Johnson v. Ontario (Community Safety and Correctional Services), 2017 HRTO 1266

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eugene Johnson

Applicant

-and-

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

Respondent

-and-

Ontario Provincial Police Association

Intervenor

DECISION

Adjudicator: Brian Cook

Date: September 26, 2017

Citation: 2017 HRTO 1266

Indexed as: Johnson v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Eugene Johnson, Applicant

Self-represented

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

Marnie Corbold, Counsel

Ontario Provincial Police Association, Intervenor

Michele Hamilton Mayers, Counsel

1This Application alleges reprisal and discrimination in employment because of race, colour, ancestry, place of origin, disability, and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2After reviewing the Application, the Tribunal determined that it was appropriate to schedule a summary hearing to determine if the Application is timely and, if so, whether it should be dismissed as having no reasonable prospect of success. The summary hearing was held by telephone conference call on August 30, 2017. The applicant participated as did the respondent and the intervenor.

Renewed request for adjournment

3At the outset of the hearing, the applicant noted that he had asked that the summary hearing be adjourned because he feels that his ability to participate in the hearing is impaired by his medical condition.

4The applicant asked that the summary hearing be adjourned in June 2017. In a Case Assessment Direction dated June 21, 2017, the Tribunal directed the applicant to

[S]ubmit another medical document in which his doctor acknowledges having read this Case Assessment Direction, and in which the doctor clearly states what about a teleconference hearing would be inaccessible. The doctor shall also provide information regarding what measures the Tribunal can take to make the hearing accessible.

5On July 14, 2017, the Tribunal noted that the applicant had not provided any additional medical support for the adjournment request, and the request was denied in Interim Decision 2017 HRTO 868.

6At the hearing, the applicant renewed his request for an adjournment. He said he had not discussed the hearing with his treating psychiatrist but his psychiatrist had recently prescribed a new medication which can result in dizziness. The applicant indicated that he was feeling dizzy. I denied the adjournment request but advised the applicant that he could request breaks during the hearing if necessary. The applicant was able to continue and did not request a break. It appeared to me that the applicant was able to present his submissions in a clear and cogent manner. He did not require a break.

The allegations

7The Application alleges that the applicant experienced discrimination during his employment as a police officer with the Ontario Provincial Police. The Application indicates that the applicant felt that there was systemic discrimination and provided some specific examples of allegations that he believes showed discrimination in the workplace. The examples specific to the applicant relate to situations where he was denied opportunities or passed over for promotion. As discussed below, these allegations relate to matters that happened more than one year before the Application was filed.

8The Application indicates that this discrimination happened because he is Chinese.

9The Application also includes allegations relating to domestic incidents related to the applicant and his wife. The applicant alleges that he was treated differently because of his sex and because of race. The applicant’s wife was also an employee of the respondent.

10The applicant alleges that in November 2014, his wife told her supervisor that there had been a domestic incident. The supervisor told the applicant’s wife that she should report the matter to the York Region Police (“YRP”), which she did. The applicant was charged by the YRP. The applicant eventually pled guilty to a lesser charge and received an absolute discharge.

11In June 2015, the applicant’s wife disclosed to her employer a second incident of an alleged domestic incident. The applicant was charged and pled guilty to two of the charges.

12The applicant alleges that in the domestic incidents, it was his wife who was the instigator of the incidents. He alleges discrimination because when his wife disclosed her allegations, she was supported by the respondent and encouraged to file a complaint with the YRP. However, the applicant was not given this support or encouragement. Instead, the respondent laid charges against the applicant under the Police Services Act. As of the time of the hearing, those charges are still pending. The proceedings have been adjourned because of the applicant’s medical condition.

13The applicant was suspended with pay in June 2015. He continued in that status until he started a medical leave of absence which continues.

Timeliness

14Section 34 of the Code provides:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

15The Application was filed on August 24, 2016. The one-year period referred to in subsection 34(1)(a) was accordingly between August 24, 2015 and August 24, 2016.

16All of the allegations in the Application described above occurred before August 24, 2015. The first issue therefore is whether there is an allegation of discrimination within the one-year period that would make the earlier allegations part of a series of incidents and whether the timely or last allegation has no reasonable prospect for success. The second issue is whether there is a good faith explanation for the delay.

Is there a series of incidents?

17The applicant asserts that all of the allegations are part of a series of events and that the last event took place in July 2016, one month before he filed the Application. He explained that in or about June 2016, he informed his superintendent of his allegation that his wife was the instigator of the alleged domestic incidents. He told the superintendent that since the respondent had supported his wife in regard to her allegations, he should be supported in regard to his allegations. In July 2016, the superintendent sent the applicant an email. According to the applicant, the email stated that the respondent would not get involved in the applicant’s allegations about his wife and that he should approach the YRP if he wanted to pursue the matter. The applicant alleges that this email is an incident of discrimination on the grounds of sex because it shows that he was treated differently than his wife.

18In the Application, the applicant also referred to a complaint he made to the respondent in May 2016 about his wife’s use of a sick day. He alleges that she should have been charged with fraud and was not and that the respondent then refused to tell him how it had dealt with the matter.

19The applicant also alleges that a fellow officer, who he says is white, assaulted another officer in the station and was not charged. He alleges that this shows that he was treated differently because of race since he was charged and the white officer was not.

