Perumal v. Bhattacharjee, 2017 ONSC 5597

CITATION: Perumal v. Bhattacharjee, 2017 ONSC 5597

DIVISIONAL COURT FILE NO.: 255/16

DATE: 20171013

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN, KITELEY, CROLL JJ.

BETWEEN:

SURESH PERUMAL

Applicant

– and –

KEN BHATTACHARJEE, HUMAN RIGHTS TRIBUNAL OF ONTARIO; TORONTO POLICE SERVICES BOARD, WILLIAM BLAIR, SIMON FRAZER, WALID OSMAN and AMY PATTERSON

Respondents

Olanyi Parsons, for the Applicant

Adam Guy and Madlyn Axelrod, for the Respondents, Toronto Police Services Board, William Blair, Simon Frazer, Walid Osman and Amy Patterson

Sabrina Fiacco, for the Respondent, Human Rights Tribunal of Ontario

HEARD: September 12, 2017

LEDERMAN J.

NATURE OF PROCEEDING

1The applicant, Suresh Perumal (“Perumal”) applies for judicial review of an initial decision and re-consideration decision of the Human Rights Tribunal of Ontario (the “Tribunal”) dismissing his complaint alleging discrimination in the services provided by the police respondents on the basis that he had not proven, on a balance of probabilities, that the respondents discriminated against him.

SUMMARY OF FACTS

2On September 12, 2010, Perumal called 911. He took issue with the conduct of some of his neighbours whose dogs had been causing ongoing problems for him and his fiancé, Jennifer Duczmal (“Duczmal”). The dog owners had gathered near Perumal’s house. They were furious over a sign, which had been installed upon the Perumal’s request by the City of Toronto setting out the municipal by-laws requiring dogs to be kept on leashes and that dog feces be picked up by the dog owner. Perumal felt he was being threatened by these dog owners.

3Three police officers (PC Osman, PC Patterson and Sgt. Fraser) were dispatched to respond to Perumal’s call. When they arrived, they first spoke to the dog owners and a security guard whom they encountered in the courtyard as they were walking through the townhouse complex towards Perumal’s home. The officers all testified that several dog owners complained to them that Perumal had made threats of bodily harm and threatened to kill their dogs. PC Osman and Sgt. Fraser then proceeded to Perumal’s townhouse while PC Patterson remained with the group of dog owners to take statements.

4Perumal advised PC Osman and Sgt. Fraser that he had previously complained to the City about dogs being off leash, that a sign was put up by the City, and that the dog owners were protesting outside his townhouse because of that sign and that he found the dog owners’ actions intimidating. When asked about the alleged threats that he had made to the dog owners about them and their dogs, Perumal responded that he had only told an owner that he would “eat” her dog.

5The police arrested Perumal but not any of the dog owners. Perumal was charged with a number of criminal offences relating to his threat and his conduct towards his neighbours. Four of these charges were withdrawn by the Crown and a fifth charge was held to be unsubstantiated leading to Perumal’s acquittal.

6Perumal, who is East Indian, filed an application under the Human Rights Code (the “Code”) alleging that he had been arrested and charged by the police because of his race, colour, ancestry, place of origin and ethnic origin. In dismissing his application the Tribunal stated at para. 58 of the reasons as follows:

In my view, the applicant has not proven, on a balance of probabilities, that the police officers arrested and charged him with criminal offences because he is an Indian man. The evidence demonstrates that, although the applicant had called 911, the officers encountered a situation where several dog owners and a security guard clearly alleged that the applicant had committed criminal offences, but the applicant did not clearly allege to the officers that the dog owners had committed any criminal offences, and he corroborated the allegations made against him by admitting that he had threatened to “eat” a dog. In these circumstances, the fact that the applicant was Indian and many or most of the dog owners were White is insufficient to establish his race, colour, ancestry, place of origin, and ethnic origin were a factor in the decisions to arrest and charge him.

7Perumal made a Request for Reconsideration in which he raised a number of grounds including:

(a) there was a delay in releasing the Tribunal’s decision beyond the six month period permitted by law and therefore he did not receive a fair hearing;

(b) that the initial decision raised a reasonable apprehension of bias because the Tribunal completely ignored his evidence on critical issues;

(c) that the Tribunal was one-sided in assessing the credibility of the parties’ witnesses;

(d) that the decision was unreasonable; and

(e) that he had filed a video with the Tribunal after the hearing and while the decision was under reserve but the Tribunal decision states that the video was never submitted.

8This Request for Reconsideration was denied by the Tribunal.

BASIS FOR JUDICIAL REVIEW APPLICATION

9In argument before this Court, Perumal submitted that the Tribunal’s decisions were unreasonable on three grounds:

1. The Tribunal failed to assess whether the disproportionate actions of the police officers in charging Perumal with criminal offences were influenced by racial stereotypes;

2. There was a reasonable apprehension of bias on the part of the Tribunal by placing too much weight on minor inconsistencies in the testimony of Perumal and Duczmal without regard to the inconsistencies in the evidence given by the police officers;

3. The Tribunal acted unreasonably, or alternatively, demonstrated a reasonable apprehension of bias, in making and/or confirming negative adverse inferences against Perumal for failing to disclose the video to the Tribunal; but made no adverse inference with respect to PC Patterson’s failure to produce the emails containing certain incident reports from the security guard that were relied upon and referred to in her oral testimony.

