C.G. v. Timmins Police Service, 2013 HRTO 1268

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.G.

Applicant

-and-

Timmins Police Service, Kapuskasing Ontario Provincial Police, Timmins and District Hospital, North Eastern Ontario Family and Children’s Services

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: July 22, 2013

Citation: 2013 HRTO 1268

Indexed as: C.G. v. Timmins Police Service

APPEARANCES

C.G., Applicant Self-represented

Timmins Police Services, Respondent Elizabeth Montpetit, Counsel

Kapuskasing Ontario Provincial Police, Respondent Fatema Dada, Counsel

North Eastern Ontario Family and Child Services, Respondent Justin Ellert, Counsel

Timmins and District Hospital, Respondent Jodi Russell, Representative

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services, goods and facilities because of disability, family status and association with a person identified by a prohibited ground of discrimination.

2In Interim Decision 2013 HRTO 43, dated January 10, 2013, the Tribunal dismissed the Application as against “Ontario Court of Justice Timmins c/o Justice Ralph Carr and Justice Lambert” on the basis of judicial immunity. By Case Assessment Direction, also dated January 10, 2013, the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, because it has no reasonable prospect of success.

3The Application is centred on two incidents. The first incident occurred on May 4, 2011, when the respondent North Eastern Ontario Family and Children’s Services (“NEOFACS”), assisted by officers of the Timmins Police Service, apprehended one of the applicant’s children because it believed the applicant was living with a friend, SC, who had recently been released from hospital following an alleged suicide attempt and because SC’s son was also living part time with the applicant and was alleged to be a “sexual perpetrator”. The applicant asserts that neither of these individuals actually resided with her. The applicant also asserts that the police assaulted her during this incident and that both the Timmins Police Service and NEOFACS obstructed her complaints about this misconduct.

4The second incident occurred on July 12 and 13, 2013. The applicant attended with her daughter at the emergency department of the Timmins and District Hospital (the “Hospital”) to seek care for her daughter. The applicant stated that after waiting for several hours the doctor refused to treat her daughter and directed the applicant to wait for several more hours until another doctor arrived. The applicant stated that when she indicated that she would seek treatment elsewhere, the doctor threatened to call Child and Family Services (i.e., NEOFACS). The applicant decided to leave, and the doctor reported to NEOFACS, advising them that the applicant denied health care to her daughter and suffered from an obvious mental health problem. The applicant states that she attended with her daughter at another area hospital where her daughter received treatment. They then proceeded to the applicant’s mother’s home to rest.

5Sometime later, a child protection worker employed by NEOFACS and officers of the Ontario Provincial Police (the “OPP”) arrived and apprehended the applicant’s daughter because of the doctor’s report that the applicant denied her daughter health care and because the doctor said she had mental health issues

6The applicant states that she attended at the NEOFACS office the next day, accompanied by her mother and brother, to gather information about the situation. Before they could meet with NEOFACS personnel, they noticed three police cruisers and a van arrive very quickly. They decided to leave because they concluded that the police were there to detain the applicant. The applicant states that she learned that the OPP “flagged” her as mentally unstable in their system. The applicant states that the fathers of her children, the Office of the Children’s Lawyer, NEOFACS and the police fabricated affidavits stating that the applicant had a mental illness. On the strength of these affidavits, the Court granted NEOFACS’ request to place the applicant’s child with the child’s father.

Analysis and Decision

Reasonable Prospect of Success

7Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

8In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-10:

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.

9The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as disability or family status. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

10At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

11The Tribunal has noted that the Code is concerned with substantive discrimination and does not aim to eliminate all differences in treatment. Rather, the purpose of the Code is to address discrimination, in the form of disadvantage, prejudice and stereotyping, on the grounds set out in the Code. See C.M. v. York Region District School Board, 2010 HRTO 1494 at paragraph 4. Not all actions that may have an impact on people identified by a ground constitute substantive discrimination.

12The apprehension of the applicant’s child was conducted pursuant to the Child and Family Services Act, R.S.O 1990, c. C.11 (the “CFSA”). The sections of the CFSA that are pertinent to this matter are as follows:

Warrants, orders, apprehension, etc. Application

40. (1) A society may apply to the court to determine whether a child is in need of protection.

Warrant to apprehend child

(2) A justice of the peace may issue a warrant authorizing a child protection worker to bring a child to a place of safety if the justice of the peace is satisfied on the basis of a child protection worker’s sworn information that there are reasonable and probable grounds to believe that,

(a) the child is in need of protection; and

(b) a less restrictive course of action is not available or will not protect the child adequately.

(6) A child protection worker authorized to bring a child to a place of safety by a warrant issued under subsection (2) or an order made under clause (4) (d) may at any time enter any premises specified in the warrant or order, by force if necessary, and may search for and remove the child.

