HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.M.
Applicant
-and-
Toronto Police Services Board
Respondent
DECISION
Adjudicator: Jennifer Scott
Indexed as: J.M. v. Toronto Police Services Board
APPEARANCES
J.M., Applicant
Self-represented
Toronto Police Services Board, Respondent
David Gourley and then Naomi Calla and Adam Guy, Counsel
introduction
1This Application alleges discrimination with respect to accommodation and services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that her former landlord (the “landlord”) and the Toronto Police Services Board (the “respondent” or the “police”) discriminated against her because of her mental health or perceived mental health issues. The applicant self-identifies as someone with an anxiety disorder.
2The allegations against the landlord were dismissed by Interim Decision dated September 5, 2014, 2014 HRTO 1317. The Application continued against the police.
3The allegations of discrimination against the police take place over a very short period of time when the applicant was being evicted from her apartment by her landlord. Over the course of a two-week period in July and August 2011, the applicant and her landlord called the police to get their assistance. The applicant believes the police treated her differently because of her mental health. In particular, the applicant believes that once she was labelled by the police as someone with mental health issues, the police gave greater priority to the landlord’s complaints (because the applicant was stereotyped as someone who was potentially dangerous) and lower priority to the applicant’s complaints (because she was constructed to be incredible). The applicant alleges further that when the police attended at her apartment, they treated her differently and failed to investigate her complaint against her landlord.
4The applicant also alleges that in 2013, the respondent threatened a specific process to deal with her complaints to the police and refused to provide her with police services.
5For the reasons that follow, I find that the applicant has not met her onus of proving discrimination against the police.
the facts
The Eviction
6The facts relating to the applicant’s eviction are set out in the Interim Decision and are reproduced here.
7The applicant became a tenant of the landlord in March 2006. The applicant’s apartment was in the basement of the landlord’s house. By all accounts, the applicant and the landlord had a very good relationship.
8In late April 2011, the landlord advised the applicant that she intended to take possession of the basement apartment. On April 27, 2011, the applicant wrote to the landlord and indicated her desire to stay in the apartment.
9On April 30, 2011, the landlord provided the applicant with a Notice to Terminate a Tenancy at the End of the Term For Landlord’s or Purchaser’s Own Use Form (the “Notice”). The Notice advised the applicant that she had to move out of her rental unit before June 30, 2011.
10The applicant opposed the eviction because the landlord had not provided reasons as to why she intended to take possession of the basement apartment. The applicant did not believe her eviction was lawful.
11On May 2, 2011, the landlord filed an application with the Landlord and Tenant Board to evict the tenant.
12The applicant wrote to the landlord on May 5, 2011, and requested greater detail as to why she needed to live in the basement apartment. The applicant advised the landlord that she did not believe the landlord was acting in good faith.
13On June 21, 2011, the hearing before the Landlord and Tenant Board was adjourned to permit the applicant to obtain legal representation.
14On June 23, 2011, the applicant obtained new rental accommodation and paid first and last month’s rent. The applicant was advised she could take possession of the new rental unit by August 15, 2011. The applicant did not inform the landlord that she had found a new place to live.
15On July 11, 2011, the landlord gave the applicant notice that she needed to access the basement for four hours on July 15, 2011, to fix the screens.
16On July 15, 2011, the landlord and the repair person attended at the applicant’s apartment. They knocked on the door and the applicant told them she needed a couple of minutes because she was waking up from a nap. The landlord told the applicant they were waiting. The applicant advised the landlord that she intended to file an application for moving costs and for the difference in rent. She further advised the landlord that she wanted to be compensated for the noise that resulted from repairs going on elsewhere in the house. The applicant told the landlord that she believed the landlord suffered from a psychiatric disorder and that she should get help because she was irrational over nothing. The applicant stated she said this because of the landlord’s reaction to one simple letter and to the applicant’s claim for moving costs.
17The landlord told the applicant that she does suffer from a psychiatric disorder and was getting treatment. The applicant stated the landlord told her she was a very good tenant and thought the world of her, but that she wanted her out. At that point, the applicant told the landlord that she had found a new place to live. She told the landlord that she was writing out her complaints respectfully and that she wanted the landlord to be respectful of her. The applicant did not tell the landlord the date she would be vacating the apartment.
18On July 25, 2011, the landlord wrote to the applicant confirming the applicant’s advice that she had found a new place to live. The landlord advised the applicant that if she moved out by August 1, 2011, she would not cash her July rent cheque.
