HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
SMS
Applicant
-and-
Durham Children’s Aid Society and The Regional Municipality of York Police Services Board
Respondents
DECISION
Adjudicator: Douglas Sanderson
Indexed as: SMS v. Durham Children’s Aid Society
APPEARANCES
SMS, Applicant
Self-represented
Durham Children’s Aid Society, Respondent
Vincent Panetta, Counsel
York Police Services Board, Respondent
Stephen Maio, Counsel
1This Application, filed on December 17, 2014 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to services because of race, colour, place of origin, creed, family status, marital status and age.
Background
2In a Case Assessment Direction dated March 5, 2015, the Tribunal noted that the narrative to the Application was 215 pages long and that much of the narrative did not appear to be related to the applicant’s allegations that the respondents violated her human rights. The Tribunal therefore directed the applicant to provide a concise statement clearly and very briefly describing only her particular allegations of discrimination contrary to the Code. The applicant filed her statement on April 2, 2015.
3The applicant describes herself as a Muslim woman. The applicant’s allegations are twofold. First, the applicant alleges that an employee of the Durham Children’s Aid Society (“CAS”), a Mr. Dimaculangan, spoke to her on three occasions: twice at her son’s school and once outside of her apartment. The applicant alleges that Mr. Dimaculangan questioned her about her abilities as a mother and about whether she was able to provide for her son. The applicant also alleges that Mr. Dimaculangan questioned her about her right to move to Ajax from Markham to live independently with her son. Second, the applicant alleges that officers of the York Police discriminated against her and failed to assist her in recovering custody of her son, who had been taken to live with her sister. Amongst other things, the applicant alleged that the officers failed to respect an Interim Decision of this Tribunal in another Application the applicant filed: SMS v. Toronto Police Services Board, 2013 HRTO 1546. On the face of the applicant’s narrative, it is clear that she believes that this decision granted her custody of her son. Unfortunately, this is plainly incorrect. In dismissing the application against the Toronto CAS, the Tribunal made the following comments, which serve as useful background to this proceeding, at paragraphs 42-44:
[42] The Application against the CAS is dismissed. The applicant alleges that the CAS “wrongfully accused” her of suffering from schizophrenia and that it violated her rights by not permitting her and her son to move and live with her son apart from her family, and has deprived them of the opportunity to go to their mosque, and to attend at various social and leisure activities. She has alleged that because she has not been given full custody of her son, the CAS is guilty of a “violation” of her family status.
[43] The applicant’s allegations against the CAS centre around the fact that her sister has been granted custody of her son, and that though she lives with her sister and son, she is not able to make decisions about her son without her sister’s approval. The issue before the court in the Child Protection Proceedings involved the determination of the applicant’s custodial rights. During that process the applicant ultimately consented to the custodial arrangement and to the factual background which was endorsed by the Court.
[44] In seeking to proceed with this Application, the applicant seeks to resile from her consent and seeks to have the Tribunal award her custody of her son. The Tribunal does not have the jurisdiction to interfere with a Court order or otherwise review the custodial order. In essence, she seeks to make a collateral attack on the Court’s determination of this issue and to relitigate the custodial order in these proceedings.
4The applicant states that on March 26, 2014 she attended a Durham Regional Police station where she attempted to obtain the police’s assistance in retrieving her son, but was not successful. The applicant states that on March 28, 2014 she attended at her sister’s residence to take her son to live with her. Her sister refused to allow her to do so and the police were summoned. The applicant states that officers from the Markham Police attended and also did not assist her in securing custody of her son. The applicant alleges that one of the officers was abrupt with her when he ordered her to take her hands out of her pockets. The applicant alleges that these officers also did not respect the Tribunal’s Interim Decision. The applicant alleges that one of the officers threatened to arrest her for kidnapping if she left her sister’s house with her child. The applicant alleges that the officers questioned her about her mental health and that one of the officers, who she described as Sikh, questioned her about a prayer room in the home.
Anonymization
5The applicant did not request that the Tribunal anonymize public decisions in this matter by referring to her using her initials. However, I have referred to a previous Interim Decision in another matter before this Tribunal in which the applicant’s name was anonymized. Consequently, referring to the applicant using her full name in this matter will identify the applicant as the applicant in SMS, above, which would defeat the purpose of anonymizing that decision. In these circumstances, I find it appropriate to anonymize the applicant’s name by referring to her using her initials.
Summary Hearing
6By Case Assessment Direction dated April 29, 2015, the Tribunal ordered a summary hearing in this matter to determine whether it should be dismissed because it has no reasonable prospect of success. The Tribunal held the summary hearing by teleconference on September 24, 2015.
Submissions
7The applicant proceeded first and began her submissions by stating that she had moved to Ajax with her son on March 7, 2014. The applicant submitted that the Tribunal’s Interim Decision in her previous application had granted her this right. I pointed out to the applicant that the Interim Decision in question, described above, did not grant her custody of her son and in fact dismissed the application as against the Toronto CAS. The applicant stated that she understood this and continued with her submissions. The applicant submitted that the parties were aware of her move. The applicant stated that Mr. Dimaculangan met her at her son’s school, but she did not have an appointment with him and did not want to meet him. The applicant submitted that this unwanted meeting amounted to discrimination because of race. When I asked her how this incident was related to the Code, the applicant submitted that she is a Pakistani lady and felt humiliated when she was interrogated about her family life. The applicant submitted that she had provided the school with a copy of the Tribunal’s Interim Decision to clarify her situation and to make the staff aware of her “Code status”. The applicant submitted that she had attended at the school to discuss her son’s progress, but instead was harassed by Mr. Dimaculangan who asked her questions about her mental health and her ability to live independently. The applicant stated that she practices the hijab and is careful about meeting unknown men. The applicant submitted that, accordingly, the forced meeting with Dimaculangan was discrimination because of creed.
