Curtis v. Toronto Police Services Board, 2016 HRTO 981

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ernest Curtis

Applicant

-and-

Toronto Police Services Board, Michael Kiproff, Famous Players Limited Partnership, and Mark Sulit

Respondents

DECISION

Adjudicator: David Muir

Date: July 26, 2016

Citation: 2016 HRTO 981

Indexed as: Curtis v. Toronto Police Services Board

APPEARANCES

Ernest Curtis, Applicant Self-represented

Toronto Police Services Board and Michael Kiproff, Respondents David Tortell, Counsel

Famous Players Limited Partnership and Mark Sulit, Respondents Laila Karimi Hendry, Counsel

1This Application alleges discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A hearing was held on June 29, 2016. This Decision explains why the Application was dismissed.

The Dispute

2In his Application the applicant alleged that he was denied entry to one of the respondent Famous Player’s theatres by the personal respondent Mark Sulit. The applicant alleged that he had a valid ticket but was denied entry. He alleged that the personal respondent made a racist remark about black people who came to the theatre.

3The Applicant also alleged that an employee of Famous Players called the police. The applicant alleged that the police officer treated him badly, roughed him up without reason and made comments in relation to his place of origin, etc.

4The applicant believes that these various alleged incidents of adverse treatment were related in whole or in part to his citizenship, colour, place of origin and race.

5The respondents responded to the Application and all deny each of the allegations.

THE HEARING

6A hearing was scheduled to take place on June 29 and 30, 2016. The hearing began and concluded on June 29. All parties participated. I heard the applicant’s evidence.

7At the conclusion of the applicant’s evidence I indicated to the parties that at that point I had observed significant issues with the applicant’s reliability as a witness. I indicated that the issues with his reliability appeared to be significant such that it was not clear how much evidence would be required of the respondents. I also raised the possibility that I need not hear any evidence at all from the respondents.

8After a short break, the respondent Famous Players indicated that the personal respondent Mark Sulit wished to give his evidence. Counsel for all respondents indicated that after Mr. Sulit’s evidence they may ask the Tribunal to dismiss the Application on the basis that it had no reasonable prospect of success.

9At the conclusion of the Mr. Sulit’s evidence the respondent parties made their request that the Application be dismissed at that stage. I directed that they go first in making their submissions to which the applicant would respond. I also explained to the applicant that the issue to be addressed was whether or not it was appropriate to call on the respondents to lead further evidence in light of what appeared to be significant problems with his reliability as a witness such that there was no reliable evidence to establish that a violation of the Code had occurred. I also explained that if the respondents were able to persuade me that this evidence was sufficiently unreliable, the Application might be dismissed without hearing any further evidence. The applicant appeared to understand.

10After hearing the parties’ submissions, I dismissed the Application at the hearing with reasons to follow. These are my reasons.

REASONS FOR DECISION

11As I indicated to the parties after hearing the applicant’s evidence, the issue for me at that stage was whether or not I must dismiss the Application in its entirety because the applicant’s evidence was sufficiently unreliable on a number of significant points such that I could not accept any of his evidence. The respondents addressed this point in their submissions. The applicant, despite several attempts on the part of the Tribunal to explain the issue he needed to address, did not do so.

12In my view the problems with the applicant’s credibility, and therefore reliability, were sufficiently profound that I find myself unable to accept his evidence on any of the material points. The applicant’s evidence at the hearing was different than what is set out in the Application in several important ways. His evidence was internally inconsistent and contradictory. Most importantly perhaps, his narrative of events, whichever version is examined, is entirely contradicted by the objective evidence available to us. When confronted when the objective evidence of the video surveillance, he changed his story to explain what the video shows but did so in a way that was inconsistent with previous versions of the events in question.

13The movie theatre in question is on Richmond Street in Toronto. Entry is from street level where the box office is located. To get to the theatres guests take a lengthy escalator or flight of stairs to the second floor, turn right down a wide passage way to the concession area which leads to the right towards the screening rooms. This space is essentially a large hallway running roughly east-west with entry at the east end and the screening rooms at the west end. To control access to the screening rooms the area is cordoned off with a narrow entry point and podium where a ticket taker is located.