20In my view, there is no reasonable prospect that the applicant could establish that the fact that the superintendent told him to go to the local police about his allegations about his wife was discriminatory. The respondent also told the applicant’s wife to go to the local police. On the two occasions when the applicant’s wife disclosed her allegations to the respondent concerning domestic incidents the respondent had a duty as an employer to ensure that the applicant’s wife was safe and it appears that it did this. The decision to charge the applicant was made by the YRP and not by the respondent. It is true that the manner in which the respondent dealt with the disclosures by the applicant’s wife in November 2014 and June 2015 was different that the way it dealt with the applicant’s disclosure in June 2016, but the circumstances under which the disclosures were made were very different. The applicant’s wife’s disclosures were made in the workplace and invoked a duty on the part of the respondent as employer. The applicant’s disclosure was made when he was on a paid leave of absence.

21The allegation of discrimination because a white officer was not charged with assault also has no reasonable prospect of success because the situation and circumstances with regard to the white officer are completely different than the applicant’s circumstances.

22The allegation that the respondent did not respond in the way the applicant thought it should have in regard to his allegation about the use of a sick day also has no reasonable prospect of success because it does not involve an allegation that has anything to do with the applicant’s rights under the Code.

23I am satisfied that there is no reasonable prospect of success that the applicant could prove that the differential treatment occurred as a result of discrimination because of sex or any other Code-protected ground.

24After the hearing, the applicant sent a further submission in which he argues that the Application is timely because the discriminatory events are in fact still ongoing. He notes that at the time he filed the Application, there were continuing proceedings under the Police Services Act which continued after he filed the Application and some of which have still not been concluded.

25In my view, the fact that there are ongoing proceedings under the Police Services Act would not establish evidence of continuing discrimination. The proceedings relate entirely to events that happened more than one year before the Application was filed. I appreciate that the applicant believes that he continues to feel that he is being treated unfairly. However, I am satisfied that there is no reasonable prospect that the applicant could successfully show that the ongoing proceedings are in themselves discriminatory.

26The allegations of alleged discrimination that occurred within one year of the filing of the Application have no reasonable prospect of success and must be dismissed. On this basis, the incidents of alleged discrimination that happened more than one year before the Application was filed are not part of a “series of incidents” connecting the earlier alleged incidents for the purpose of section 34(1)(b).

Is there a good faith explanation for the delay?

27The applicant explained that he did not feel capable of filing the Application earlier because of his medical condition which includes severe depression. He said that he has been suffering with this condition since at least 2014. His condition became obvious to his supervisors by late 2014, at which time he was assigned to desk work. He said that in 2015, he was only reporting for work on a daily basis and then went home. In May 2015, he was ordered to go to a hospital for assessment but he refused. His use of force had been taken away because of concerns about his condition. He was then placed on a sick leave. While on sick leave, his condition was very debilitating. His treating psychiatrist provided him with a medical certificate stating that he was not capable of appearing in court as a witness in regards to criminal charges where he was an arresting or investigating officer. The applicant notes that this was a serious matter as some of the charges were necessarily withdrawn when he was not available as a witness.

28The applicant said that he was able to file the Application in August 2016 because by then he was starting to feel better. He said that he decided to file the Application when he received the email from the superintendent stating that the respondent would not get involved in his allegations about his wife.

29The Tribunal has accepted that disability, including severe depression, can provide a good faith explanation for the delay in filing an Application. However, the Tribunal will generally require medical evidence to confirm that the disability prevented the applicant from filing the Application earlier (see, James v. York University and Human Rights Tribunal of Ontario, 2015 ONSC 2234 (Div. Ct.) at paragraphs 45-50).

30The applicant and the intervenor noted that the record does include notes from the applicant’s treating psychiatrist confirming that the applicant was not medically capable of appearing as a witness in criminal trial. These were accepted by the respondent as valid and the applicant was not required to appear as a witness even though the result was that charges might be withdrawn.

31In my view, the fact that the applicant was medically not capable of appearing as a witness in a criminal trial does not mean that he was also unable to file an Application with this Tribunal. Appearance as a witness is a criminal trial, including the experience of cross-examination, is an experience that inherently involves stress. In my view, it is not comparable to the experience of filing an Application. I further note that in the period from 2014 to August 2015, the applicant had legal counsel representing him with respect to the charges laid under the Police Services Act. The applicant said that he did not mention his allegations about the violations of his rights under the Code to his lawyer because he was overwhelmed by the circumstances and felt hopeless. The applicant said that when he was sent home on sick leave his condition was so severe that he felt he did not want to leave his room. He was living with his sister but did not want to get her involved in helping him to file an Application.

32I accept that the applicant felt overwhelmed by his circumstances and that he was suffering from severe depression. However, I am not satisfied that this represents a good faith explanation for the delay. There is medical evidence to support that the applicant was impaired by his disability and was not medically capable of appearing as a witness in criminal trials. However, this does not mean that he was also medically unable to file an Application under the Code. The fact that the applicant was represented by counsel in regards to related matters is relevant because he could at least have asked for advice if he did not feel able to pursue matters on his own.

33I conclude that the applicant has not established a good faith explanation for the delay in filing the Application.

Decision

34I find that there is no reasonable prospect of success that the applicant could prove that he experienced a violation of his rights under the Code within the one-year period before he filed the Application.

35I find that the applicant has not established a good faith explanation for the delay in filing the Application.

36For these reasons, I conclude that the Application was not filed in accordance with section 34 of the Code and the Application is dismissed on that basis.