19On July 29, 2011, the applicant was provided with a notice of hearing for the Landlord and Tenant Board proceeding. The hearing was scheduled for August 11, 2011. The applicant believed the landlord delivered the notice personally. The applicant ripped up the notice of hearing and delivered a letter to the landlord to advise her not to deliver any more notices. She told the landlord that because they had decided to communicate by letter, she should put her mail in the mailbox. The applicant returned to her apartment and yelled, “Stop, for the love of god, stop harassing me please”.
20On July 29, 2011, the applicant told a neighbour that she was moving. The landlord came out to see what they were doing. The applicant said to the neighbour that the landlord looked mentally unstable.
21On August 1, 2011, the applicant paid half of her monthly rent and told the landlord her move-out date was August 15, 2011.
22On August 4, 2011, the applicant received a 10 Day Notice to Terminate a Tenancy Early (the “Second Notice”) under the door to her apartment. The Second Notice stated the applicant had to vacate by August 14, 2011. The reasons for the notice were as follows:
On May 1, the applicant shouted at the landlord with her finger in the landlord’s face that she would not be moving out. The landlord was frightened.
On June 5, the applicant shouted at the landlord that she better be careful.
On July 15, the applicant shouted at the landlord that she needed to show her respect, that the landlord was insane and pointed her finger in the landlord’s face.
On July 21, the applicant shouted “what would happen if there was a fire”.
On July 29, the applicant shouted at the landlord to get out of her house.
On July 31, the applicant shouted she was going to get the landlord.
On August 1, the applicant shouted she was going to get the landlord.
The landlord stated she was substantially afraid for her physical well-being as the applicant was substantially interfering with her life on a regular basis.
23After receiving the Second Notice, the applicant spoke to one of her neighbours about whether he knew of any inexpensive movers. The landlord came outside and listened to the applicant’s conversation with the neighbour. The applicant told the landlord that she had the right to talk to her neighbours. The applicant also told the landlord that the landlord was sick and that she should get psychiatric help. The applicant told the landlord that she was going to call the police.
24The applicant and the landlord attended at the Landlord and Tenant Board hearing on August 11, 2011. The applicant advised the member conducting the hearing that she was moving out on August 15, 2011. Because the applicant was moving out, it was not necessary for the Landlord and Tenant Board to decide the applications for eviction. The Landlord and Tenant Board member gave the applicant until August 16, 2011 to move out. The member instructed the landlord to leave the applicant alone on moving day.
25The applicant moved out of her apartment on August 15, 2011. The landlord blocked the moving van because the applicant had not returned her keys. The applicant told the landlord that she was returning later on to the apartment. The landlord told the applicant that she had called the police and that they had told her the applicant was required by law to advise when she was returning her keys. The applicant replied: “You did not call the police about that and the police did not advise you that way. They’re not going to advise you on a tenant issue, when they don’t have any clue about tenant act issues”. For about 20 minutes, the landlord blocked the moving van. The moving van was eventually able to leave.
26Between July 29 and August 15, 2011, the applicant and the landlord called the police about each other. The details of their calls are set out below.
Calls to the Police
By The General Public
27The general public can call the police using both the emergency (911) and the non-emergency lines. Both types of calls are answered by call-takers, also known as communications operators. If a police response is required, the call is logged into the computer and sent to dispatch. The role of the call-taker is to gather information, take control of the call and if necessary, calm the person down.
28The information obtained by the call-taker is entered into an I/CAD report. The I/CAD report is available to dispatchers and to police officers who have mobile data in their vehicles. During the call, the call-taker may perform searches on the caller, including CPIC (Canadian Police Information Centre) searches.
29The call-taker obtains the caller’s name, address, phone number where the caller can be reached, and a brief description of the event type. Most event types are assigned default priority numbers. The lower the number, the higher priority the call.
30The following priorities are relevant to this case:
Priority 1 – Hot Shot – danger to life
Dispatched immediately. Dispatcher may assign any unit from anywhere in the city
Priority 2 – Immediate Police Attendance – potential for danger and/or injury is present or imminent
Dispatcher may assign any unit in the zone, adjoining zone, division or if the situation warrants anywhere in the city
Priority 4 – Potential for imminent danger and/or injury is not a factor
Dispatcher may assign the zone unit or it may fall within an Alternative Response
Priority 6 – Potential for danger and/or injury is not a factor
Dispatcher may assign the zone unit or it may fall within an Alternative Response
31The call-takers and dispatchers have the ability to upgrade or downgrade a priority level.
32Call-takers inquire whether someone is an Emotionally Disturbed Person (“EDP”) when the person is not behaving in a rational manner. This information is considered important to protect officer safety. The fact that someone is EDP could result in a call being categorized as EDP or this information could be included in the text of the I/CAD report.
