Kleiman v. Vancouver Police Board, 2024 BCHRT 345
Date Issued: December 18, 2024
File: CS-005374
Indexed as: Kleiman v. Vancouver Police Board, 2024 BCHRT 345
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Bram Kleiman
COMPLAINANT
AND:
Vancouver Police Board
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
On his own behalf: Bram Kleiman
Counsel for the Respondent: David T. McKnight & Naomi J. Krueger
I. INTRODUCTION
[1] On October 22, 2021, Bram Kleiman filed a services complaint based on mental disability under s.8 of the Human Rights Code [ Code ], against the Vancouver Police Board [ VPB ].
[2] The issue before me is whether to accept the Complaint against the VPB. I make no findings regarding the merits of this complaint.
[3] For the reasons that follow, the complaint is accepted for filing against VPB, in part, as a continuing contravention of the Code : s. 22(2).
II. PRELIMINARY MATTER
[4] The VPB applied to have the Tribunal disregard a new allegation from a police incident on November 15, 2022, because it was late filed in a Form 3 amendment received in April 2024. While likely disagreeing with the VPB that the timeliness of the amendment runs from the date of the further allegation and not from the date of the initial complaint, it is unnecessary for me to render a decision on whether to amend the complaint to add this further allegation in this decision. The screening of Mr. Kleiman’s amendment to add the November 15, 2022, allegation will occur in a separate decision by the Tribunal.
[5] I have decided, however, to consider the further complaint details provided in both Mr. Kleiman’s Form 3 and his Form 5 received in April 2024. Both documents provide useful details in response to VPB’s argument that his complaint lacks information sufficient to form arguable contraventions of the Code . I note the VPB does not appear to take issue with the provision of these details, focusing instead on the amendment to add the November 15, 2022, allegation and Mr. Kleiman providing new reasons for late filing his complaint that could have been made earlier. In circumstances where Mr. Kleiman was replying to the VPB’s submission that his initial complaint was speculative because it lacked the necessary details, I found it reasonable to review the further details provided. Finally, in allowing Mr. Kleiman’s further details I note the VPB had an opportunity to respond to them in its application to make a further submission if it believed they should not have been submitted.
III. BACKGROUND
[6] The question of whether Mr. Kleiman’s complaint contains arguable contraventions of the Code that constitute a continuing contravention is the central issue in this decision. As such, it is necessary for me to review the allegations in some detail below before entering my analysis.
[7] Mr. Kleiman has Autism Spectrum Disorder [ ASD ]. He broadly alleges that his ASD traits impact his ability to interact with police and the public generally. This includes having a low awareness of how he presents himself physically, visually and emotionally. For example, he says that he:
· dresses in dark, comfortable and well-worn clothing to help with his anxiety but doing this may not fit general societal expectations
· carries a “kit” or backpack that gives him a sense of security, which again helps him with anxieties, but may not fit general societal expectations
· has a “resting face” that looks “hostile” – especially when he is concentrating on something
· is oblivious to external stimuli when concentrating on a task or activity
[8] Mr. Kleiman further alleges that his ASD results in a lack of social perspective-taking skills necessary to recognize generally acceptable social practices. For example, he says that:
· his “natural” manner of speaking is too blunt and assertive
· his responses when confronted are too blunt and assertive
· he has poor judgment of personal space in that he can put him either too close or too far away from others
Mr. Kleiman further alleges that he lacks the ability to recognize subtle feedback and other non-verbal cues from people. He also alleges that he lacks the ability to process situations and respond in a timely manner.
[9] Sometime in 2014, Mr. Kleiman alleges VPB police attended his home after receiving a report that he assaulted another person at a nearby convenience store. He says a police officer ran at him and kneed him in the face coming from out of nowhere during this incident. He alleges the way he was treated was due to his ASD. Mr. Kleiman alleges a neighbour intervened and the police then went to the store to learn the report of the assault was untrue.
[10] On January 8, 2018, Mr. Kleiman alleges VPB police attended his house and got him to come outside after claiming they just wanted to talk to him. However, when he came outside, he alleges the officers attacked, handcuffed and arrested him.
