Kurdina v. Toronto Police Service, 2013 HRTO 2004

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Galina Kurdina

Applicant

-and-

Toronto Police Service

Respondent

DECISION

Adjudicator: Dawn J. Kershaw Date: December 4, 2013 Citation: 2013 HRTO 2004 Indexed as: Kurdina v. Toronto Police Service

APPEARANCES

Galina Kurdina, Applicant Self-represented

Toronto Police Service, Respondent Antonella Ceddia, Counsel

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), which alleged that the respondent discriminated against her with respect to services because of disability. By Case Assessment Direction, dated June 12, 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.

2The applicant alleges that she has been the victim of psychotronic (mind control) effects since 2005 and that she despite reporting this to the respondent nine times, beginning in January 2006, the respondent failed to investigate.

3The only timely allegations were the applicant’s reports to the respondent on June 20 and November 11, 2012. The applicant alleges that the respondent failed to investigate her claims despite her having provided it with names of suspects, and alleges this is because of a disability, although she denies having one.

Reasonable Prospect of Success

4Rule 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.

5In 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.

6The 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. 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.

7At 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.

8The 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.

9In this case, the applicant’s allegations are that she reported to the police that she was being assaulted by electromagnetic forces and instead of investigating, they referred her to a psychiatrist, thereby not only failing in their duty to provide her with a service because of her disability but also assuming she had a mental health issue. Assuming these allegations to be true, they do not constitute discriminatory acts by the respondent.

10This is similar to the finding in C.G. v. Timmins Police Service, 2013 HRTO 1268 in which the applicant alleged that the police failed to investigate and described the applicant as “mentally unstable” in the occurrence report. The Tribunal concluded in that case that even assuming that to be true, the officers' assessment may have been wrong or unfair, but was not necessarily discriminatory. In this case, the applicant provided several reports from psychologists and a hypnotherapist that stated that the applicant does not suffer from mental illness but is the victim of psychotronic attacks. However, whether or not the applicant suffers from mental illness is not determinative.

11In this case, I accept the submissions of the respondent that its police officers did not investigate the applicant’s allegations because the nature of the applicant’s complaints did not constitute a crime which they could investigate and not because of any assumption that the applicant had a mental illness. The failure to investigate was not because of an assumption by the police officers about the applicant’s mental health.

12In addition, the fact that the police officers referred the applicant to a psychiatrist may indicate a wrong assessment of her, but was not a discriminatory act.

13In my view, the applicant has not pointed to evidence connecting the officers’ failure to investigate to any differential treatment in police services. Accordingly, these allegations have no reasonable prospect of success.

14The respondent also raised the issue of the applicant having brought a court application with respect to many of the same issues, but given my determination, I need not address these arguments.

Order

15The Application is dismissed.