HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Linda Saxon
Applicant
-and-
Amherstburg Police Services Board
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Saxon v. Amherstburg Police Services Board
APPEARANCES
Linda Saxon, Applicant Self-represented
Amherstburg Police Services Board, Respondent Edward Posliff, Counsel
1This is an Application filed on July 18, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of marital status and reprisal.
Background
2The applicant and her husband have been involved in a number of unsuccessful proceedings before the Tribunal against the Town of Amherstburg. See, Saxon v. Amherstburg Police Services Board, 2009 HRTO 1628, Saxon v. Amherstburg Police Services Board, 2011 HRTO 77 and Saxon v. Amherstburg (Town), 2011 HRTO 960.
3In Saxon v. Amherstburg Police Services Board, 2011 HRTO 77, the Tribunal dismissed the applicant’s Application in which she alleged that Tim Berthiaume, currently the Chief of Police, gathered and provided incorrect information about her to Great West Life (“GWL”), a disability insurance carrier, regarding a long term disability claim. By letter dated March 14, 2011 to the Amherstburg Police Services Board, the applicant acknowledged that the Tribunal dismissed her Application, but pointed out her belief that Chief Berthiaume had nonetheless provided false information to GWL with a view to having this allegation investigated.
4The Board responded to the applicant’s complaint by letter dated July 19, 2011. The Board noted that it had initially forwarded the complaint to the Office of the Independent Police Review Director (the “Director”). The Board advised the applicant that the Director concluded that he did not have jurisdiction to deal with the matter and that the Director also found that the applicant was attempting to circumvent the Police Services Act (“PSA”), which prevents member of the police service, i.e., the applicant’s husband, from complaining about other members, i.e., Chief Berthiaume.
5The Board also stated in its letter that it had investigated the allegation and found them to be factually unfounded. The Board dismissed the allegation on this basis, but provided additional reasons for dismissing the complaint. First, the Board noted that the applicant was aware of the circumstances giving rise to her complaint for two years and dismissed the complaint for delay. Second, the Board noted that the allegations did not fall within the type of conduct that can be subject to a complaint under the PSA. Third, the Board considered the complaint to be an attempt to re-litigate issues regarding which the Tribunal had already ruled against the applicant and her husband. Accordingly, the Board dismissed the complaint as a vexatious collateral attack against the Tribunal’s decision.
6In this Application, the applicant alleges that the respondents’ refusal to investigate her complaint amounts to discrimination because of marital status and reprisal. The applicant also alleges that she was the victim of criminal harassment in February 2009 and complained to the respondent Police Services Board. The applicant alleges the respondent did not investigate her complaint properly because her husband was engaged in proceedings before the Tribunal at the time. The applicant submitted that she continued to pursue this matter until May 2009, when she was able to meet with the Crown Attorney.
7Finally, the applicant notes that she sought certain information from the respondent and received a criminal records check regarding another individual in error. Consequently, the applicant filed a complaint with the Information and Privacy Commissioner (“IPC”). The respondent requested that the applicant destroy this information and the IPC eventually confirmed that the respondent addressed the privacy breach appropriately.
8By Case Assessment Direction (“CAD”) dated September 18, 2013, the Tribunal ordered a summary hearing in this matter to determine whether the Application should be dismissed because it has no reasonable prospect of success. The Tribunal noted that, following a review of the Application, the applicant may not be prove a link between the respondent’s alleged actions and a prohibited ground of discrimination or an intention to retaliate for asserting her human rights. The Tribunal also noted that the allegations may be untimely, pursuant to section 34(1) and (2) of the Code. The Tribunal held the summary hearing on February 6, 2013, by teleconference to address these issues.
Analysis and Decision
No Reasonable Prospect
9Rule 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.
10In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-9:
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.
11As noted in the CAD, the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights: Noble v. York University, 2010 HRTO 878 at paragraph 31. Accordingly, there must be a reasonable basis to believe the applicant could establish such an intention and a link to the respondent’s alleged actions.
12The applicant submitted that the letter from the organizational respondent was evidence of discrimination and reprisal. With respect, the letter is, in my view, evidence of no such thing. The letter notes the OPIRD’s conclusion (i.e., not the respondent’s) that the applicant was essentially advancing her husband’s claim to circumvent the PSA. The OPIRD is not a respondent to this Application and the respondent cannot be held responsible for the OPIRD’s decision. The letter goes on to set out the respondent Board’s reasons for dismissing the applicant’s complaint. The primary reason was that the Board investigated the allegation and found it to be unfounded. The applicant does not agree with this conclusion, but the Tribunal is not empowered to review the Board decision without evidence that the decision violated the Code. The applicant did not comment on the Board’s finding that her complaint was invalid pursuant to the PSA and untimely. The applicant offered no evidence that would link the respondent’s reasons for dismissing her complaint to a prohibited ground of discrimination.
13The applicant submitted that the respondent’s conclusion that the complaint amounted to a collateral attack on the Tribunal’s decisions amounted to a reprisal. A reprisal requires an intention to retaliate because an applicant has attempted to enforce his or her Code rights. In this case, one of the reasons the respondent dismissed the complaint was that it considered the applicant to be attempting to re-litigate issues the Tribunal had already addressed. In my view, the parties’ history indicates that this was a legitimate position to take and does not amount to a reprisal. Indeed, the allegations raised in this Application are very similar to the allegations identified and dismissed by the Tribunal in Saxon v. Amherstburg Police Services Board, 2011 HRTO 77. The applicant submitted that she found it hard to believe that the respondent would have dealt with her complaint as it did if another member of the public made it. This is no more than a bare assertion. In the circumstances, there is no evidence connecting the applicant’s allegations regarding the dismissal of her complaint to the respondent Board’s decision and a prohibited ground of discrimination or reprisal. Accordingly, the allegation that the Board’s decision to dismiss the applicant’s complaint violated the Code has no reasonable prospect of success.
14The Tribunal has no jurisdiction over privacy issues and, in any event, the applicant provided no evidence that the respondent’s privacy breach had any connection to the Code. The applicant’s allegation regarding the respondent’s privacy breach therefore has no reasonable prospect of success.
Timeliness
15Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:
- (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
16The Application was filed on July 18, 2012. The incidents alleged to have occurred between February 2008 and May 2009 obviously occurred more than one year before the filing date. The applicant submitted that the respondent’s actions amounted to a series of incidents, the last of which was the respondent’s letter of July 19, 2011, which was timely. However, I have already found that the allegations regarding this letter and the IPC process have no reasonable prospect of success. The Tribunal has found that an incident regarding which the applicant’s allegations have no reasonable prospect of success cannot form part of a series of incidents. See Chappell v. Securitas Canada Limited, 2012 HRTO 874 and Garland v. Canusa-CPS, 2012 HRTO 1309. Consequently, I find the applicant’s allegations regarding the investigation of her criminal complaint, arising between February 2008 and May 2009, and the respondent’s response to her complaint in July 2011 do not amount to a series of incidents under section 34(1)(b) of the Code. The applicant made no submissions regarding whether the delay was incurred in good faith. Accordingly, the applicant’s allegations regarding her criminal complaint are dismissed for delay.
Order
17The Application is dismissed.
Dated at Toronto, this 25th day of April, 2013.
”signed by”
Douglas Sanderson Vice-chair