STANDARD OF REVIEW

10The parties agree that the standard of review applicable to the decisions under review is reasonableness. The Court of Appeal in Shaw v. Phipps 2012 ONCA 155, affirmed that the standard of reasonableness, with a high degree of deference, is to be applied to Human Rights Tribunal’s determinations of fact, and interpretation and application of human rights law and that this deference is owed in recognition of its specialized expertise. This deference is maintained unless the decision is not rationally supported.

ANALYSIS

Issue 1: Disproportionality of actions of the police officers

(a) Perumal’s Position

11Perumal argued that he was treated differentially by the police officers because of his race and that their actions towards Perumal were excessive when compared to the manner in which they treated the dog owners. Perumal submitted that in light of the fact that he was the one who called 911 because he was being harassed by the dog owners, the police upon arrival should have first spoken to him to obtain his account of events. Rather, they first spoke with the group of dog owners and first obtained their view. Perumal submits that the police officers were quick to judge him even before speaking with him. As a result, when the police spoke with him and he admitted that he had threatened to “eat” a dog owner’s dog, they jumped to the conclusion that he should be charged when, in fact, his comment was not to be taken literally but was made in jest. Perumal submits that race was a factor in their overreaction and that the police conduct was influenced by racial stereotypes.

12Perumal argued that a reasonable person hearing the statement about eating a dog, would not have interpreted it literally. If the dog owners had believed that they were threatened they, rather than Perumal, would have called 911.

13Perumal submits that the Tribunal erred by not considering the stereotypes often associated with racialized men that may have been a factor in the disproportionate and excessive response by the police officers towards him. When the police learned of his racial identity as an Indian man, they immediately inferred that he was a threat to the public and had an aggressive nature which would lead him to act upon the statement.

14Perumal submits that the Tribunal misapprehended the evidence by not taking judicial notice of the tendency to characterize normal communications from a racialized person as rude or aggressive. It was clear that upon meeting with Perumal, the police made the repeated comment that he was going to be charged with something without allowing him to fully provide his perspective of what transpired with the dog owners.

(b) Discussion

15In its analysis, the Tribunal acknowledged properly that it does not have the power to deal with or remedy general allegations of police unfairness towards an applicant. Rather, the applicant must establish discrimination on the basis of one of the grounds alleged in the Code. Therefore, allegations of police misconduct are not pertinent unless they can be connected to a prohibited ground of discrimination. The Tribunal indicated that there is no dispute that Perumal is an Indian man and that he was subjected to adverse treatment by the respondents because he was arrested and charged with criminal offences, whereas none of the dog owners were arrested and charged with criminal offences. The Tribunal correctly framed the main dispute as being whether the applicant’s race, colour, ancestry, place of origin and ethnic origin were a factor in the adverse treatment.

16The Tribunal also acknowledged and articulated the legal principles arising from the Court of Appeal decision in Peel Law Association v. Pieters 116 OR (3d ) 81 at paras. 111-114 to be applicable in racial discrimination cases. One such principle was that “racial stereotyping will usually be the result of subtle, unconscious police biases and prejudice”. Therefore, Perumal’s submission that the Tribunal failed to consider the stereotypes often associated with racialized South Asian men, such as himself, that may have impacted the respondents’ conduct is without merit.

17Further, the police officers were not aware of Perumal’s racial origin until they met with him. The text of Perumal’s 911 call does not mention Perumal’s racial background. Accordingly, they could not have had any preconceived beliefs in that regard before they saw him. The reason they first spoke with the dog owners was that they were encountered in the courtyard as the police officers were walking to attend at Perumal’s townhouse. The police did not speak to them first by design. Moreover, before their arrival, the police officers were aware of previous complaints that the applicant had threatened bodily harm to his neighbours and threatened to kill their dogs. Accordingly, prior to the events of September 12, 2010, there had been a history of complaints about Perumal’s threats towards the dog owners and that history informed the police officers’ conduct and assessment of the situation.

18Perumal failed to show more than a mere subjective suspicion and that is insufficient to establish a link between the adverse treatment and the Code protected grounds.

19In all, the Tribunal was alive to the applicable legal principle and the sequence of events as they unfolded and gave sufficient reasons to explain why Perumal had not proven his case on a balance of probabilities. In that respect, and having regard to the deference to be paid to the Tribunal, its decision cannot be said to be unreasonable.

Issue 2: Reasonable apprehension of bias in the manner in which the Tribunal weighed inconsistencies and assessed credibility

(a) Perumal’s Position

20Perumal submits that, in concluding that he and Duczmal were not credible witnesses, the Tribunal relied on minor and immaterial inconsistencies in their evidence which did not affect the core issues in the case. In particular, credibility findings were made as to their testimony with respect to the number of dog owners present. The Tribunal found that this inconsistency was a factor in concluding that Perumal and Duczmal were embellishing the facts and were not credible witnesses.