14The background allegations are set out above. The applicant gave evidence with respect to the incidents that day. There are significant differences between what the applicant alleged in his Application and his version of events given at the hearing.

15In his Application, the applicant stated that he arrived at the theatre at about 7:30 p.m. He stated that he bought a ticket and went up to the second level to the food court where be purchased a pop and nachos. The applicant states that he then proceeded to the entrance to the screening rooms where he encountered the personal respondent Sulit, who denied him entry. The applicant states that he was told by Sulit that his ticket was not valid. The applicant went downstairs to the ticket area where he was told that his ticket was fine. The applicant states that he then returned to the same employee, the respondent Sulit, to give him the ticket again. The applicant states that Sulit at this point denied him access again, took the ticket and would not give it back. The applicant states that he asked to speak to a manager and someone went to get a manager. The applicant stated that while we waited, the respondent Sulit said to him “Black people don’t come to this theatre. When they do, they come with a counterfeit ticket”. The applicant stated that he then got upset, lost his temper and began to yell and swear. The applicant stated that a manager arrived at that point and asked the respondent Sulit to step away. The applicant states that he told the manager that he was very upset by what Sulit had said to him.

16At the hearing, the applicant gave a materially different version of the events that day. He testified about his attendance at the theatre, his purchase of a ticket, and what he ate prior to attempting to enter the theatre area, a coke and tacos. He also testified that he attempted to enter the screening room area three times, not twice as alleged in the Application. In the Application the applicant states that on the second and final attempt he took the ticket to the same employee, Sulit. At the hearing he testified that on his third attempt he entered the screening room area “at the side,” meaning to the right of the ticket taker’s podium, thereby avoiding the ticket taker. Unlike his allegations in the Application that he took his valid ticket to an employee of the respondent, at the hearing he testified that he always bypasses the ticket taker and has never had a problem like this before.

17In a document received by the Tribunal on March 15, 2016 (the “March statement”), the applicant added some further details to his description but more importantly, changes his story in material ways. I note that the March statement was delivered and filed by the applicant after he had received the video surveillance of the incident from Famous Players. In my view the applicant began re-shaping the narrative of his allegations in an attempt to bring it closer to what the video shows.

18In this iteration of the events, he confirms he arrived at 7:30 p.m., purchased a ticket and then went upstairs to the concession area where he purchased a “pop and nachos.” The applicant then states that after about 15 minutes he then “went around the VIP lounge entrance” to the screening rooms. The applicant adds to this version of the story that he had been to this theatre over 500 times and he “always entered VIP lounge and entrance and no one has ever asked me for my ticket.” In this version the applicant agrees that “the employee responsible for collecting tickets”, Sulit, approached him and asked to see his ticket. He states that he was told it was not valid. The applicant states he went downstairs and returned, where he was challenged again by the respondent Sulit. This is different than in the Application where he stated that he approached Sulit to give him his ticket on both of his attempts to enter the screening room area. He also adds to this version that the respondent was not in fact responsible for taking tickets but was cleaning up garbage and is not an experienced ticket collector. I note at this stage that despite this new version of events, the applicant agreed at the hearing that he had approached the podium on the first two of this three attempts to gain access to the screening room and showed what he claims was a ticket to Sulit.

19At the centre of the applicant’s case are the alleged remarks made by the respondent Sulit. The content of those remarks and when or where they were made is different in the different versions of the narrative.

20In two of the three descriptions of the incident, the applicant agreed that on his final attempt to enter the screening room area he was challenged by the personal respondent, who asked to see his ticket, and when he presented it, he was told that it was not a valid ticket. The applicant states that he became irate and yelled at the personal respondent after the personal respondent made some offensive remarks about black people attending the theatre. He agrees that he was loud.

21As indicated above in the Application the applicant alleged that the respondent said to him “Black people don’t come to this theatre. When they do, they come with a counterfeit ticket”. This allegation is reproduced in the March statement. At the hearing, he testified that Sulit said to him, “you black people come here and counter scam the theatre”. This version was repeated in cross-examination. In my view these different versions of what it is alleged was said by the respondent Sulit are not insignificant. The applicant’s allegations with respect to when these comments were made is also somewhat changeable. I canvass this aspect of his evidence further below.

