HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Vivienne Thompson
Applicant
-and-
York Regional Police Services Board, Al Bonner, Kerry French and Danielle Beaulieu
Respondents
DECISION
Adjudicator: Dale Hewat
Indexed as: Thompson v. York Regional Police Services Board
APPEARANCES BY
Vivienne Thompson, Applicant ) On her own behalf
York Regional Police Services Board, ) Stephen Maio, Counsel Al Bonner, Kerry French and Danielle Beaulieu, ) Respondents )
Background and Procedure
1This is an Application filed on February 25, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on June 25, 2007 and abandoned upon filing this Application with the Tribunal.
2The applicant alleges that the respondents discriminated against her on the basis of race, ethnic origin and reprised against her with respect to a dispute with a neighbour and subsequent criminal proceedings. The hearing was conducted on December 8, 2009.
3Two Case Assessment Directions were issued with respect to the Application. The first, issued by the Tribunal on November 4, 2009, addressed the lack of particulars and the failure of the applicant to file a statement of additional facts and remedies.
4The second, issued on November 26, 2009, addressed the applicant’s Request for an extension of time, particulars and production of documents. The Tribunal noted the applicant had been required to provide particulars of her complaint and documents by late August and had not done so. The applicant had also failed to comply with the directions made in the first Case Assessment Direction. In the circumstances, the applicant’s requests for an extension of time, particulars and production of documents were denied.
The Hearing
5At the hearing the respondents pursued their Request to dismiss the Application for failure to establish a prima facie case of discrimination or, alternatively, for failure to comply with the Tribunal’s Rules.
6Following my questioning of the applicant and after hearing submissions from the parties, I made an oral ruling dismissing the Application on the basis that it failed to establish a prima facie case of discrimination against any of the respondents. The following are my reasons.
Does the Application Disclose a Prima Facie Case?
7The Tribunal’s approach to considering a request to dismiss an Application because it does not disclose a prima facie case was reviewed in Jagit v. IN TECH Risk Management, 2009 HRTO 770:
18The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.
19It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions. [emphasis added]
8The Tribunal has also stated that it may consider the question of no prima facie case at a preliminary stage without hearing the evidence of the applicant using the same threshold test of whether the applicant’s allegations, if accepted to be true, would be enough to establish a violation of the Code. See: Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 7.
9In Chau v. Olymel S.E.C/L.P., 2009 HRTO 1386, at para. 29, the Tribunal also comments that a respondent should not be required to respond to a case where it does not know the case to be met or to require a respondent to defend allegations that do not raise discriminatory conduct:
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.
The Allegations
10The applicant’s allegations were summarized by the Tribunal in the first Case Assessment Direction. The applicant alleges that the respondents have reprised against her and her family for previous complaints made against the corporate respondent and another apparently unrelated institution. The applicant alleges a number of incidents of unfair and inappropriate treatment by the respondents and others. Some of these incidents have been particularized and others not. A summary of the allegations in the human rights complaint forming the subject matter of this Application is set out here:
a. The applicant alleges that she was arrested on May 3, 2007 and jailed for one week. The applicant alleges that she was falsely accused by respondent French of videotaping a neighbour and that she has been prevented from returning to her home since that time.
b. The applicant also alleges that she was arrested in August 2006 at night by six officers and accused of harassing a neighbour. The applicant alleges that she missed one of 20 court dates in respect of this arrest and was detained by respondent Bonner from 10:30 a.m. to the next day because she was told, she had reported too late to attend court.
c. The applicant alleges that all of her complaints against her neighbour have been treated with scorn by the police. The applicant alleges that when she attended Division 12 to lay a counter-charge against a neighbour the officer at the desk yelled at her three times to get out.
d. The applicant further alleges that:
i. she has been told by the police that vandalism to her property was an accident and that she was lying about other reports.
ii.that the police can’t stop a neighbour attempting to blow up her house by turning the gas lever on.
iii.that the police can’t stop a neighbour flooding her property by releasing a hot tub into her yard.
iv.that a neighbour is allowed to direct 22 light bulbs cameras at all accessible windows.
v.that on one call police officers told the applicant to leave a neighbour alone and told the neighbour to keep doing what she was doing.
vi.that officers have refused to identify themselves, stating the call was recorded.
e. The applicant also alleges that an unidentified person seen running away from her gas box with pliers in hand has a twin brother who is a police officer.
f. The applicant also alleges that a neighbour and police related friends have burned wooden crosses under her bedroom window.
g. The applicant also makes allegations with respect to an incident with a friend of a neighbour on July 29, 2006 at 3:00 a.m. It is not clear how these allegations relate in any way to the other allegations involving the respondents.
h. The applicant also makes allegations respecting a “federal prosecutor” and the court. These allegations appear to be unrelated to the complaint as it relates to the respondents.
