Saxon v. Amherstburg Police Services Board, 2011 HRTO 77

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Saxon

Applicant

-and-

Amherstburg Police Services Board and Tim Berthiaume

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: January 11, 2011

Citation: 2011 HRTO 77

Indexed as: Saxon v. Amherstburg Police Services Board

APPEARANCES

Linda Saxon, Applicant ) Self-represented

Amherstburg Police Services Board ) Edward Possilif, Counsel and Tim Berthiaume, Respondents )

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), raises allegations of discrimination on the basis of disability, martial status, and association with a person identified by a prohibited ground in the provision of goods, services and facilities.

2In a Case Assessment Direction dated August 16, 2010, the Tribunal directed that a Summary Hearing be held, pursuant to Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure. Rules 19A.1 and 19A.2 state:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

3The Case Assessment Direction directed the parties to address the following issues in their submissions at the Summary Hearing: (i) whether the allegations relating to incidents prior to 2009 fall outside the Tribunal’s jurisdiction because they took place outside the one-year time limit in s. 34 of the Code; (ii) whether the allegations allege discrimination in services within the meaning of the Code; and (iii) whether the allegations allege discrimination on the basis of marital status, disability, or association with a person identified by a prohibited ground within the meaning of the Code.

4The summary hearing was conducted by telephone conference call on January 10, 2011. I heard submissions from the applicant and from counsel for the respondents.

5For the reasons that follow, the Application is dismissed. I find that it has no reasonable prospect of success.

FACTUAL BACKGROUND

6The applicant’s spouse is employed by the organizational respondent, the Amherstburg Police Service Board. Great West Life (“GWL”) is the disability insurance carrier for the Town of Amherstburg and, as a result, for the Amherstburg Police Service Board (“Police”).

7The allegations contained in the Application relate to comments the respondents allegedly made to GWL in regards to the applicant’s spouse’s long-term disability (“LTD”) claim. The applicant alleges that she was discriminated against because the Police gathered information about her activities and provided incorrect information to GWL.

8In particular, she alleges that the respondents advised GWL:

a. that the applicant’s husband was involved in a cleaning business while he was in receipt of LTD benefits, although he claimed the business was the applicant’s; and

b. that the applicant and her husband are “activists” and are “always on about something”.

9The applicant also alleges that she is not confident that the Police will provide her with equal and unbiased police protection in the future. She argues that she has not received equal protection in the past. She acknowledges that allegations of past treatment are not part of her Application, although she argues they illustrate that she cannot count on fair and equal treatment in the future.

10There is a factual dispute as to whether the personal respondent or a representative of the Town of Amherstburg conveyed information regarding the alleged cleaning business.

11The respondents state that they were not involved in this exchange. In her submissions, the applicant referred to “documentary evidence” she says establishes the personal respondent took part in the conversation. However, she was not able to identify these documents and spoke only of “emails”.

12Pursuant to the Rules and because this is a Summary Hearing, the parties have not yet exchanged all relevant documents. Based on the materials before me, I am not able to resolve the factual dispute. However, this does not impede my ability to determine the issues relevant to the Summary Hearing.

ANALYSIS

13In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following observations regarding summary hearings:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

14In this case, the principle issue before me is whether there is a reasonable prospect of linking the allegations contained in the Application to a social area or prohibited ground contained in the Code.

15The applicant is not employed by the respondents. She is the spouse of an employee. She argues that the respondents provide services to her within the meaning of the Code. She is a member of the public and is entitled to law enforcement and protection services from the Police. She further argues that the Police have a general obligation to obtain and use her personal information lawfully.

16The respondents do not accept that law enforcement constitutes a service within the meaning of the Code. In any event, they argue that the applicant’s only allegations in regards to law enforcement are prospective. The applicant is speculating regarding future incidents of discrimination; she does not allege any actual failure to provide equal law enforcement and protection services.

17In my view, there is no reasonable prospect that the applicant’s allegations of future discrimination will succeed. The Tribunal’s mandate is remedial. It has no ability to address prospective acts of discrimination.

18The applicant further argues that gathering information about her and reporting it to GWL constitutes a law enforcement service. She argues that she was treated differently from members of the public because her husband claimed LTD benefits as a Police employee. But for her relationship with her husband, her personal information would not have been collected or shared.

19The respondents argue that, in providing information to GWL, they were acting in the capacity of employer. This role, they argue, is distinct from the Police’s law enforcement functions. The information about the applicant was not collected or shared with GWL in relation any charge or investigation. Rather, it was done in the context of an employment matter. The respondents argue that the applicant is seeking to raise privacy issues and defamation allegations before the Tribunal, which does not have the jurisdiction to address her complaints in this regard.

20While gathering of information may be an important part of the law enforcement services Police provide to the public, I do not think that all information obtained by the Police will necessarily engage its law enforcement functions. In this regard, the applicant’s arguments are contradictory. On the one hand, she claims that the gathering and sharing of information about her was part of the law enforcement services provided by Police to members of the public. On the other, she argues that, but for her husband’s employment relationship with the Police, the information would not have been gathered or shared.

21While the applicant clearly has concerns about how the respondents treated and communicated her personal information, these are not issues that can be resolved under the Code.

22I cannot conclude that there is a reasonable prospect of establishing a link between the allegations contained in the Application and the social areas or prohibited grounds contained in the Code. Even if the applicant’s allegations are made out, there is no reasonable prospect that the Application will succeed.

23Accordingly, the Application is dismissed.