[11] On April 13, 2019, Mr. Kleiman alleges VPB police attended his home on a “wellness check” and proceeded to charge into the house with guns drawn, despite having been provided previous documentation regarding how to handle him as a person with ASD. Mr. Kleiman specifically alleges his lawyers filed documentation with the VPB indicating he has autism and set up a plan for them to talk to them instead of approaching him to avoid triggering him. On this occasion, Mr. Kleiman alleges police ended up shooting him and assaulting him because he did not respond in the expected “neurotypical fashion”. This resulted in him allegedly being arrested, charged and convicted with assaulting a peace officer causing bodily harm.
[12] On February 15, 2020, Mr. Kleiman alleges VPB police attacked him outside the Vancouver Convention Centre, resulting in multiple injuries. He says that while police were yelling at him and attacking him, he was unable to process what they were doing or wanted from him because he was fixated in getting a refund for the Fan Expo industry trade show. Mr. Kleiman alleges that his lack of awareness was related to his ASD related symptoms.
[13] On February 22, 2020, Mr. Kleiman alleges VPB police attended Science World where he was participating in a Pokeman Go community day. When police arrived, he alleges being in a state of hyper fixation while playing the game due to his ASD. Mr. Kleiman alleges the police misperceived and misinterpreted his ASD appearance and behaviours and arrested him. While the arrest did not result in any charges, he claims it was extremely damaging to his mental well-being such that he was unable to function for days afterwards.
[14] On multiple unspecified dates in 2021, Mr. Kleiman alleges VPB police attended his house on “bogus calls” to harass and antagonize him. He says these events were extremely triggering, causing him to have panic attacks and anxiety. Mr. Kleiman alleges he no longer felt safe in his home due to these incidents.
[15] On February 7, 2021, Mr. Kleiman alleges VPB police attacked him in an alley resulting in him sustaining multiple stab wounds and other injuries. That day, he also claims to have been hyper fixated while playing Pokemon Go. He alleges the police reaction was likely related to misperceived and misinterpreted ASD behaviours, such as his concentrated eye gaze and atypical facial expressions while engaged in the game.
[16] On July 18, 2021, Mr. Kleiman alleges VPB wrongly assessed his actions while playing Pokemon Go at a local park after responding to reports that he was attempting to kidnap children. He was then arrested. Once again, he alleges the police misinterpreted his ASD behaviours as criminal. He further alleges the police failed to contact his lawyer regarding complaints made about him to avoid direct confrontations that result in him being arrested because of his ASD behaviours.
IV. ANALYSIS AND DECISION
[17] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62 , 2003 BCHRT 39.
[18] The complaint was received on October 22, 2021. To comply with the one-year time limit under s. 22(1) of the Code , the alleged act of discrimination had to occur on or after October 22, 2020.
[19] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code , s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code , and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23; School District at para. 50.
[20] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204 at para. 14.
[21] I start by considering when the latest allegation of discrimination occurred in this case. As part of the Tribunal’s screening process, it must be satisfied there are allegations which, if proven, could contravene the Code : Chen v. Surrey (City) , 2015 BCCA 57. In this case, Mr. Kleiman must set out facts supporting that the VPB’s conduct had an adverse impact on him regarding the services provided, and that his mental disability was a factor in the adverse impact: Moore v. British Columbia (Education) [ Moore ], 2012 SCC 61 at para. 33.
[22] The VPB argues Mr. Kleiman has not plead any facts that can establish a nexus between his protected characteristics and the VPB’s response to him during various interactions that he alleges contravene the Code . The VPB argues that Mr. Kleiman has not sufficiently identified any autistic behaviour observed by the VPB police such that they knew or should have known was related to his ASD. The VPB argues that Mr. Kleiman has not plead any facts that take his allegations out of the realm of conjecture.
[23] As noted above, Mr. Kleiman provided more details of his ASD behaviours in reply to VPB’s submission that he had not made out any arguable allegations of discrimination. From my review of the Complaint information, including these further details, I disagree with the VPB’s assessment regarding that lack of allegations linking the harms alleged to Mr. Kleiman’s mental disability. In my view, Mr. Kleiman is alleging a wide variety of behaviours related to his ASD that are significantly different from behaviours normally expected when people encounter the police. With reference to the detailed descriptions of many of these alleged behaviours generally and those highlighted for each specific event, I disagree that Mr. Kleiman’s allegations do not include behaviours that were known or ought to have been recognized by the VPB as ASD related behaviours. Mr. Kleiman alleges a range of abnormal ASD related behaviours, such as atypical facial expressions and concentrated eye gaze, when confronted by police during both the timely and untimely events in question. In my view, his complaint information establishes two timely allegations on February 7, 2021, and July 18, 2021, which claim that his ASD behaviour was a factor in the harms alleged.