11At the hearing, I advised the applicant that she needed to explain specifically what actions by York Regional Police or any of the personal respondents were in her view discriminatory. I also explained that I could only deal with the allegations raised in her original human rights complaint. I advised the applicant that I was required to review her allegations and assuming I believed them to be true, determine whether any of them raised a possible violation of the Code.
12In response to my questions, the applicant claimed that the respondents have punished and abused her and have maintained surveillance on her. She alleged that a man, whom she believes is Detective Ryan of the York Regional Police, sat naked in her neighbour’s hot tub and together with her neighbour yelled slanderous remarks about the applicant and her family’s past affiliation with the Police. Specifically, the applicant alleged that comments were made about her son and that the fact that he would not get away with assaulting police officers.
13She also mentioned that in the past, her neighbour had parties that were viciously racist and that some of the people involved engaged in conduct that was demoralizing to her family. Mention was made of the neighbour burning crosses on her property in the applicant’s view. The applicant also alleged that she believed her neighbour was affiliated with the police and had influence over the police resulting in the applicant being forced from her home. The applicant also stated she believed that a twin brother of a York Region police officer came to the her front door and grinned at her in a menacing way.
14The applicant expressed great disappointment with how she and her family have been treated by the respondents. She explained that she believed that she was denied disclosure of information about the actions of the police and, in particular, about whether the man in the hot tub was Detective Ryan, as she alleged. The applicant also mentioned that she had been diagnosed as delusional and that this medical diagnosis was used against her in all of her attempts to deal with her claims.
15The respondents replied that full disclosure was made available to the applicant throughout all of her prior court proceedings. It was submitted that the applicant had raised very few allegations against York Regional Police and none against the named personal respondents. From their perspective, the applicant’s allegations relate to an unfortunate dispute with her neighbour, which resulted in criminal proceedings in which the applicant plead guilty, and the psychiatric diagnosis mentioned by the applicant. On the basis of the applicant’s failure to particularize her complaint, no details with respect to the personal respondents, and allegations pertaining to third parties over whom the respondents had no control, the respondents argued that this Application fell squarely with the tests to establish no prima facie case.
Conclusion
16On the basis of the applicant’s allegations set out in her original complaint and the limited information that she provided at the hearing, I find that the applicant has failed to establish that the facts, if believed to be true, would constitute a finding of discrimination in absence of an answer from the respondents. Based on the information provided, there did not appear to be any allegations noting any connection or involvement of the personal respondents in this matter. The main allegations related to alleged offensive conduct and comments by the applicant’s neighbour. The applicant also made general claims against York Regional Police and specific allegations against a person she believed to be Detective Ryan and his twin brother. When asked to provide more detailed information about examples of discriminatory conduct by the respondents, the applicant could not provide additional specific information that might assist in her establishing a prima facie case of discrimination.
17A review of each of the allegations summarized at paragraph 10 of this Decision also does not persuade me that there is any connection to the applicant’s claims of discrimination. These allegations relate to supposed statements made by various York Regional Police Officers that relate to the applicant being arrested due to her interaction with her neighbour, concerns about vandalism by her neighbour and the respondents’ failure to stop such conduct. In addition, vague assertions were made about police related friends and relatives taking part in burning crosses and possibly vandalizing the gas box outside her home. The applicant also raised issue with previous criminal court proceedings and a psychiatric analysis that have no bearing on this Application.
ORDER
18The Application fails to establish a prima facie case of discrimination. Accordingly, the Application is dismissed.
Dated at Toronto, this 25th day of February, 2010.
“Signed by”
Dale Hewat
Member