21In contrast, Perumal submits that the differing accounts provided by the police officers were not used negatively to assess their credibility. Perumal states that there were contradictions between the evidence of PC Osman and Sgt. Fraser. PC Osman stated that Perumal was calm and collected while Sgt. Fraser stated he was belligerent and threatening. Perumal submits that the Tribunal seized on irrelevant inconsistencies in his and Duczmal’s testimony but paid no attention to the contradictions in the testimony of the police officers and accepted their evidence in totality. He argues that the disparity in the level of scrutiny was unreasonable.

(b) Discussion

22The allegation of bias was raised with the Tribunal in Perumal’s Request for Reconsideration. The Tribunal set out the legal principles relating to such an allegation at para. 13 of the Reconsideration decision and pointed out that all Perumal was doing was raising disagreements with the findings in the Tribunal’s initial decision.

23A high degree of deference is accorded to the Tribunal on its assessment of credibility. The Tribunal need not deal with every piece of evidence in coming to its conclusion about credibility.

24In any event, it should be noted that the Tribunal’s findings of credibility were based on more than the inconsistencies in testimony. For example, at para. 45 of the Tribunal’s reasons, the Tribunal pointed out that Perumal and Duczmal wrote detailed statements about what had happened around the time that Perumal was arrested and charged, but when Perumal brought the Human Rights application approximately one year later, there were new factual allegations which were not in their original statements; and when they testified at the hearing, there were even more new factual allegations which were not in their original statements or in Perumal’s application. They did not explain why these new factual allegations were not in their original statements or the application and the Tribunal stated that its impression at the hearing was that they were embellishing the facts and even making things up to bolster Perumal’s case.

25The Tribunal also found it unbelievable that Perumal would not have retained or obtained a copy of the video for the hearing of its Human Rights application if it would have helped his case.

26By contrast, the Tribunal found Sgt. Fraser, PC Osman and PC Patterson to be credible witnesses and that their evidence was forthright and clear and not shaken on cross-examination.

27The Tribunal’s approach to assessment of credibility must be accorded heightened deference and it is not the role of this court to reassess the evidence: see FH v. McDougall 2008 SCC 53 at para. 72. There was a rational basis for the Tribunal’s findings of credibility and they should not be interfered with.

Issue 3: The Drawing of Adverse Inferences

(a) Perumal’s Position

28Perumal submits that the Tribunal erred or acted unreasonably in drawing four negative inferences against him which were central to dismissing his application, based on the erroneous premise that he failed to disclose the video to the Tribunal in a timely way.

29In contrast, Perumal submits that the Tribunal failed to draw an adverse inference from or even mentioning in its decisions, PC Patterson’s failure to produce two incident reports from the security guard (who did not testify) that were relied on and referred to in her oral testimony. These reports were contained in emails that the security guard sent to PC Patterson and PC Patterson testified that the incident reports had been deleted as she no longer possessed these emails. Perumal also submits that when the video was finally produced on the Reconsideration, the Tribunal did not retract most of the adverse inferences that were originally drawn.

30He complains that he was unreasonably accorded a different level of scrutiny than the police in the way adverse inferences were or were not drawn.

(b) Discussion

31The Tribunal held that no record exists demonstrating that Perumal filed the video with the Tribunal at the time that he stated. There is no electronic record of receipt and the video is not contained in the file. Parties are required to deliver a copy of the document to all other parties and this did not happen. Even when further written submissions were made by Perumal’s counsel, no mention of Perumal having filed the video was made. Accordingly, the Tribunal was reasonable in finding that it did not believe that Perumal filed the video with the Tribunal as he claimed after the hearing.

32When Perumal finally produced the video, he did not explain how it was obtained and why it could not have been obtained and produced earlier.

33With respect to any adverse inference that should have been drawn because the emails from the security guard were deleted by PC Patterson but referred to in her evidence, the Tribunal expressly stated that the emails were not being considered for the truth of their contents, but merely as information that formed part of PC Patterson’s knowledge. It was not unreasonable, in these circumstances, for the Tribunal to not draw any adverse inference.

34In any event, upon viewing the video in the Reconsideration, the Tribunal concluded that it did not demonstrate a basis for rejecting the testimony of the police officers as credible witnesses. The Tribunal acted reasonably in concluding that the video was not potentially determinative of the case.

35The issue to be decided by the Tribunal was whether Perumal’s race, colour, ancestry, place of origin or ethnic origin, were a factor in the decisions to arrest and charge him. There is nothing in the video which indicates that the Tribunal’s conclusion in this regard was unreasonable.

CONCLUSION

36For these reasons, we find that the Tribunal’s initial and Reconsideration decisions were reasonable. The application for judicial review is dismissed.

37Costs of the application are fixed at $8,500, all inclusive, as agreed by counsel. Accordingly, the applicant Perumal is to pay this amount to the police respondents within 30 days. No costs were sought by the respondent, the Human Rights Tribunal of Ontario.

Lederman J.

I agree _______________________________

Kiteley J.

I agree _______________________________

Croll J.