Apprehension without warrant

(7) A child protection worker who believes on reasonable and probable grounds that,

(a) a child is in need of protection; and

(b) there would be a substantial risk to the child’s health or safety during the time necessary to bring the matter on for a hearing under subsection 47 (1) or obtain a warrant under subsection (2),

may without a warrant bring the child to a place of safety.

Police assistance

(8) A child protection worker acting under this section may call for the assistance of a peace officer.

Right of entry, etc.

(11) A child protection worker who believes on reasonable and probable grounds that a child referred to in subsection (7) is on any premises may without a warrant enter the premises, by force, if necessary, and search for and remove the child.

Duty to report child in need of protection

72. (1) Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall forthwith report the suspicion and the information on which it is based to a society:

73. The child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s,

i. failure to adequately care for, provide for, supervise or protect the child, or

ii. pattern of neglect in caring for, providing for, supervising or protecting the child.

2. There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

i. failure to adequately care for, provide for, supervise or protect the child, or

ii. pattern of neglect in caring for, providing for, supervising or protecting the child.

3. The child has been sexually molested or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child.

4. There is a risk that the child is likely to be sexually molested or sexually exploited as described in paragraph 3.

5. The child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment.

(3) A person who has a duty to report a matter under subsection (1) or (2) shall make the report directly to the society and shall not rely on any other person to report on his or her behalf.

Offence

(4) A person referred to in subsection (5) is guilty of an offence if,

(a) he or she contravenes subsection (1) or (2) by not reporting a suspicion; and

(b) the information on which it was based was obtained in the course of his or her professional or official duties.

Same

(5) Subsection (4) applies to every person who performs professional or official duties with respect to children including,

(a) a health care professional, including a physician, nurse, dentist, pharmacist and psychologist;

(c) a peace officer and a coroner;

The applicant’s allegations must be considered in the context of the child protection regime created by the CFSA. As noted above, Section 72 of the CFSA imposes a duty to report a child in need of protection and sets out a broad range of circumstances in which this duty will arise. When there are reasonable and probable grounds to believe that a child is in need of protection section 40(2) of the CFSA authorizes a child protection worker to apprehend a child with a warrant and section 40(7) permits apprehension without a warrant in certain circumstances. Section 40(8) permits a child protection worker to seek the assistance of police and section 40(11) permits a child protection worker to enter premises without a warrant to remove a child.

Apprehension in May 2011

13The applicant alleges that NEOFACS apprehended her child in May 2011 because SC was living with her, had attempted suicide and that his son was a sexual perpetrator. The applicant submitted that none of these allegations are true and that NEOFACS apprehended her child because the applicant associated with a person perceived to have a disability, i.e., SC, who was perceived to suffer from mental illness. Under the CFSA, NEOFACS may apprehend a child, with or without a warrant depending on the circumstances, when it has reasonable and probable grounds to believe the child is in need of protection. This belief could include circumstances where a child protection worker believed a child risked harm by being exposed to a person suffering from mental health issues. In the context of the child protection regime established under the CFSA, this does not amount to discrimination under the Code. In this case, the applicant asserts that NEOFACS acted on incorrect or false information. However, the fact that NEOFACS may have been wrong in its assessment does not render its actions discriminatory. The Tribunal has no role is assessing the correctness of actions taken under the CFSA. Consequently, I find that this allegation has no reasonable prospect of success.

14The Tribunal also has no role in addressing police misconduct, unless it can be connected to a prohibited ground of discrimination. The police’s role in this incident was to assist the child protection worker from NEOFACS in apprehending the applicant’s child. The applicant states that in the course of assisting NEOFACS the police officers assaulted her and that both the Timmins Police and NEOFACS obstructed her attempts to address this alleged misconduct. The applicant made no submissions regarding how this behaviour was connected to a prohibited ground of discrimination. Consequently, the applicant’s allegations regarding the conduct of the Timmins Police officers on May 4, 2011 have no reasonable prospect of success.

15Similarly, the applicant alleged that the respondents violated her privacy rights in various ways throughout her submissions. Privacy is an important issue, to be sure. The Code, however, is not concerned with privacy issues; therefore, these allegations are outside of the Tribunal’s jurisdiction.

Apprehension in July 2012

16The applicant provided lengthy and detailed written submissions describing her interactions with Dr. U in the early morning hours of July 12, 2012, which are the basis for her claim against the Hospital. The applicant’s description of Dr. U alleges that he acted in a highly unprofessional manner, which included denying medical treatment to her daughter. The applicant alleges that Dr. U treated her in this manner because he perceived her to be mentally ill. During her oral submissions, I asked the applicant what the evidence was that indicated the doctor denied treatment to her daughter because he perceived the applicant to have a mental illness and the applicant replied to the effect that there could be no other reason for the denial. This is a bare assertion. The applicant did not point to any other evidence that would connect Dr. U.’s actions to a perception that the applicant is mentally ill. Without such a connection these allegations have no reasonable prospect of success.