8The applicant submitted that she went to the Durham Police on March 27, 2014 to obtain their assistance in having her son returned to her. The applicant stated that she presented the police with the Interim Decision and asked them to call an Assistant Registrar of the Tribunal, as she believed (incorrectly) that he would speak on her behalf. The applicant submitted that the officers spoke to her in a harassing and intimidating manner and refused to call the Tribunal. The applicant asserts that the police treated her unequally because of creed, race and family status.
9The applicant stated that she went to her sister’s house on March 28, 2014 to get her son. The applicant stated that her sister threatened her regarding the custody of her son and her mental health. The applicant submitted that she spoke to the police on her cellular phone and a female police officer advised her how to meet the police officers when they arrived. The officers arrived, but did not return her son to her. Rather, they treated her with suspicion and did not treat her equally. The applicant submitted that one of the officers threatened her with kidnapping. The applicant submitted that, as a result, she was not able to return to Ajax as she expected and was compelled to remain at her sister’s home.
10The applicant submitted that she explained the Interim Decision to two of the officers. The applicant stated that one of the officers, whom she described as being a Sikh, asked her about a prayer room in the home. The applicant submitted that she explained that she is an Islamic teacher. The applicant submitted that, instead of respecting this, the officers harassed her with a warning. The applicant submitted that this incident is connected to creed because of the proximity to the prayer room and because she was wearing religious dress.
11For the reasons that follow, I find that the applicant did not point to evidence that she has or has reasonably available to her that could connect the respondents’ alleged actions to any Code ground. In these, circumstances, it is unnecessary to record the respondents’ submissions.
Analysis and Decision
12Rule 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.
No Reasonable Prospect of Success
13In 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.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
14The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, 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 race, colour or ethnic origin. 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.
15At 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 his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.
16The applicant finds herself in a difficult position. It is clear that she loves her child and wants to be a good mother to him. However, the record establishes that she does not have custody of her son. She naturally finds this situation distressing and her actions demonstrate that she does not accept this unfortunate reality. The incidents in question in this Application arise out of her attempt to secure custody of her son, apparently in contravention to a court order granting custody to her sister. The applicant alleges that the respondents violated her human rights, but she was unable to point to any evidence that could connect their actions to any Code ground.
17The applicant submitted that she did not wish to meet with Mr. Dimaculangan and that this amounted to discrimination because of creed because she is an observant Muslim and is careful about meeting unknown men. To establish that her meetings with Mr. Dimaculangan were discriminatory, the applicant had to point to evidence that she has or has reasonably available to her that her creed was a factor in his decision to speak with her. The applicant pointed to no such evidence and I would note that the applicant presented no evidence that the Durham CAS took any action beyond speaking to her. The applicant clearly did not want to meet Mr. Dimuculangan and found his questions to be unpleasant, but this is not sufficient to establish a Code breach. In my view, the applicant’s allegations against the Durham CAS have no reasonable prospect of success.
18The applicant believed that she was entitled to have the police assist her in trying to remove her son from her sister’s home on the strength, at least in part, of the Tribunal’s Interim Decision in her previous application against the Toronto Police and Toronto CAS. As noted above, the applicant’s conclusion that the Interim Decision granted her custody of her son is unfounded. The applicant provided no other basis for concluding that the court order granting custody of her son to her sister is no longer valid. The police are also bound by the court order and could not take the applicant’s son out of her sister’s custody. The applicant also did not point to any evidence that could support an inference that any of the Code grounds she relies upon was a factor in the police’s decision not to help her take custody of her son. The applicant complained that one of the police officers threatened to charge her with kidnapping if she attempted to take her son out of her sister’s home. Assuming this allegation is true, it may have been that the officer’s warning was harsh, but the applicant described no evidence that would provide a proper basis for concluding that the warning was related to a Code ground and not because the applicant plainly did not accept that she does not have legal custody of her child. The applicant submitted that the police officers’ actions amounted to discrimination because of creed because they spoke to her in close proximity to the prayer room in her sister’s home and because one of the officers asked her about the prayer room. While the applicant may have found this to be distasteful, having a discussion near a place of religious observance is not in itself a discriminatory act. The applicant pointed to no evidence that would indicate that the questions the officer allegedly posed were in any way disrespectful or derogatory such that they could be considered harassing or discriminatory. In these circumstances, I find that the allegations against the police have no reasonable prospect of success.
19The Application is dismissed.
Dated at Toronto, this 24th day of November, 2015.
“signed by”
Douglas Sanderson
Vice-chair
CORRECTION
The Decision dated November 24, 2015 contained a typographical error on the appearances page. Counsel for the respondent, York Police Services Board is named incorrectly and should be read Stephen Maio. Counsel for the Respondent, Durham Children’s Aid Society should read Vincent Panetta.
The decision is now amended.
Dated at Toronto, this 27th day of November, 2015.
“signed by”
Douglas Sanderson
Vice-chair