33Calls are dispatched over the radio by a dispatcher according to the priority and the text of the call. The dispatcher knows where the officers are and what they are doing, and can determine their ability to respond to the call.
By the Applicant and the Landlord
34There is no dispute in this case regarding the calls to the police by the applicant and the landlord, how these calls were characterized by the call-takers, and when the police officers responded to the calls. All of the calls were recorded and the recordings were filed into evidence. The time of the call, the event, the priority and the time of dispatch are all set out in the I/CAD reports, also filed into evidence.
35The following facts are taken from the I/CAD reports and the tapes of the calls to the police. I have used the time the applicant and the landlord spoke to the police as the start time for their calls.
36On July 29, 2011 at 10:16 p.m., the landlord called the police and advised them that the applicant was becoming substantially aggressive, it had been going on since the end of April, and she was calling from her neighbour’s. The landlord told the police the applicant came home screaming, banging on the landlord’s door and ripping up documentation for the hearing on August 11, and then went into the basement yelling “get the fuck out of my house, you fucking bitch”.
37The call-taker who took this call categorized the event as Landlord and Tenant and increased the priority to a level 3 from the default priority of 4. The call was dispatched at 10:22 p.m. Officers arrived at the premises at 10:38 p.m. The applicant was not home and the police had no contact with her on this day.
38On July 30, 2011 at 7:15 p.m., the applicant called the police and told them she was having problems with her landlord – that the landlord was harassing her and would not leave her alone. The applicant told the police the landlord was violently banging on the door because she did not like where the green bins were placed. The applicant told the police the landlord had harassed her the day before as well.
39The call-taker who took this call categorized it as Landlord and Tenant and it was automatically assigned a priority of 4. In the I/CAD report, the call-taker noted the applicant sounded EDP. The police were dispatched to the applicant’s call the following day, July 31, 2011, at 7:23 a.m. The police attended at the premises at 7:32 a.m. The applicant was not home and the police had no contact with her that day.
40The landlord also called the police on July 30 at 7:30 p.m. She asked the police whether the applicant had called them because if she had, she would wait for the officers to arrive. The landlord was asked by the police whether she was having a problem with the applicant and the landlord advised that she was not.
41The landlord called the police on July 31, 2011, at 12:13 p.m. She advised them that she was calling to document every event with the applicant. She told the police the applicant had accused the landlord, in front of neighbours, of being on drugs, of taking anti-depressants, and threatened to call the Ontario College of Teachers (the landlord is a teacher). The landlord stated this was “not cool” and wondered whether it was defamatory. The landlord told the police that she did not feel threatened physically. The landlord was asked whether the applicant was mentally ill. The landlord stated it was hard for her to say because she did not feel qualified to comment. When asked if the applicant sounded like an emotionally disturbed person, the landlord stated she felt the applicant was manipulating the situation. The landlord told the police that she did not feel afraid.
42The call-taker who took this call categorized it as Threatening and it was automatically assigned a priority of 6. The police were dispatched to the premises at 12:19 p.m. and arrived at 12:25 p.m. The applicant was not home and the police had no contact with her that day.
43The landlord called the police on August 4, 2011, at 9:55 p.m. and requested services because the applicant was “losing it” and was “freaking out”. When asked if the applicant had mental health issues, the landlord confirmed that she did, but did not know of any diagnosis.
44The call-taker who took this call categorized it as Emotionally Disturbed Person and it was automatically assigned a priority of 2. In the I/CAD report, the call-taker noted that the landlord advised the applicant had mental health issues, but did not know of a diagnosis. The officers were dispatched at 10:03 p.m. The landlord called the police again at 10:13 p.m. to cancel the request for services because the applicant had left the premises. As a result, the police did not attend the premises.
45The applicant called the police four times on August 4 and 5, 2011.
46During the first call on August 4, 2011 at 10:55 p.m., the applicant told the police the landlord was behaving violently and that the landlord was uneasy about an eviction notice. The applicant advised the police that she was afraid the landlord was mentally unstable and was more afraid because she was a teacher. The applicant asked the police whether the landlord had called them and was advised this information could not be disclosed.
47This call was categorized as Advised and it was assigned a priority 6. There were no officers dispatched to this call because the applicant did not request police services.
48The applicant called the police a second time at 11:12 p.m. and complained that the landlord was becoming erratically violent. She also wanted to know whether the landlord had called the police because if she had, she would return to her apartment and wait for them.
49The call-taker who took this call categorized it as Landlord and Tenant and it was automatically assigned a priority of 4. Officers were dispatched at 11:30 p.m. and arrived at the premises at 11:36 p.m. The applicant was not at the premises and the police had no contact with her during this attendance.
