HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Janet Blommesteyn
Applicant
-and-
The Regional Municipality of York Police Services Board
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Blommesteyn v. York (Police Services Board)
APPEARANCES
Janet Blommesteyn, Applicant
Self-represented
The Regional Municipality of York Police Services Board, Respondent
Stephen Maio, Counsel
Introduction
1This is an Application filed on October 12, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability, age and reprisal.
2The respondent, the Regional Municipality of York Police Services Board (the “Board”), filed a Response denying the allegations in the Application. In a Case Assessment Direction (“CAD”) dated November 19, 2012, the Tribunal directed that a preliminary hearing be held on March 11, 2012 to address the issues of timeliness and whether the Application has no reasonable prospect of success.
3On March 11, 2013, an in-person preliminary hearing was held and I heard the submissions of both parties. For the reasons that follow the Application is dismissed.
Background
4In making this decision, I have reviewed all of the documents presented by the applicant throughout this process. These documents include hours of videotape and pictures involving surveillance of her property and her neighbour gardening in her yard, complaints against one of her lawyers to the Law Society of Upper Canada because he suggested that it might be appropriate for the applicant to be referred to a “Mental Health Diversion” program, a complaint against the Justice of the Peace who was assigned to hear her case, complaints to the Law Society of Upper Canada with respect to the Crown Attorney’s conduct and numerous e-mails and letters that were sent to the respondent and the Crown. However, I will attempt to summarize only the relevant factual background and issues raised in the Application.
5The applicant and her husband, who are in their 40’s, owned a home in Newmarket. Directly across the street from them resided a neighbour in her 70’s and her son in his 40s. The applicant explained that in 2008 the neighbours who were friends had a falling out and on September 2, 2009 they entered into a joint peace bond. The applicant alleges that her neighbour pretended to be frail and bedridden and that she fooled the police and the Crown Attorneys. This was the reason that the applicant decided to videotape her neighbour gardening in the front lawn of her home.
6The applicant alleges that thereafter her two neighbours immediately started to breach the terms of the peace bond. However, it was the neighbours who called the police to complain about the applicant’s non-compliance with the terms of the peace bond. The applicant also alleges that the neighbour’s son tried to run, both her and her husband, on at least two occasions, off the road. The police were called numerous times to attempt to resolve the various disputes between the neighbours. Eventually the applicant was arrested by the police on August 25, 2010 for violating the terms of the peace bond. The charge was eventually withdrawn, after seven appearances in Court by the applicant.
7The applicant alleges that the respondent had no reasonable and probable cause to arrest her. Rather, she alleges that she was arrested for the following reasons:
a. She was younger than her 70 year old neighbour;
b. The police were negligent and biased in their investigation. The applicant believes that her neighbours had a “contact” with the respondent; and
c. She had mental health issues and the police perceived her as being obsessive compulsive.
8The applicant alleges that the police discriminated against her when they attended at her home and she was told to calm down or the police would call an ambulance. The applicant alleges that she has Rosacea and that is why she became flushed during what she characterizes as an interrogation. She alleges that during this interrogation that she was accused of being obsessive and she was told by police to let the matter go. She states that the police refused to look at any of her surveillance which would establish that her neighbour was not the frail old lady that she was pretending to be. During this meeting she also alleged that the neighbour had killed all her fish and had exposed her buttocks.
9The applicant did provide evidence of an email from October 2010 in which one of her complaints is not investigated by the respondent. The respondent refers to the applicant as appearing to have mental health issues and the neighbours are described as being “decent people who are respected by their neighbours”.
10The applicant also explained that in August 2010, her teen age son left the family home. She alleges that the respondent failed to address his disappearance in an appropriate manner. She explained that when she attended at the police station she was told to go home. Later a police officer attended at her home to investigate the matter. By the next day the applicant’s son was contacted by the police officer and he advised that he was in Toronto looking for a job and eventually he returned home.
Decision
11Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 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.
12With respect to the reprisal allegation, in the decision of Noble v. York University, 2010 HRTO 878 at paras. 3 and 4, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
13Having reviewed the Application, the materials provided by the applicant and the applicant’s submissions there is no evidence that the applicant claimed or attempted to enforce a right under the Code or that she was reprised against. As such, I am dismissing the allegation of reprisal under the Code on the basis that there is no reasonable prospect of success.
14In determining if the Application has a reasonable prospect of success, I find that it is appropriate to consider the substance of the Application which concerns the respondent’s role in the investigation of a criminal complaint between two neighbours. The respondent was given differing versions of the events by the applicant and the neighbour. There is no dispute that there were indeed multiple complaints initiated by both the applicant and her neighbour against each other or that the police attended on numerous occasions prior to the applicant’s arrest.
15In that context, it is not improper for the respondent to make note of personal characteristics, such as age and health (both physical and mental), if they are factors that might be relevant to understanding the respective allegations of the parties. The question before me is whether the respondent relied on these factors in an impermissible manner in deciding what action to take (in this case, arresting the applicant).
16Nothing the applicant has put before me as her proposed evidence suggests that she will be able to make this link. That is, the applicant has no reasonable prospect of demonstrating that the police improperly relied on any of her disabilities in coming to the conclusions it did. Likewise, the applicant has pointed to no evidence that the police improperly relied upon her relative youth or more robust health in deciding to arrest her.
17With respect to the applicant’s allegation that she was discriminated on the basis of age, being that the neighbour was not arrested because she was in her 70’s, I make the following observation. The police also did not arrest the neighbour’s son who was in his 40’s when the applicant alleged that he tried to run her off the road which is evidence that age was not a factor in the respondent’s decision making process.
18The applicant has likewise not been able to establish a link between her mental health and the respondent’s failure to charge the neighbour’s son when he allegedly tried to run the applicant off the road. The applicant’s husband, who acknowledges he has no mental health issues (perceived or real), also complained to the police about identical conduct and the police likewise failed to take action.
19In this case there is clear evidence that the respondent conducted an investigation prior to the applicant’s arrest which involved taking statements from neighbours on the street which supported that the applicant was perceived as the instigator. The applicant argues that the police did not speak to any of the neighbours who supported her and that the whole street had been turned against her by the two neighbours in question. The applicant also alleges that the neighbours fabricated evidence against her and at least one had perjured himself in Court. The applicant suggests that the respondent was fooled by the neighbours and that witnesses fabricated evidence. However, it is not within the jurisdiction of this Tribunal to inquire into these issues.
20Though I understand that the applicant believes that she has been treated unfairly by the respondent, I find based on the proposed evidence that I have reviewed that she has no reasonable prospect of establishing that the respondent infringed her rights under the Code.
21The Application is dismissed.
Dated at Toronto, this 5th day of June, 2013.
”signed by”
Geneviève Debané
Vice-chair