17The applicant left the Hospital to go to Anson Hospital in Iroquois Falls and the applicant states that her daughter was admitted there at about 9:30 a.m. Dr. U. had by this time called NEOFACS to advise of his concern that the applicant had withheld medical treatment from her daughter. The Hospital submitted that Dr. U. called Anson Hospital at about 9 a.m., before the applicant and her daughter arrived. The applicant also pointed to excerpts from the affidavit evidence of LSJ and HP, both NEOFACS employees, tendered in a related court proceeding, in which they describe the events leading to the apprehension of the applicant’s child. The affidavits indicate that Dr. U. stated to both NEOFACS employees and to LJ, the father of the applicant’s daughter, that the applicant appeared to be mentally unwell and presented as having a psychotic breakdown. Pursuant to section 72 of the CFSA, Dr. U. was obliged to report to NEOFACS if he considered the applicant’s daughter to be in need of protection. The fact that his assessment included his perception that the applicant was suffering from a mental illness does not make his actions discriminatory. The applicant alleges that Dr. U. reported to NEOFACS to cover his own misconduct and that he could have ascertained whether she brought her daughter to Anson Hospital. However, these allegations, if true, would render Dr. U.’s behaviour fraudulent or perhaps negligent, but not discriminatory. Expressing his view of the applicant’s behaviour to LJ may have been indiscrete, but does not in my view amount to discrimination. In particular, the applicant pointed to no evidence that expressing this opinion to LJ had adverse consequences for the applicant. In these circumstances, I find that the applicant’s allegations against the Hospital have no reasonable prospect of success. I note that the applicant complained to the College of Physicians and Surgeons about this incident, and, on the material before me, it appears that the College did not find the complaint to be substantiated.

18The affidavit material submitted by the applicant indicates that NEOFACS apprehended the applicant’s daughter based on Dr. U.’s report that the applicant withheld medical treatment from her daughter and appeared to be mentally unwell. Accordingly, NEOFACS had reasonable and probable grounds that the applicant’s daughter was in need of protection and apprehended the child, apparently without a warrant, pursuant to section 40(7) of the CFSA. In doing so, NEOFACS was carrying out its child protection mandate under the CFSA, which does not amount to discrimination. Again, whether Dr. U’s report was accurate is not within the ambit of the Tribunal to determine. In my view, the allegation that NEOFACS’ apprehension of the applicant’s daughter on July 12, 2012 violated the Code has no reasonable prospect of success.

19The same affidavits indicate that a child protection worker, MD, attended at the applicant’s known address in Kapuskasing with an OPP officer, Constable P. The affidavits indicate that Constable P expressed his view, based on previous experience with the applicant, that the applicant struggles with a mental health problem. The affidavits also indicate, in describing the events leading to the apprehension of the applicant’s child, that Constable P stated that the applicant had been “flagged” in the OPP’s system as mentally unstable. In my view, neither of these facts amount to discrimination. The applicant pointed to no evidence that Constable P’s comment had any substantive effect on her. At the time Constable P. allegedly made the comment, he was assisting NEOFACS in the apprehension of the applicant’s child because of Dr. U.’s report. Accordingly, there is no evidence that Constable P.’s comment led to the apprehension or the applicant’s child, which, in fact, the applicant attributes to Dr. U.’s report. The applicant speculated that she could be denied employment with the OPP because of Constable P.’s opinion of her, assuming she applied for such employment in the future. Such speculation is not a basis for proceeding with an Application. Constable P.’s comment may have been gratuitous and his assessment may have been incorrect, but this in my view does not amount to discrimination under the Code. Consequently, I find that this this allegation has no reasonable prospect of success.

20Similarly, the fact that the OPP may have “flagged” or identified the applicant as someone perceived to suffer from a mental illness is not necessarily discriminatory. This information could be used in a discriminatory manner if the applicant was subject to differential treatment in police services because of a perceived mental illness. On the other hand, the information might simply remind officers to act with care and sensitivity when dealing with the applicant. In this case, the applicant pointed to no evidence that this evidence resulted in differential treatment regarding police services. The apprehension of the applicant’s daughter on July 12, 2012 was initiated by NEOFACS, following Dr. U.’s report, and the OPP assisted NEOFACS. On the face of the affidavit material, it appears that Constable P. noted that the OPP “flagged” the applicant as mentally unstable in the course of assisting NEOFACS. The applicant pointed to no evidence that indicates that NEOFACS based its decision to apprehend her child on the fact that the OPP identified her in this manner – the decision was already made. In my opinion, the applicant has no reasonable prospect of establishing that being identified as mentally unstable by the OPP amounted to discrimination in the circumstances of this case.