50The applicant called the police a third time at 12:41 a.m. on August 5, 2011, and requested the police re-attend because the landlord was harassing her by writing letters and slipping them under her door, not letting the applicant talk to neighbours, and by banging violently on doors. She advised the police the landlord could not calm herself and she believed the landlord was mentally unstable. The applicant said it was worrisome because the landlord was an elementary school teacher and her behaviour was bizarre.
51The applicant called the police a fourth time on August 5, 2011, at 12:57 a.m. to inquire when the police would be attending.
52The calls on August 5, 2011 were categorized as Landlord and Tenant and automatically assigned a priority of 4. Officers Hibbits and Tam were dispatched at 1:14 a.m. and arrived at the premises at 1:22 a.m. This is the first time that the police interacted with the applicant.
53On August 15, 2011, at 8:50 p.m., the applicant called the police and asked to speak with a supervisor. The applicant spoke to the communications supervisor and complained about the landlord’s conduct during the move. She advised the supervisor that the landlord was mentally ill, had been hospitalized before and had acted out violently towards the applicant. The applicant asked the police to attend at 10:30 that night to look over the apartment, confirm there was no damage and give the landlord the keys to the apartment.
54This call was subsequently categorized as Landlord and Tenant and automatically assigned a priority of 4. The police were dispatched at 9:54 p.m. and arrived at 10:38 p.m. Two officers attended: Officer Silva and Officer Tait.
Respondent’s Emotionally Disturbed Persons Policy
55The respondent’s policy on Emotionally Disturbed Persons governs police interactions with persons with mental health issues. Under the policy, an emotionally disturbed person includes any person who appears to be in a state of crisis or any person who is mentally disordered.
56A person in crisis means a person who suffers a temporary breakdown of coping skills, but who often reaches out for help, demonstrating that they are in touch with reality.
57A mental disorder means any disease or disability of the mind. A person suffering from a mental disorder may have to live with a long-term breakdown of coping skills including perception, decision-making and problem solving skills.
analysis
The Law on Discrimination
58Under s. 1 of the Code, every person has a right to equal treatment with respect to services without discrimination because of a number of grounds of discrimination, including disability.
59The applicant bears the onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, the applicant must prove that it is more probable than not that one or more Code grounds were a factor in the respondent’s actions. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83. If an applicant makes out a prima facie case of discrimination, the evidentiary burden shifts to the respondent to provide a rational explanation which is not discriminatory. It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence. See Shaw v. Phipps, 2010 ONSC 3884 at para. 77, upheld 2012 ONCA 155. If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that an inference of discrimination is more probable from the evidence than the explanations offered by the respondent.
The applicant’s assessment as EDP
60The first issue to determine is whether the applicant was discriminated against by the police when she was assessed as EDP by the call-takers and by the officers who responded to her calls. In my view, she was not, for two reasons.
61One, the applicant self-identifies as someone with an anxiety disorder. During her evidence, the applicant acknowledged that she has a mental health issue. In her final written submissions, the applicant states she is mentally ill. The applicant fits within the definition of EDP. This is not a case where the applicant was perceived to have a disability that she does not have.
62Two, it is not discriminatory for the police to assess people as EDP. Identifying someone as EDP is determining whether the person is in a state of crisis or has a mental health disability. Without this assessment, the police will not know whether members of the public require accommodation in the provision of services. Knowing someone has a mental health issue is critical to ensuring that they are provided with the necessary supports by the police. This is important not only for the safety of officers (as many witnesses for the respondent testified), but also for the safety of the individual who is requesting police services, as well as for members of the public.
63The issue in this case is not whether the applicant was wrongly identified as EDP, but rather, whether she experienced disadvantageous treatment from the police because of this identification.
64The applicant alleges that the landlord’s calls received a higher priority and were responded to more quickly than the applicant’s calls because the applicant was assessed EDP. The applicant submits that implicit in the EDP assessment is the belief that the applicant could be dangerous and this is why the landlord’s calls were given a higher priority. The applicant alleges further that the police failed to investigate her harassment complaint against the landlord because she was believed to be incredible as a result of the EDP label.
Did the applicant receive less responsive service from the police because she was assessed EDP?