22Taking a step back, the most profound difficulty with the applicant’s evidence is that it is almost entirely inconsistent with what the video surveillance reveals. As indicated the theatre area is directly adjacent to the concession area. It is a large open hallway cordoned off with belt and stations. Access is through a gap roughly in the middle of the cordon where an employee of the theatre takes tickets at “the podium”. There were several video cameras capturing activity in this area. They generally took a view from right to left across the cordoned-off open area. The VIP lounge which the applicant describes as being his normal entry point bypassing the podium is in the foreground of the video image to your right if you were facing the podium from the concession area to the screening rooms.

23In the video the applicant can be seen entering the theatre area on the far left side of this open area, to the left of the podium and not in the foreground, where on the applicant’s version of events he always enters and where he should be seen entering the area if I were to accept his evidence. I note that before it became clear that the person shown in the video on the opposite side of the theatre entrance is him, he agreed that the person was sneaking into the theatre. It was then suggested that it was him – the applicant denied that it was him but said he could not clearly see the person. To assist him in identifying the figure in the video, it was then pointed out to him that the person was carrying a bag in one of his two hands. The applicant denied that he was the person in the video, not because the person was on the opposite side of the entry to the way that he testified he had entered the screening room area over 500 times, but because he was adamant that he was not carrying a bag. However the fact is that the applicant is clearly identifiable as the person in the video entering the theatre area having avoided the podium. He is carrying a bag. He is not approaching the podium as suggested in the Application; he is sneaking in in an apparent attempt to avoid the ticket collector.

24The applicant testified that he was approached by the respondent Sulit who was cleaning up garbage and who asked to see his ticket. The applicant testified that the respondent took the ticket and said that it was not a ticket but a debit receipt indicating a declined transaction. The applicant testified that the respondent kept the ticket and at that point allegedly made the racist remarks.

25I note that this is different from the version of events described in the Application and the March statement wherein the applicant described the sequence of events after he is challenged as follows:

a. Sulit takes his ticket, says it is invalid and won’t give it back;

b. The applicant asks to speak to a manager and one of the respondent’s colleagues leaves to get a manager. It is while they are waiting that the remarks are made.

c. The applicant reacts to the remarks.

26The video reveals a different version of events which is inconsistent with any version offered by the applicant. It is on the other hand consistent with the version of events described by the respondent Sulit.

27In the video, as indicated, the applicant can be seen entering the screening area having avoided the podium by a wide margin. After a few seconds in which he disappears from view, the applicant can be seen again with a bag in one hand and something in the other moving towards the screening rooms. He is then approached by the respondent Sulit. Sulit is not cleaning up garbage. The applicant is still holding a bag in one hand and a piece of paper in the other. The respondent can be seen speaking to the applicant. Although Sulit may have looked at the piece of paper in the applicant’s hand, he does not appear to have taken it. After a moment the two men proceed back to the podium; the applicant can be seen throughout holding a bag in one hand and a piece of paper in the other. The respondent has nothing in his hands. Both men appear to be calm at this point, suggesting that on the applicant’s version of events, nothing inappropriate has been said to him by the respondent.

28The applicant arrives at the podium, walks past it and turns to face another employee at the podium taking tickets. He begins speaking with this employee. It is then that he appears to become very agitated and causes what can only be described as a disturbance. Although he denied being physically aggressive, the video clearly reveals that he keeps moving toward the respondent Sulit as the respondent backs away from him. Two other employees of the respondent intervene shortly thereafter to block his access to the respondent who is standing several feet behind the podium. The applicant’s pursuit of the personal respondent continues for some time. He denied spitting at the personal respondent but the video shows him throwing his head at the respondent in a motion consistent with him spitting.

