Noble-Gresty v. Durham Regional Police Services Board, 2016 HRTO 1349

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barry Noble-Gresty Applicant

-and-

Durham Regional Police Services Board and Gordon Dicresce Respondents

DECISION

Adjudicator: Jennifer Khurana

Date: October 18, 2016

Citation: 2016 HRTO 1349

Indexed as: Noble-Gresty v. Durham Regional Police Services Board

APPEARANCES

Barry Noble-Gresty, Applicant Self-represented

Durham Regional Police Services Board and Gordon Dicresce, Respondents Angela Khoury, Counsel

Introduction

1This Application alleges discrimination with respect to services because of marital status and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the individual respondent discriminated against him when he responded to a report of a domestic related incident made by the applicant’s former fiancé.

2The respondents filed a Response and request for summary hearing, denying the allegation of discrimination and requesting that the Application be dismissed on a preliminary basis because it has no reasonable prospect of success.

3By way of Case Assessment Direction (“CAD”) the Tribunal directed that a summary hearing be held to determine whether the 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.

4The summary hearing was held by telephone conference call on October 14, 2016. All parties participated in the summary hearing.

5For the reasons that follow, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code.

Summary Hearing Process

6The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

7The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

8The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

9However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

10As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

11Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

12On June 10, 2015, the police received a call from the applicant’s former fiancé (the “complainant”) who advised that she found a letter from the applicant on her car at work demanding money and the return of several items of property. The applicant and his former fiancé had been in a relationship and lived together but were never legally married. The complainant advised that she had not been in contact with the applicant since their relationship ended in or around May 2014. The individual respondent was dispatched to the complainant’s home to respond to her call. The individual respondent then contacted the applicant on the basis of the information provided by the complainant and indicated that he was investigating a domestic incident. He also cautioned the applicant that if he continued to contact his former fiancé he could be charged with criminal harassment.

Findings

13Even if I accept the facts put forward by the applicant as true and provable, I must find that the Application stands no reasonable prospect of success under the Code. The facts as alleged by the applicant cannot reasonably amount to a Code violation and the events set out in the Application fail to identify any connection between the conduct of the respondents and any ground protected under the Code.

14As noted above, for an application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his or her own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311. See also Forde, above.

15At the summary hearing, the applicant was given the opportunity to clarify his allegations and to explain the connection between the respondents’ alleged actions and the grounds of marital status or family status. I also asked the applicant what evidence he intended to bring at a hearing to establish a link between the allegations raised and a right protected under the Code.

16The applicant’s position is essentially that the respondents failed to recognise the status of the common law relationship he had with his former fiancé and treated him like a “boyfriend” or “a one night stand”. He indicated that he is a retired police officer and that he knows how domestic situations should be handled by the police. According to the applicant, the individual respondent had no lawful right to contact him as the issue with the complainant was not a police matter and he had done nothing wrong. The applicant also alleges that this matter is the continuation of an incident dating back to May 2014 when the police were called to the complainant’s home when their relationship ended.

17When asked why he believed his marital status was a factor in the respondents’ conduct, the applicant explained that had he been legally married, the individual respondent would not have contacted him and would have told the complainant that. The applicant indicated that he would rely on the respondents’ policies with respect to domestic violence occurrences to prove that the police had no right to contact him or to attend to the complainant’s call. He would also request statistics from the respondents regarding their responses to domestic incidents which would also support his position about his rights under the Family Law Act, R.S.O. c. F.3 (the “FLA”).

18The respondents submit that irrespective of marital status, the police response would have been the same pursuant to section 42 the Police Services Act, R.S.O. 1990 c. P. 15. The duties of a police officer include responding to calls for service regarding domestic related incidents and investigating crimes under the Criminal Code. In this case the individual respondent attended the complainant’s call for service as she advised that she was at work, saw the letter from the applicant and felt afraid. The individual respondent was aware of the history between the parties and understood that the property dispute was not a police matter. According to the respondents, the individual respondent was duty bound to attend to the call for a domestic related occurrence and was also governed by the police directive on domestic violence occurrences which relates to persons who had or have had an intimate relationship and is not limited to married persons.

19The issue at the summary hearing is not whether the applicant’s understanding of his entitlement to property as a “common law” spouse under the FLA is correct, or whether the applicant is correct about the scope of the police powers in the circumstances of this case. The issue is whether there is any information from which the Tribunal could reasonably conclude that the applicant’s marital status was a factor in the respondents’ actions in responding to his former fiancé’s complaint.

20The facts as put forward by the applicant do not support his claim that the respondents’ conduct could reasonably amount to a Code violation. In any case, even if the facts did support the applicant’s allegations about the respondents’ alleged actions, he has not pointed to any evidence from which the Tribunal could reasonably infer that his marital status impacted the handling of the complainant’s call or conduct towards the applicant. Further, section 10 (1) of the Code defines “family status” as “being in a parent and child relationship”. This Application does not make allegations which relate to the applicant’s family status.

21The applicant has made bald and unsupported allegations and has not pointed to evidence of any link between the respondents’ alleged unfair treatment and his family status and/or marital status. He believes very strongly that the respondents would not have contacted him had he been legally married to the complainant however his claims are entirely speculative. In my view it is clear that this Application has no reasonable prospect of success and must be dismissed.

ORDER

22The Application is dismissed.