65This case is unusual because the conduct of the applicant and the landlord with the police was very similar. They were both calling the police to get their assistance with their landlord and tenant dispute and the conflict that had arisen as a result of the dispute. They each complained about being afraid for their own safety because of the actions of the other person. Both made allegations about the other person’s mental health. Even though their conduct was very similar, it was only the applicant that was assessed as EDP by the police. The issue before me is whether this assessment resulted in the applicant receiving less responsive police services when compared to the service provided to the landlord. In order to answer this question it is necessary to review the calls, their priority and how they were responded to by the police. This information is summarized in the chart below:
Date
Caller
Event Type
Priority
Response Time
July 29
Landlord
Landlord and Tenant
3
22 minutes
July 30
Applicant
Landlord and Tenant
4
12 hours and 17 minutes
July 30
Landlord
Inquiry
July 31
Landlord
Threatening
6
12 minutes
August 4
Landlord
EDP
2
Call Cancelled
August 4
Applicant
Advised
6
No Services Requested
August 4
Applicant
Landlord and Tenant
4
24 minutes
August 5 (two calls)
Applicant
Landlord and Tenant
4
41 minutes
August 15
Applicant
Landlord and Tenant
4
8 minutes after requested time
66The information on this chart shows the landlord’s calls were assigned a higher priority than the applicant’s calls on two occasions. The issue is whether this higher priority resulted in a faster response time by the police to the landlord’s calls.
67The respondent asserts that the applicant did not experience a delayed response from the police and when she did, it was because there were no police units available to respond to respond to her calls. The respondent called the following evidence to support this assertion.
July 30, 2011
68The most significant delay experienced by the applicant was in response to her call to the police on July 30, 2011. The police responded 12 hours and 17 minutes after the call.
69Constable Silva was dispatched to the applicant’s call the morning of July 31, 2011. He testified an individual was shot by the police during the Caribana Festival the night before. He testified further that this event would have been given the highest priority – Priority 1 – and would have required a great deal of police resources. Units from all over the City are dispatched to Priority 1 calls.
70This evidence is supported by the I/CAD report of July 30 and 31, 2011, which shows no units were available to respond to the applicant’s call the evening of July 30 and the early morning of July 31. The applicant called the police at 7:15 p.m. on July 30, 2011. The I/CAD report states there were no units available to attend the call at 9:02 p.m. on July 30, and at 12:50 a.m. and 6:50 a.m. on July 31, 2011. The call was dispatched at 7:23 a.m. on July 31 and the officers arrived at the premises at 7:32 a.m. The applicant was not home.
71On July 31, 2011, the police were dispatched to another call ahead of the applicant’s request for services. At 6:11 a.m. that morning, the police received a noise complaint that was given a priority of 6. The call was dispatched at 7:03 a.m. and the police officers arrived on the scene at 7:13 a.m.
August 4 and 5, 2011
72The applicant made a series of calls late evening on August 4 and early morning on August 5. During a two-hour time period, the applicant called the police at 10:55 p.m., 11:12 p.m., 12:41 a.m. and 12:57 a.m. The applicant did not request services on the first call.
73The applicant did request services on the second call at 11:12 p.m. There were no units available at 11:18 p.m. and 11:23 p.m. The call was dispatched at 11:30 p.m. and the officers arrived at the premises at 11:36 p.m., 24 minutes after the call was made. The applicant was not home.
74The applicant called a third time at 12:41 a.m. to request that the police re-attend. There were no units available at 12:44 a.m. She called a fourth time at 12:57 a.m. The call was dispatched at 1:14 a.m. and the officers arrived at the premises at 1:22 a.m. This was the first time the applicant interacted with the police.
August 15, 2011
75On August 15, 2011, the applicant called the police at 8:50 p.m. The call was dispatched at 9:54 p.m. and the officers arrived at the premises at 10:38 p.m. There were no units available at 8:53 p.m., 9:52 p.m. and 10:13 p.m. The applicant had requested that the officers attend at 10:30 p.m.
Findings
76It appears that on two occasions, the landlord’s calls were given a higher priority number than the applicant’s calls. However, the issue is not the number assigned to the calls, but rather, whether the applicant’s calls received less priority in terms of the actual police response. The purpose of the priority is to indicate the seriousness of the call and the speed with which the police should respond: the lower the number, the higher the priority given to the call. Thus, the question before me is whether the applicant received delayed service when compared the landlord and if so, whether the applicant’s EDP assessment played a role in the delay.
77In my view, the evidence establishes that the applicant did not receive delayed service from the police when compared to the landlord. While there is no question that the applicant experienced significant delay in response to her call on July 30, the landlord experienced the same delay. They had both called for police service on July 30, 2011. There was, therefore, no differential treatment between the applicant and the landlord on July 30 and 31, 2011. The applicant and the landlord experienced delayed service because there were no units available to respond due to the police shooting at Caribana.
