Belso v. Regional Municipality of York Police Services Board, 2010 HRTO 1229

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Herve Belso

Applicant

-and-

The Regional Municipality of York Police Services Board

Respondent

DECISION

Adjudicator: Faisal Bhabha

Date: June 1, 2010

Citation: 2010 HRTO 1229

Indexed as: Belso v. Regional Municipality of York Police Services Board

APPEARANCES BY

Herve Belso, Applicant ) On His Own Behalf

The Regional Municipality of York ) Stephen Maio, Counsel Police Services Board, Respondent )

INTRODUCTION

1This Application, made under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination on the basis of family status and marital status. The Application originally named numerous organizational and personal respondents, arising out of the breakdown of the applicant's marriage and the division of assets.

2In a previous Interim Decision, 2009 HRTO 757, dated June 4, 2009 the Tribunal dismissed the Application as against all the respondents except the Regional Municipality of York Police Services Board (the Board). The Tribunal also denied the applicant's Request for a Tribunal-ordered Inquiry.

3The Application proceeded, then, against the Board. On January 5, 2010, the Tribunal issued a "Confirmation of Hearing" Notice to the parties, setting this matter down for a one-day hearing. On January 26, 2010, the respondent filed a Form 10 Request for Order During Proceedings seeking dismissal of the Application without a hearing on the basis that the applicant has failed to provide sufficient particulars capable of establishing a prima facie case of discrimination. The Tribunal refused to grant the respondent's request without a hearing, and reminded the parties of their obligations under the Rules to disclose particulars and arguably relevant documents in their possession.

4A hearing into the matter was held on May 6, 2010. The applicant presented his case, which consisted of his testimony only. Upon the conclusion of the applicant's case, I heard submissions from the parties regarding the respondent's request for summary dismissal on the basis that the applicant had failed to make out a prima facie case. This Decision finds in the respondent's favour, and dismisses the Application.

THE FACTS

5The facts giving rise to the Application arise in the context of the breakdown of the applicant's marriage, various Family Court proceedings and the disposition of the proceeds of the matrimonial home. The applicant alleges that after his share of the proceeds of sale of the matrimonial home were disposed, without his consent, by way of a Court Order, the applicant went to the York Region Police and asked them to investigate whether a criminal offence had occurred. His request was apparently refused on the basis that the situation was civil, not criminal, in nature.

6In his testimony, the applicant described his interactions with officers in the employ of the respondent. He testified that on November 19, 2008, he attended at York Region police headquarters. He spoke with the officer on duty, identified only by badge number 5334. The applicant explained that he wanted to speak to someone about theft and fraud, based on the sale of his house without his consent.

7The applicant told the officer that he believed a criminal miscarriage of justice had occurred as a result of collusion between his former spouse, her lawyer and the judge in the case. The applicant testified that the officer responded rudely, telling the applicant that he probably deserved what he got and that the police do not get involved in family law matters. The officer then ordered him to leave.

8The applicant followed up with a letter to Chief Armand La Barge, dated November 25, 2008, in which he detailed his concerns about the "illegal" sale of his matrimonial home and his suspicions of a criminal conspiracy involving the court, counsel and his ex-wife.

9Shortly after his letter to the Chief, the applicant received a phone call from Officer Suzanne Byrnes, who offered to meet with the applicant regarding his concerns. On December 9, 2008, the applicant testified he met with Officer Byrnes. He explained to her that he was not trying to fight the outcome of his family law dispute with his wife, bur rather to alert the police to what the applicant believed to be an incident of theft, extortion or fraud. The meeting lasted about an hour, and the applicant provided the facts and information relevant to the matter.

10The applicant testified that Officer Byrnes expressed compassion for the applicant's predicament, but told him that there was no basis to investigate the matter as it was beyond the jurisdiction of the police. In the internal report on the meeting, which was disclosed by the respondent, Officer Byrnes reported that she "explained to the complainant that the seizure of the asset was made as per a binding court order and thus there is no criminality involved."

11It does not appear the parties had any further contact.

POSITION OF THE PARTIES

12The applicant alleges that his treatment by York Region police was discriminatory on the basis of his family status and marital status. His argument is that the respondent's refusal to take his complaint seriously and investigate potential criminality arising out of the family law arena for the simple reason that it is a family law matter amounted to discrimination on a prohibited ground. The applicant framed his case in systemic terms, arguing he was adversely affected by a policy not to provide police services to complainants with family law issues. He believes people in his circumstances should have equal access to the police.

13The respondent denies it practises any policy with respect to its services that directly or indirectly discriminates on a prohibited ground. It argues that the applicant has failed to adduce any evidence of adverse treatment or discriminatory conduct by the respondent. Counsel pointed to the handling of the applicant's complaint as evidence that the applicant had a full opportunity to make his case to the police, and that the decision to not proceed with an investigation was properly within police discretion and was not motivated by any discriminatory considerations. Counsel argued that the police examined the information and documents produced by the applicant and found that there was insufficient basis to support the suspicions of conspiracy harboured by the applicant.

ANALYSIS AND DECISION

14The applicant bears the onus of establishing a prima facie case of discrimination, which can be described as a factual foundation for allegations which, if believed, provide a complete and sufficient basis for finding in the applicant's favour, before considering any responding evidence. Only after the applicant establishes a prima facie case does the onus shift to the respondent to provide a credible and rational explanation, or raise a statutory defence, to demonstrate on a balance of probabilities that the applicant's allegations do not amount to discrimination. See Chau v. Olymel S.E.C\L.P., 2009 HRTO 1386.

15It is not difficult to establish a prima facie case of discrimination. Yet, where an applicant clearly fails to establish a prima facie case, it is neither legally correct nor fair, just and expeditious to proceed with the application and to require the respondent to bear the onus of making out a reasonable defence. See Jagait v. IN TECH Risk Management, 2009 HRTO 779 at para. 19.

16The applicant's arguments must fail for two reasons. First, in general, even if I accept that the respondent refused to investigate the applicant's complaint because it involved a Family Court order, I am not persuaded that a policy not to interfere with family law matters necessarily gives rise to adverse effects discrimination on the basis of family status. I find it difficult to see what it is about the applicant's family status that makes him vulnerable, and how his status as a "family law litigant" triggers Code protection. On the facts of this case, I am not persuaded that a Code interest is implicated.

17Secondly, on the basis of the applicant's own evidence, I see no support for the claim that the applicant's complaint to police was in fact given short shrift. The applicant was afforded robust access to the police to make his case for an investigation. The fact that he was dissatisfied with the decision not to investigate does not on its face disclose a prima facie case of discrimination. The mere fact that the applicant alleges a discriminatory motivation behind the decision not to investigate does not make it true. There is nothing in the applicant's evidence, beyond his unsupported, bald claim, to support an inference that the respondent made its decision to not investigate the applicant's concerns based on discriminatory considerations.

18I therefore conclude that the applicant has failed to make allegations and give evidence that could enable me to make a finding of discrimination, regardless of the evidence that may or may not be introduced by the respondent. The applicant clearly considers himself a whistleblower and a victim of institutionalized corruption and abuse of power in the legal system. Whether or not any of his claims of unfairness have any basis in fact, his failure to establish a nexus to the Code makes it impossible to find in his favour.

19Accordingly, the Application is dismissed.