29In the pleadings, the applicant alleged the personal respondent took his ticket away when the applicant approached him to hand him his ticket. This version of events is not consistent with the video surveillance. The applicant does not approach the personal respondent to show him his ticket. He is clearly sneaking into the screening room area and is intercepted by the personal respondent. Moreover, as discussed earlier, there is no indication in the video that the personal respondent ever took anything from the applicant, and in any event the applicant can be seen throughout his interactions with the personal respondent holding a bag in one hand and a piece of paper in the other. This is true at least until the applicant arrives at the podium. It is not clear but it may be that the applicant lost this piece of paper during the physical confrontation that ensued as the applicant seemed to be trying to get at the personal respondent.

30At the hearing the applicant testified that it was at the podium that the personal respondent took his ticket and gave it to the manager. Again this is inconsistent with the video surveillance. The video shows that other than when the applicant was forcibly attempting to get at the personal respondent, he remained at a distance from the applicant. The applicant is on one side of the podium and the personal respondent on the other; several feet separate the two men until the applicant begins to approach the respondent again. The personal respondent did not ask for or take anything from the applicant at that stage – he is trying to maintain a distance from the applicant.

31In his Application and the March statement, the applicant also says that when the personal respondent took the ticket he, the applicant, demanded to see the manager. He then states that another employee went to get a manager. It was at this point that that the alleged inappropriate remarks were made about black people. This version of events is again inconsistent with the video surveillance. Once the two men arrive at the podium, there is no evidence of interaction between them. The applicant begins interacting with another employee and can be seen becoming increasingly agitated. He begins to point at the respondent and move toward him, but as indicated above, there is no indication in the video that the personal respondent was interacting with the applicant after they reached the podium or that he took anything from him. Moreover, there is no evidence of an employee leaving the area to get a manager at the applicant’s request.

32After a few moments the applicant then moves past the podium and into the screening area in an apparent attempt to physically challenge the respondent. It is at this point that two other employees appear and attempt to prevent the applicant from getting to the respondent who continues to back away. A person identified as a manager arrives moments later.

33When asked about these evident problems with his evidence, the applicant at first simply denied that the video was an accurate representation of the events. So at first when the video captures him entering the theatre area surreptitiously, he simply denied that it was him, although it clearly was. When the bag was pointed out to him, he denied that he was carrying a bag, although he clearly was. He later conceded that the person in the video was him, but maintained despite this concession that he had entered the theatre area on the opposite side of the hallway, in the foreground of the video. Clearly he had not. He also maintained that he carried a receipt for food in one hand and his ticket in the other, despite the bag. Clearly he was only holding a bag in one hand and what he says was a receipt in the other.

34In an attempt to explain the piece of paper in one hand, the applicant changed his description of the events just prior to the final attempt to enter the screening room area. In his Application and the March statement the applicant states that he entered the theatre complex at 7:30 p.m., bought his food, and after about 15 minutes made his first of two attempts to enter the screening room area, leading to his return downstairs to confirm that the ticket was valid, etc., and return for the second and final attempt. In his final iteration of the sequence of events given in response to questions from counsel for the respondent Famous Players, the applicant testified that prior to his last attempt to enter the screening room area, he felt rushed because he thought he was late. He states that he paid for his food with a 20-dollar bill and left the change, taking the receipt in his hand; because he had no time, he did not put it in his pocket. He then surreptitiously entered the screening room area with the receipt in hand. This is a different version of the events leading to the incidents at the heart of the case. They are in my view inconsistent and suggest that the applicant was changing his story to attempt to deal with what is clear – that the respondent did not take a ticket or other piece of paper from the applicant.

35There are other problems with his evidence. The applicant agreed that he was yelling and screaming at various employees of the respondent, although he denied that he causing a disturbance. He clearly was, even if he was provoked. He also denied swearing at anyone, but that is the word he used in the Application and the March statement. Counsel for the Toronto Police Services Board and the individual police officer played the 911 call from the manager of the theatre, in which the applicant can clearly be heard yelling at the manager of the theatre. The applicant denied it was his voice. When asked if he was sure, he continued to deny that it was his voice. He was asked if he wanted to listen again; he said no, it was not him. Later he suggested that he could not remember. In my view, having listened carefully to the recording, it is clearly the applicant’s voice yelling at the manager for calling the police. The fact that he would deny what is plainly obvious is significantly damaging to his credibility.