78With respect to the other calls by the applicant, there was not a significant difference in the response times provided to the applicant and the landlord. Regarding the applicant’s first request for services at 11:12 p.m. on August 4, 2011, the police officers attended in 24 minutes. This is similar to the response time provided to the landlord. The applicant’s calls at 12:41 a.m. and 12:57 a.m. were responded to in 41 minutes. While this response time was a bit longer than the response time provided to the landlord (by 20 minutes or so), this was likely due to the fact that the applicant was not home when the police attended the first time and this call was for a re-attendance. There was no delay experienced by the applicant in response to her call on August 15, 2011. The officers attended eight minutes after her requested time.
79The applicant has failed to establish that she experienced delayed service from the police when compared to the service provided to the landlord. As a result of this finding, it is not necessary to determine whether the applicant’s EDP assessment played a role in the delay nor is it necessary to consider the respondent’s non-discriminatory explanation for the delay.
Did the police officers refuse to investigate the applicant’s harassment complaint?
80Two police officers, Officers Hibbits (now Sahadath) and Tam, responded to her 12:41 a.m. call on August 5, 2011. They arrived at the premises at 1:22 a.m. This was the first time the applicant had contact with the police.
81The applicant testified that the officers were very brusque with her. The female officer (Hibbits) asked to see the eviction notice and said to the applicant “why don’t you just move out?” The applicant testified the officers refused to hear the reason for her call. She told the officers that she had anxiety and not to be so loud. One of the officers, she did not specify who, said “either tell us the move-out date or we won’t help you”. The female officer asked the applicant what was wrong with the first eviction notice. The applicant summarized her complaint as follows:
.. I wanted her [the landlord] to leave me alone, you know? I just wanted to be left alone until I moved out. That’s all I wanted to do. I don’t think the officers even paid attention to anything I was saying. They were just more concerned about making sure that I got the message to move out. …. The eviction process was set by the landlord filing the application and that’s all I can say. But I think I have the right to be left alone. And they didn’t assess my needs, they didn’t assess what I was trying to say to them. It seemed like they were very narrow minded and they felt that they had to control me. They needed to send the message that, “Hey, you know what? You’re bothering us with this call. And you know what, you’re just going to have to move out, because the landlord doesn’t like you” That’s basically the impression I got from them, that I had to be controlled, that they needed to tell me what to do. And that if I didn’t give them a move-out date, which he exactly said, “If you don’t tell us when you’re going to move out, we’re not going to help you”. At that point I left. And at that point I then ran to a payphone and I complained to the duty desk, and I clearly told them that I had a discrimination complaint. And as usual, they wouldn’t listen.
82The applicant asserts that the police officers failed to investigate her complaint against the landlord. During cross-examination, the applicant testified that the landlord’s criminal behaviour was “not leaving her alone”. She testified the landlord had never sat on her porch before and began to sit on her porch when these events occurred. The applicant would arrive home at 1:15 in the morning and the landlord would finally go into the house. The applicant believed the landlord was not leaving her alone and found her behaviour threatening. The applicant testified that all she wanted the police to do was to tell the landlord to leave her alone.
83The applicant testified that the impression she got from the officers was she needed to be controlled – that they had to tell her what to do – and if she did not give them a move-out date, they were not going to help her. It was for this reason that she left the officers and filed a complaint.
84Constable Tam testified at the hearing and his notes were entered into evidence. Constable Tam testified that he and Constable Hibbits were met by the applicant when they arrived at the premises. The applicant was angry, agitated, talking very fast, loud and very aggressive. The applicant would not answer any of the questions posed by the officers – why they were there and what they could do for the applicant. Constable Tam testified the applicant said she did not need help from the police and walked away, saying she would file a complaint. Constable Tam testified further that they then spoke to the landlord who appeared very rational and advised the matter was still before the courts. The landlord denied any wrong doing. This evidence is confirmed by Constable Tam’s notes.
85Constable Tam testified that he notified the dispatcher that the applicant had mental health issues. He asked the dispatcher to send them back to the premises if there was another call from the applicant. He did this because they knew the people involved in the matter and if there was another issue, they could go back and deal with it.
86The evidence of Officer Tam is confirmed by the I/CAD report for August 5, 2011. He entered the following information into the I/CAD at 2:05 a.m.:
Dealt with the F…..F very EDP…Called the station to complain about us
87Constable Tam testified that he identified the applicant as EDP because she was irrational, talking very fast, very angry, would not answer the officers’ questions, and appeared to have some sort of mental health issues. When asked by the applicant during cross-examination why he assessed her as EDP, he said:
Your demeanour. The way you acted. You were yelling, you were screaming, you wouldn’t answer any of our questions. And then you ended it by informing us that you were going to make a complaint against us, right? And you walked away saying, “I don’t need your help”, when you, in fact, called us.
