Dungus v. Human Rights Tribunal of Ontario, 2014 ONSC 5184

CITATION: Dungus v. Human Rights Tribunal of Ontario, 2014 ONSC 5184

DIVISIONAL COURT FILE NO.: 62/13

DATE: 20140908

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, NORDHEIMER AND MACKINNON JJ.

BETWEEN:

AHMED RABAH DUNGUS

Applicant

– and –

HUMAN RIGHTS TRIBUNAL OF ONTARIO, TORONTO POLICE SERVICES BOARD, ANDREW BLUNK, DARREN HALMAN, JEFFERY TREUSCH, SEAN MCGUINESS, DAVID ROBERTS, KAREN CHAPMAN & CONRAD ROZARIO

Respondents

Osborne G. Barnwell and Ernest G. Guiste, for the Applicant

James B. Schneider, for the Respondent, Human Rights Tribunal of Ontario

Michele A. Wright, for the Respondents, Toronto Police Services Board, Andrew Blunk, Darren Halman, Jeffery Treusch, Sean McGuiness, David Roberts, Karen Chapman & Conrad Rozario

HEARD at Toronto: September 8, 2014

NORDHEIMER J. (orally)

[1]

Overview

Mr. Dungus seeks judicial review of the decision of the Human Rights Tribunal of Ontario dated December 6, 2010 and its subsequent remedy decision dated January 9, 2013. The Tribunal found that the applicant had been discriminated against in two of five instances that the applicant had complained about.

[2]

Background

The issues arise out of the applicant’s arrest by Toronto police officers for suspected drug trafficking. The charges were subsequently withdrawn. The applicant complained to the Human Rights Tribunal about various instances of what he claimed was discriminatory conduct by various Toronto police officers but the Tribunal found discrimination in only two events – one was a discriminatory comment made by a police officer at the time that the applicant was “booked” and the other was in contact that the police had with the applicant’s then employer, the Department of National Defence.

3Having found those two instances of discrimination, the Tribunal in its subsequent remedy decision awarded the applicant $13,000 in compensation for injury to dignity, feelings and self-respect. The applicant had sought $175,000 in compensation and in excess of $1 million in damages for lost income.

[4]

Standard of Review

In terms of this application for judicial review, I begin by stating that the standard of review applicable to the decision of the Tribunal was whether it was reasonable in the circumstances. In that regard, I would observe that the issues involved are ones that clearly fall within the specific expertise of the Tribunal and, consequently, are entitled to significant deference: Toronto (City) Police Service v. Phipps, 2012 ONCA 155, [2012] O.J. No. 2601 (C.A.). On that point, I specifically reject the applicant’s contention that the Tribunal was engaged in determining questions of criminal and constitutional law that would invoke a correctness standard of review.

[5]

Analysis

The applicant raises three essential issues in support of his application. One is that the Tribunal failed in its duty of procedural fairness by failing to conduct the hearing in French. I see no merit in that submission. The applicant never asked the Tribunal to hold his hearing in French nor did he at any time raise any issue that his ability to participate fully and effectively in the hearing was compromised by language issues. I reject the applicant’s contention that the Tribunal had a duty to raise this issue on its own because the original complaint was written in French.

6In support of that submission, the applicant relies on a regulation under the Courts of Justice Act. In my view that reliance is misplaced. The Tribunal is not bound by the Courts of Justice Act. It has its own rules and those rules clearly require a written request for a proceeding to be held in French, or any other language for that matter.

7In my view, the obligation was on the applicant to raise this issue if it was a real one. No obligation rested on the Tribunal to raise the issue unless and until it became evident during the hearing that language communication was an issue. That never happened. Indeed when an issue arose regarding the meaning of the word “food” the Tribunal explored the matter with the applicant to ensure understanding. I note in that regard that that issue was a matter of coded language not of the use of either official language.

8I would also note on this point that the performance evaluation for the applicant to which we were referred shows that the applicant’s language for his employment was English and that he had expressly asked that this performance review be conducted in English.

[9]

Racial Profiling

The applicant next submits that the Tribunal erred in failing to understand and conclude that he was the subject of racial profiling. The Tribunal carefully considered the evidence regarding each of the alleged instances of discrimination. The Tribunal rejected a number of the applicant’s complaints but did find the two instances of discrimination that I have mentioned.

10The applicant challenges the conclusion by the Tribunal that there was insufficient evidence upon which to conclude that he was the subject of racial profiling. He does so on two bases. One, he submits that the Tribunal ignored jurisprudence that establishes that there will often not be any direct evidence of racial profiling. The other is that the Tribunal unreasonably concluded that the evidence did not support such a finding in this case.

11I do not accept either of these complaints. The Tribunal was alert to the issue of racial profiling and the difficulty in establishing it in any given case. That is clear from any fair reading of the Tribunal’s reasons. The Tribunal saw and heard the witnesses. The Tribunal made the necessary findings of credibility and carefully weighed the competing evidence. In the end, the Tribunal concluded that there was insufficient evidence to find race was a factor in the originating interaction between the applicant and the police. That was a finding that was reasonably open to the Tribunal on the evidence.

[12]

Remedy

In terms of the remedy awarded, the Tribunal determined that there was no factual foundation for a conclusion that the contact between the police and the applicant’s employer lead to the termination of the applicant’s employment. As the Tribunal found, the applicant was a probationary employee. His employer undertook its own investigation of this matter and reached its own conclusion to terminate the applicant, although it ultimately paid the applicant to the end of his probationary period. It was open to the Tribunal to conclude that there was insufficient evidence that the applicant’s employment would have continued past the end of the probationary period but for the conduct of the police. In terms of the contact itself, the Tribunal also noted that the applicant acknowledged that he would have informed his employer of his arrest even if the police had not.

13With those issues addressed, the Tribunal assessed the appropriate compensation at $13,000. This is also a matter that is within the particular discretion of the Tribunal which is especially familiar with the appropriate levels of compensation for differing cases of discrimination given its broad experience in this area.

14Given my conclusions, I do not need to address the argument of the Toronto Police Services Board that the application ought to have been summarily dismissed because the applicant failed to seek a reconsideration before the Tribunal.

[15]

Conclusion

The application for judicial review is dismissed.

SACHS J.

COSTS

[16]

Costs

On behalf of the panel, I have endorsed the Application Record as follows, “This application is dismissed for reasons given orally by Nordheimer J. With respect to the issue of costs, we reject the submission that this case raised novel important matters of public policy. However, after taking into account the applicant’s circumstances, we fix the costs in the amount of $2,000, payable to the respondent, Police Services Board. These costs are payable within six months from today’s date.”