not with water. The nurse would not agree and insisted he take the Aspirin with water. This dispute was eventually resolved when the doctor in charge prescribed a chewable Aspirin.

12The applicant explained that he did not want to take the Aspirin with water because the water in the unit where he was tasted bad. He said there had earlier been some renovations following which he observed a black substance coming out of the tap, causing him to decide not to drink the water. In the Application, the applicant also indicated that he was concerned that the water might affect his testosterone levels but he did not bring this up at the hearing.

13The applicant alleges that the incident with the nurse happened because of earlier incidents. Before the Aspirin incident, the applicant made a complaint about the nurse’s daughter, who works as a Correctional Officer at the same facility. The complaint arose after the daughter came to the applicant’s cell to confirm that he had received his appropriate diet-controlled meal. A dispute arose during which, according to the applicant, the daughter spit on him. The applicant said that he believes she did this by accident, but he nevertheless complained about the incident. He stated that she was then removed from the unit as he did not see her again.

14The applicant alleges that the nurse required him to take his Aspirin with water in reprisal for his having complained about her daughter.

15In addition, he had other disputes with the nurse prior to the Aspirin incident. On one occasion, he required drops for an ear infection. She gave him drops only for one ear, although he felt he required them for both ears. Sometime later, the nurse refused to give him Maalox for an upset stomach unless he had a note from a doctor. He alleges that Maalox is generally given to other inmates without a doctor’s note. The applicant filed a complaint with the College of Nurses about these incidents.

16The applicant believes that all of these matters caused the nurse to reprise against him by insisting that he take the Aspirin with water.

17The respondent agrees that the nurse required the applicant to take the Aspirin with water. The respondent notes that the Ministry Regulations require that medication be taken with water or juice. The package instructions for Aspirin indicate that it should be taken with water.

18Section 8 of the Code provides as follows:

8. 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.

19Even if it true, as the applicant suspects, that the nurse required him to take his Aspirin with water rather than coffee in reprisal for the earlier events, it does not appear that any of the earlier events related to the applicant’s right to claim and enforce his rights under the Code. The initial incident with the nurse’s daughter was related to his disability-related diet needs in so far as she was in the cell to inspect his food tray. However, it does not appear that the alleged spitting or the subsequent complaints by the applicant were related to an attempt by the applicant to claim or enforce his rights under the Code.

20In regard to the allegation that the nurse reprised against him because he had complained to the College of Nurses about the disputes about whether he needed drops for one ear or two and whether he could have Maalox without a doctor’s note, section 8 does not provide protection for reprisal for making a complaint to a professional College unrelated to the person’s rights under the Code.

21The allegation of reprisal by the nurse does not appear to be an allegation of reprisal for attempts by the applicant to claim or enforce his rights under the Code. Even if the nurse reprised against him for past complaints about her or her daughter, section 8 would not apply to that alleged reprisal.

22For these reasons, this Application is dismissed as having no reasonable prospect of success.

The Application in file 2016-23432-I

23This Application concerns interactions with a Sergeant employed at the facility where the applicant has spent time. The Application as filed named the Sergeant as a personal respondent, but the applicant subsequently advised that he was withdrawing the Application against her personally on the understanding that any liability for an infringement of his rights under the Code would be covered by the Ministry.

24The applicant had some disputes with the Sergeant about his mail. The applicant alleges that she improperly opened his incoming and outgoing mail, including mail that should have been recognized as privileged.

25In the original Application, the applicant alleged that when he complained to the Sergeant about this in or about May 2015, she used vulgar language, and told him he deserved to be in jail and that if he complained any more she would place him in solitary confinement.

26Sometime later, the institution determined that it would be helpful to assign one person to deal with the applicant’s various complaints. The Sergeant was assigned to this role. In this role, the Sergeant became involved with the Aspirin incident involving the nurse. He alleges that she did not take his complaints seriously, and threatened to transfer him to a different unit or to solitary confinement. She again advised him not to make more complaints.

27The applicant filed a complaint against the Sergeant with the Deputy Superintendent and asked that a different officer be assigned to deal with his issues.

28The applicant alleges that after this, the Sergeant told him again that if he made another complaint, she would assign him to solitary confinement or segregation.

29According to the applicant, he immediately filed a complaint about this with the Deputy Superintendent. He states that after this, he felt that the Sergeant was not responding to his complaints about his letters or other matters that he raised.

30At the hearing, the applicant alleged that the Sergeant did not just say that if he made any more complaints he would be placed in segregation, as alleged in the Application; rather, he claimed that the Sergeant said that he would be placed in segregation if he made any further complaint or Application to this Tribunal. This allegation is an allegation of a threat of reprisal contrary to section 8. However, it is also a different allegation than was stated in the Application. The new allegation articulated at the hearing was also not mentioned in the request to amend the Application filed by the applicant.

31In January 2016, the applicant covered the window to his cell with a sheet. Inmates are not allowed to do this. At the hearing, the applicant said that he did this because there was a serious problem with the toilet in his cell and his previous attempts to get something done had proved ineffectual so he covered the window to get the attention of the Correctional Officers. The Sergeant responded to the situation. She wanted to handcuff the applicant but he resisted. He was found to have resisted an Officer and improperly blocked the window to his cell and he was sent to segregation for 13 days.

32The applicant’s allegation is that the Sergeant treated him poorly and abused her authority and that she did this in reprisal.

33Assuming for the purpose of this decision that the applicant is correct, I do not see any basis for an allegation that the purported reprisal had anything to do with the attempts by the applicant to claim or enforce his rights under the Code.

34The applicant’s allegations are that the Sergeant either opened his mail or refused to deal with his complaints about opened mail; that she refused to take the Aspirin issue seriously; that she failed to respond to his continuing complaints; that she advised him to stop complaining; that she repeatedly told him he would be placed in segregation if he continued to complain; and that she did not respond appropriately after he hung the sheet across his window.

35Based on the information provided by the applicant in the Application, including the request to amend the Application, and the information provided at the hearing, it appears to me that, with one exception, there is no reasonable prospect that the applicant could successfully show that anything the Sergeant said or did was said or done in reprisal contrary to section 8 of the Code.

36The one exception is the comment the applicant alleges the Sergeant made to the effect that he would be put in segregation if he made another complaint to the Tribunal. As noted, this allegation arose for the first time during the hearing. It is different than the allegation in the original Application that claimed only that the Sergeant said that if the applicant made any more complaints he would be put in segregation. Nevertheless, the comment, if made, could be a comment that was a threat contrary to section 8 of the Code.

37The respondent has not yet been required to file a Response in file 2016-23432-I. It is directed to do so within three weeks of this Interim Decision. The respondent is not required to respond to all the allegations in the Application. All of the allegations in the Application are dismissed as having no reasonable prospect of success except for the allegation that the Sergeant said that the applicant would be put in segregation if he made another complaint or Application to this Tribunal.

38For these reasons, the Applications in Tribunal files 2015-21872-I and 2015-22715-I are dismissed in their entirety as having no reasonable prospect of success. The Application in Tribunal file 2016-23432-I is dismissed as having no reasonable prospect of success except for the allegation that the Sergeant said that the applicant would be put in segregation if he made another complaint or Application to this Tribunal.

39This remaining allegation will be added to the issues to be dealt with in the hearing that remains to be scheduled in Tribunal file 2014-17984-I.