88Constable Hibbits testified that she and Constable Tam met the applicant up the road from the premises. She was very agitated and difficult to get questions from. Constable Hibbits testified the applicant seemed very hyper and was a bit uncooperative. They were trying to assess what was going on and the applicant did not want to answer any of the officers’ questions. Constable Hibbits testified that the applicant stormed off and said she did not want anything more to do with them.
89Constable Hibbits’ notes were filed into evidence. Her notes state the applicant met the officers down the street from the address. The applicant was very agitated, her story was all over the place, she was very hyper and uncooperative, refusing to answer the officers’ questions and not providing information. Constable Hibbits wrote the applicant just wanted to tell her side of the story and left saying she did not want the officers’ help.
90Constable Hibbits’ notes indicate they then spoke to the landlord, who advised that it was an ongoing issue, that there was no wrong doing and the matter was currently before the courts.
91Constable Hibbits completed a field information report for this occurrence and noted the following:
Officers were called for a landlord tenant dispute by [J.M.] who is the tenant. [G.A.] is the landlord. This is an ongoing problem which officers have been called to several times by [J.M.] [G.A.] has the matter before the courts, for an eviction of [J.M.] as she intends to use the entire house for herself. [J.M.] appears EDP and has been causing a disturbance with both the landlord and the neighbours. [G.A.] advises that she hopes to have this situation rectified and finalized with the sheriff in the next couple of weeks
92On August 5 at 2:38 a.m., the applicant sent an email to various vice-chairs at the Tribunal, the then chair of the Tribunal, former counsel to the respondent, and others. The applicant said she called the police because the landlord was banging on her door repeatedly with her fists and kicking because she was upset that the applicant had removed the green bin by an inch. The applicant complained the landlord was constantly coming to her apartment to tell the applicant that she was calling the police and asking neighbours to support her attempt to evict the applicant. The applicant complained that the officers refused to investigate her actual complaint and did not care about the applicant’s safety. The applicant stated she was afraid of the landlord and more so because she had the support of the police.
93In order to make findings about what happened on August 4 and 5, I must evaluate the reliability and credibility of the testimony of the applicant and Officers Hibbits and Tam. In evaluating their testimony, I have assessed its probability, logical connection with other findings and support from independent evidence.
94The applicant called the police several times on August 4 and 5, 2011. As stated earlier, these calls are tape-recorded. During the first call, the applicant complained the landlord was uneasy about an eviction notice and was behaving violently by banging on the door. The applicant told the call-taker that the landlord was unhappy the applicant was talking to her neighbours. The call-taker asked the applicant how the police could help. The applicant replied the call-taker should figure how out to deal with this. When the call-taker asked the applicant if she wanted to file a harassment complaint, the applicant replied that she did not care what the call-taker did and asked to speak with the call-taker’s supervisor.
95During the second call, the applicant told the call-taker that the landlord would not let her talk to her neighbours. When the call-taker asked the applicant what was happening now, the applicant told the call-taker that the landlord had claimed she had called police. The applicant wanted to know if this was true because if she had, the applicant would go home and meet them rather than go to Walmart as she had intended. The call-taker told the applicant that she could not provide this information. The call-taker asked the applicant if she wanted to file a harassment complaint and the applicant declined saying she would let the mayor listen to the tape. The applicant said she was quite agitated by the fact that she could not speak to her neighbour. The applicant told the call-taker she would put her complaint in writing and mail it out.
96When listening to the tapes of the applicant’s calls to the police on August 4, it is apparent that the applicant became easily frustrated when asked about the nature of her complaint against the landlord. During the first call, the applicant told the call-taker to figure out how to deal with her complaint. During the second call, the applicant declined to make a complaint against the landlord. She inferred that she would be complaining to the mayor and putting her complaint in writing. The applicant did complain in writing when she sent her email at 2:38 a.m. on August 5, 2011.
97The evidence of Officers Tam and Hibbits is consistent with her behaviour with the call-takers the evening of August 4. When the applicant was asked for particulars of her complaint against the landlord by the call-takers, she became frustrated and refused to give them.
98In my view, it is more likely than not that the applicant became frustrated with Officers Hibbits and Tam when they asked why they were called. There is no question that the officers believed they were attending a landlord and tenant matter and the fact of the matter is that it was. The applicant became frustrated because the officers believed the easiest resolution to the landlord and tenant problem was for the applicant to comply with the eviction notice and move out (which she had planned to do). It was at this moment that she refused to answer the officers’ questions.
99I therefore find that the officers did not refuse to investigate the applicant’s complaint against the landlord. Rather, the applicant prevented the investigation because she walked away and refused to participate. The officers continued their investigation when they interviewed the landlord, who confirmed she and the applicant were involved in a landlord and tenant matter that was before the courts.