36The applicant denied being physically aggressive towards anyone but in the video he can clearly be seen attempting to get at the respondent Sulit. Two other employees can be seen intervening and physically blocking the applicant as he continues to approach the respondent. Although he denied it in cross-examination, on two occasions in chief he suggested that if he were a bigger man he would have thrown the respondent down the stairs. The applicant denies that he spit on the personal respondent. The video evidence suggests that he did or at least made a spitting gesture.

37As regards the interaction with the police, there are important discrepancies in the versions of events the applicant has provided at various times. In his Application, he alleged that the police officer kicked him in the “butt”. At the hearing, when asked to show where he had been kicked, he testified on the lower leg. In the application, he alleged that his body had been thrown on the cruiser. At the hearing, he testified that his face was thrown against the cruiser. The applicant had no explanation for these discrepancies, except to say, in contradiction to assertions that his memory was crystal clear (which he made several times), that it was over a year ago and perhaps he had forgotten. It is not clear to me how a person forgets where they were kicked.

38As I indicated to the parties at the hearing, I was somewhat concerned about the remarks allegedly made by the respondent Sulit. I also indicated that it might be possible to infer from the circumstances that while the applicant had been caught sneaking into the theatre, that in fact some inappropriate remark was made to him and that might have provoked the applicant’s evident reaction. However, having considered the evidence of the respondent Sulit, and in light of the obvious frailties in the applicant’s evidence discussed in some detail earlier, I have no hesitation in accepting Sulit’s evidence. The applicant argued at length that I should not accept the respondent’s evidence because there was no audio and that this was all a cover up. There is no evidence of this and I would observe that it is not a surprise that there is no audio with this kind of surveillance video. In any case the evidence of the personal respondent was consistent with the video surveillance, unlike the applicant’s, which in many significant respects was inconsistent with it. Sulit also gave his evidence in a straightforward manner and was not challenged in any meaningful way. In short, unlike the applicant, there was no substantial reason to question the veracity of Sulit’s testimony and I accept it.

39I accept the respondents’ submission that the applicant’s evidence cannot be accepted because he was simply not credible on a multitude of material points. Accordingly, I find that there is no credible evidence to support either that the personal respondents engaged in the conduct alleged by the applicant or that a factor in his treatment by any of the respondents were any of the Code grounds claimed.

40Further the Tribunal has held that where (and when) it appears that an applicant will be unable to prove on a balance of probabilities that a violation of the Code has occurred, it is not required that the respondents call their entire case, but it may be appropriate to entertain the parties’ submissions about whether the Application should be dismissed in whole or in part because it has no reasonable prospect of success. In Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, the Tribunal reasoned as follows in somewhat different circumstances at para. 26:

I believe that it is neither appropriate nor principled that the hearing continue when there remains only a theoretical possibility and no reasonable prospect that evidence that could meet an applicant’s burden of proof will come forward. Here, for example, to succeed in his Application the applicant must show that the individual respondent’s stated reasons for her actions – to improve the applicant’s performance and address staff concerns – are in fact a pretext and that his disability or the intention to reprise were factors in her actions. If, as I conclude below, having heard the individual respondent’s evidence and the applicant’s theory and intended evidence, there is no reasonable prospect that the other proposed evidence of the applicant or the respondent could change this conclusion, this should put an end to the matter. When an applicant has had a chance to fully outline what evidence he or she still intends to call and the basis on which he or she submits the Application can succeed, but there is no reasonable prospect that a violation of the Code would be found, the Application should be dismissed.

41In this case I had heard the applicant’s evidence which for the reasons set out above I cannot accept. I had also had the benefit of a principal respondent witness who allegedly made comments which are central to the applicant’s case. Both because of the evident frailties in the applicant’s evidence and the apparent veracity of the personal respondent’s evidence, which was consistent both with the preponderance of probabilities and the video surveillance, I accepted the respondent Sulit’s evidence. As such there is no credible and reliable evidence to support the applicant’s claims and in my view it was appropriate to dismiss the Application at that point and for these reasons.