Angela Morgan v. Durham Regional Police Service, 2014 HRTO 756

Human Rights Tribunal of Ontario

B E T W E E N:

Angela Morgan Applicant

-and-

Durham Regional Police Service Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume Date: May 27, 2014 Citation: 2014 HRTO 756 Indexed as: Morgan v. Durham Regional Police Service

APPEARANCES

Angela Morgan, Applicant Self-represented

Durham Regional Police Service, Respondent Gordon Woods, Counsel

Introduction

1This is an Application filed 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.

2The applicant alleges that in her interactions with the respondent since 2006 she has been treated as if she has a mental illness. These interactions have taken place in the context of police calls arising from difficulties the applicant has had with her daughter over the years. The applicant's allegations of discrimination are described in her Application as a series of events, commencing in 2006 and "ongoing".

3The applicant's most recent allegation is dated April 12, 2013. She alleges that during a dispute with her daughter, police attended at her home and insisted that she been taken to a hospital for evaluation. The applicant alleges that when she refused, she was physically forced into a police vehicle and taken to hospital. The applicant alleges that the respondent has no basis for such an intervention except the assumptions that have been made about her mental health.

4By Case Assessment Direction dated September 24, 2013, the Tribunal scheduled this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal's Rules of Procedure. The CAD indicated that the Tribunal would hear submissions in relation to the test of "no reasonable prospect of success" and delay.

5The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure as well as the Tribunal's Practice Direction on Summary Hearing Requests.

6The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Unfair treatment is not discriminatory in the legal sense unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.

7The test that is applied at this stage is whether an application should be dismissed in whole or in part because there is no reasonable prospect that the applicant will be able to prove discrimination. Discrimination in the legal sense requires proof of adverse or unfair treatment which is based, in whole or in part, on a person's race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment. Where an application appears to be missing this connection, or where it would assist the Tribunal in understanding the allegations, the parties are asked to participate in a summary hearing by teleconference.

8At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which would not be considered discrimination in the legal sense, can leave a person with significant financial and emotional damage. The test of no reasonable prospect of success is determined by assuming the applicant's allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent's version of one or more of the facts. Accepting the facts alleged by the applicant does not include accepting the applicant's assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence to support the applicant's belief that they have experienced discrimination.

9The real question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient evidence available to connect the unfair treatment experienced by the applicant with the applicant's personal characteristics.

10In order to proceed to a full hearing, some evidence must exist which goes beyond the applicant's feeling or belief that their personal characteristic played a role in what they experienced. That evidence comes in a variety of forms: the timing of a person's dismissal or discipline; comments alleged to have been made by the respondent; comparisons with how other people were treated. Many circumstances play a role in assisting the Tribunal in determining whether a person has experienced discrimination in the legal sense. However, if the applicant is unable to point to evidence beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

11The primary focus in the summary hearing is on the applicant's evidence. The respondent's explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant's case.

12There is no burden of proof assigned to either party in a summary hearing and as a result, it is not up to the applicant to demonstrate that an application has a reasonable prospect of success. It is the role of the Tribunal to examine the allegations and determine whether or not an application should move ahead in the hearing process or be dismissed for no reasonable prospect of success.

13In this case, the applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Specifically the applicant was asked to assist the Tribunal in understanding the connection between the respondent's actions and the prohibited ground of disability. The respondent also made submissions in support of dismissing the Application.

14The respondent denies the allegations of discrimination and argues that the officers acted appropriately out of a heightened concern that the applicant could be a danger to herself or others.

15I have considered the submissions of the parties and their written materials. This is a case which requires evidence to resolve. After hearing some or all of the evidence, an adjudicator may very well accept that the respondent did not engage in discrimination. However, at this stage in the process, the Tribunal will not dispose of an application on the basis that the respondent has a viable explanation for what occurred.

16Accepting the applicant's allegations as true, I cannot find that there is no reasonable prospect that she can succeed under the Code. The Application will continue to the next stage in the hearing process. Pursuant to Rule 19A.6, I do not consider it necessary or useful to provide further reasons. The presiding adjudicator will be in the best position to determine the scope of the evidence and issues at the hearing.

17With respect to the issue of delay, the applicant argues that her interactions with the respondent constitute a series of incidents beginning in 2006. I have come to the conclusion that I cannot resolve this issue without hearing and considering evidence in relation to the last incident which is alleged to have occurred on April 12, 2013. However, I do not consider it necessary, at this stage, for the respondent to address anything more than the last incident.

Direction

18I make the following directions:

• The respondent will file a Response to the last incident alleged by the applicant, within 35 days of the date of this Interim Decision;
• The applicant will file a Reply in accordance with the Rules if necessary;
• When the Reply is received, or the time for filing a Reply has expired, the Tribunal will schedule a case management conference with me to determine the next steps in the Application.