[24] I am similarly satisfied that Mr. Kleiman has made out arguable contraventions of the Code in relation to three other events where he had contact with VPB police on April 13, 2019, February 15, 2020, and February 22, 2020. On these occasions Mr. Kleiman provided details describing distinct ASD behaviour alleged to be a factor in the harms he describes at the hands of police. This includes slow processing of what was happening or not being able to understand and react to what police were saying to him during traumatic incidents, being completely distracted by tasks despite police presence, and a variety of other seemingly inappropriate responses / failures to respond appropriately.
[25] Regarding the allegation that VPB police attended his home on multiple occasions in 2021 to harass and antagonize him, I am not satisfied the Mr. Kleiman has set out these events, in sufficient detail to establish any further arguable contraventions of the Code in that year. Without dates for these events, details of what occurred, including how Mr. Kleiman reacted and the harms he allegedly suffered, in my view his information lacks sufficient details to establish any further arguable contraventions.
[26] Finally, I have considered whether Mr. Kleiman’s allegations in 2014 and 2018 are arguable contraventions of the Code . While recognizing the description of these events included more details about what happened, I am not satisfied they include sufficient details of the ASD behaviours he exhibited to establish the necessary link between the harms alleged and Mr. Kleiman’s ASD behaviour to form any arguable contraventions.
[27] Having found two arguable timely allegations and three seemingly out of time allegations in this case, it is now necessary to determine whether the Complaint is a continuing contravention based on the timely allegations in 2021, tethering in the 2019 and 2020 allegations as timely. Put another way, I must now consider whether a continuing contravention exists here. This analysis starts with a consideration as to whether the allegations are of a similar nature.
[28] The VPB’s submissions do not focus to any great extent on the character of the allegations. Mr. Kleiman submits his allegations are similar in that they all involve interactions with police resulting in harms related to their misperception of his ASD behaviour. I agree with Mr. Kleiman that the allegations in question are similar in nature since they all involve his interactions with VPB police with him being harmed for reasons related to the police allegedly failing to perceive his behaviours as ASD related. For the purposes of this preliminary decision, I am satisfied the allegations are of a similar nature sufficient to indicate the existence of a continuing contravention of the Code .
[29] The next question is whether a significant gap exists between the latest timely allegation in February 2021 and the out of time allegations in February 2020 and April 2019 such that they are not in succession and do not form a continuing contravention. As noted above, the focus of the VPB’s submissions on continuing contravention was the issue of arguable contraventions existing. Mr. Kleiman submits the gaps in events are explainable in this case because the allegations occurred only when he interacted with police. He says these interactions did not occur regularly, but only when they sought him out on the various occasions listed in 2019, 2020 and 2021.
[30] While a gap of approximately one year between the February 2020 and February 2021 allegations is a lengthy gap between allegations for the purposes of determining the existence of an arguable continuing contravention, I am satisfied that Mr. Kleiman has explained the gap such that it is not significant. I accept his evidence that he did not go out seeking interaction with the police, and as a result his contact with the VPB occurred sporadically creating allegations of discrimination on the dates when police were called out to interact with him. Here, a gap of a year occurred between VPB being called out to deal with Mr. Kleiman based on them receiving a call about a problem with him. In these circumstances, I do not find the gap in question was significant and conclude the allegations occurred in succession.
[31] Overall, I am satisfied Mr. Kleiman has set out five arguable contraventions of the Code , two of which are timely. These two allegations form a continuing contravention with the three seemingly out of time allegations as they are all of a similar nature and occurred in succession because the gaps between them are explainable. Having found the Complaint is a timely continuing contravention of the Code it is, therefore, unnecessary for me to determine whether it is in the public interest to allow any late filed allegations to proceed.
V. CONCLUSION
[32] For these reasons, the Complaint is accepted, in part, for filing as a continuing contravention of the Code : s. 22(2), which is limited to five allegations occurring on April 13, 2019, February 15 and 22, 2020, February 7, 2021, and July 18, 2021.
Steven Adamson
Tribunal Member