21The applicant pointed to a paragraph in LSJ’s affidavit in which she indicates that she contacted the Timmins Police Service when the applicant attended at the NEOFACS office on July 13, 2012 to speak with her. In the affidavit, LSJ indicated that she was concerned because a worker described the applicant as being very upset and that she was making demands and threatening to sue the agency. The applicant also pointed to a recording purported to be of her conversation with the receptionist at the NEOFACS office that day. The recording indicates that the applicant’s conversation with the receptionist was calm and unremarkable. The applicant also produced the Occurrence Summary prepared by the police regarding the incident. The Occurrence Summary indicates that the police were asked for assistance with an “agitated client”. The applicant submitted that these facts supported the allegation that NEOFACS and/or the Timmins Police perceive that the applicant suffers from mental health issues.

22I asked the applicant regarding the connection between this incident and a perceived mental illness and she responded “Why else would they (the police) come?” The evidence the applicant pointed to indicates that the Timmins Police responded to a call for assistance. That is the police’s duty and the applicant pointed to no evidence that the officer’s responding to the call perceived the applicant to be suffering from mental illness or treated her differently because of such a perception. There is no indication that LSJ informed the police that she believed the applicant’s behaviour was caused by a mental illness, but the police would have been obliged to respond even if she had. On the applicant’s description of this incident, the Timmins Police’s conduct does not amount to discrimination under the Code. Consequently, these allegations have no reasonable prospect of success.

23The excerpts from LSJ’s affidavit indicate that she had concerns about the applicant’s mental health and that she was concerned about the applicant’s behaviour when she attended at the NEOFACS office on July 13, 2012, which led her to call the police. Individuals are entitled to request assistance from the police if they consider themselves to be at risk. The fact that one considers herself to be at risk because another person’s behaviour is or is perceived to be affected by mental illness does not make a request for police assistance discriminatory. In my view, the applicant has no reasonable prospect of success in establishing that LSJ’s request for police assistance amounted to discrimination under the Code.

New Allegations

24The applicant also made extensive written submissions about two incidents not described in the Application. It is appropriate to deal with this allegation rather than require the applicant to file a separate application regarding this incident, since I find the allegations related to these incidents have no reasonable prospect of success.

25The applicant states that a lawyer, LM, who the applicant states is a friend of the respondents, accused the applicant of causing a disturbance in court and alleging she was afraid of the applicant because the applicant was mentally unstable. The applicant stated that following the accusation, a police officer in the court room began to discriminate against her and give preferential treatment to the other parties. The applicant states that the officer called her a "creep" when the applicant complained. The applicant alleges that LM had charges laid against her based on the incident in court and the next day two officers arrived at her home to investigate. The applicant states that the officers appeared to accept the accusations as true. In reply the applicant advised that she had recorded the incident and that the recording would refute the allegations against her. The officers asked for a copy of the tape and the applicant inquired whether they would charge LM with public mischief and slander for making a false claim. The applicant states that the officers then departed. The applicant asserts that the occurrence report does not include these details, but portrays the applicant as mentally unstable to avoid liability for failing to investigate crimes against her and her brother.

26The applicant indicates that LM complained about the applicant in court, raising the concern about the applicant's mental health. The applicant states that a police officer in the court discriminated against her and give preferential treatment to the opposing parties but did not state what that discrimination or preferential treatment was. The officer allegedly yelled at the applicant not to disrupt the court and called her a "creep" when she complained. The applicant did not, however, point to any evidence that the officer's behavior was connected to a perception that the applicant suffers from mental illness. "Creep" is a derogatory term, but has no obvious connection to disability.

27The applicant's allegation about the investigating officers was that they did not properly investigate the allegations against her. The officers investigated a complaint, which is of course part of their duties. Although the applicant asserts that the officers appeared to accept the complaint as true, the police clearly did not pursue the matter after they spoke to the applicant. The applicant advised the officers that she had an audio recording that would refute the allegations against her. The police quite reasonably asked to review this evidence, but the applicant refused to provide the recording. Instead, on her own account, the applicant seems to have made production of the recording contingent on the officers agreeing to pursue charges against LM if the recording refuted her allegations against the applicant. The officers were under no obligation to make such an arrangement. In the circumstances, refusing to provide exculpatory evidence also does not seem to be a reasonable thing to do. There is no evidence that the applicant filed a complaint against LM and, of course, she did not produce the evidence she asserts would prove LM's complaint was false. In these circumstances the police had no reason to investigate LM. The applicant asserts that the officers described her as mentally unstable in the occurrence report. Assuming this to be true, the officers' assessment of her may be wrong or unfair, but expressing such an opinion is not necessarily discriminatory. In my view, the applicant has not pointed to evidence connecting the statement to differential treatment in police services. Accordingly, these allegations have no reasonable prospect of success.

28For the foregoing reasons, I find the application has no reasonable prospect of success. The application is dismissed.