Did the police officers discriminate against the applicant on August 15, 2011?
100Two police officers, Officers Silva and Tait, attended at the premises on August 15 to assist the applicant in moving out. The applicant wanted the police there so that no complaints could be made by the landlord regarding hazards in or damage to the applicant’s apartment. The police walked through the applicant’s apartment and confirmed it was in good order. Officer Silva returned the applicant’s keys to the landlord.
101The applicant testified that she felt intimidated by the officers because Officer Silva spoke in a booming voice and Officer Tait stood on guard at the applicant’s apartment door. She testified that her apartment door was left open during her discussions with the police and she objected to this because she was worried the landlord would be able to overhear their conversation. The applicant also testified that Officer Silva spoke sternly to the landlord when he delivered the keys to her.
102While I appreciate that the applicant may have felt uncomfortable during her interactions with the police on August 15, 2011, there is no evidence to support a finding of discrimination. The applicant did not experience any adverse treatment on this date. The police officers attended at her apartment at the time she requested and completed the task that she asked them to do – to ensure her apartment was in good order so that no complaints could be made by the landlord. The applicant acknowledged this in her testimony below:
So, I think in good judgment I did call the police so that they could come, make sure she got the keys, check out the place, make sure that there’s nothing there. Silva was really honest with me, he goes, “Really we’re supposed to be here for the peace”, but he turns to me and he goes “This place is bonkers”. He goes, “Be honest… to be honest”, he goes, “most people don’t leave their places like this”. And he goes, “You’ve done a really nice job cleaning and you’ve maintained this place”. He did not see any holes in the walls, he didn’t see any damage, nothing. He said, “It’s great”.
103Rather than discriminating against the applicant, the police officers de-escalated the situation between the applicant and the landlord so that the applicant could complete her move-out. The landlord and tenant relationship ended on August 15, 2011.
Did the respondent reprise against the applicant?
2013 Protocol for Responding to Applicant’s Requests for Service
104The applicant testified that on or about June 5, 2013, there was a murder/suicide at her apartment building – that someone jumped or was pushed from an apartment in the building. Detective Ford was involved in the police investigation and interviewed the applicant’s sister because she had heard arguing in the apartment before the incident occurred. The applicant alleges that during this interview, Detective Ford ripped out notes from his memo book and re-wrote them in his book. The applicant believes this action compromised the police investigation.
105On June 9, 2013, the applicant complained to Staff Sergeant French about Detective Ford ripping out notes from his memo book. The applicant alleges that during the telephone call, Staff Sergeant French said to her, “we’re going to have to come up with a mechanism like we had last time to deal with your complaints”.
106The police had a former protocol with the applicant where her calls were directed to Patricia Fleischman, the Vulnerable Persons Co-ordinator with the respondent. Although this protocol existed, it was not consistently followed. The applicant preferred to speak with Sergeant Dale, with whom she had a good relationship.
107The applicant asserts that the reference to re-instituting the old protocol was a form of reprisal for bringing this Application.
108Staff Sergeant French testified that he spoke to the applicant approximately three dozen times between 2008 and 2013. On June 7, 2013, he received an e-mail message from Patricia Fleischman advising that 14 Division had received a significant increase in calls from the applicant. Patricia Fleischman advised further that she had also received a considerable number of voice-mail messages from the applicant.
109Staff Sergeant French testified further that he received a call from the applicant on June 9, 2013 at 5:27 p.m. regarding a complaint the applicant had filed with the Attorney General regarding Detective Ford’s notes. Staff Sergeant French testified the applicant was very manic, very agitated and had a very loud voice during this call. He conceded that during this conversation, he may have made reference to arrangements that had been in place in the past where the applicant’s contact with the police was through Patricia Fleischmann. Staff Sergeant French testified that this protocol was not renewed in 2013 and that no limitations were placed on the applicant’s ability to speak to anyone at the respondent.
110The applicant acknowledges that the respondent did not renew its previous protocol for dealing with her complaints to the police. The adverse treatment alleged by the applicant is not the protocol, but rather, the threat to reinstitute the protocol.
111The Code protection against reprisal is as follows:
- Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
112By filing an Application, the applicant invoked the protection found in section 8. The question I must answer is whether she experienced “reprisal” for instituting and participating in a proceeding under the Code.
113I am guided by the Tribunal’s case law which states that, unlike other protections in the Code, the applicant must show that the respondent “intended” to retaliate against her for enforcing her rights. That is, the applicant must show that not only did the respondent treat her adversely after she instituted this claim, but that this adverse treatment was intended to retaliate against her for so doing.
114There is no evidence, beyond the applicant’s own belief, that the reference to the former protocol by Staff Sergeant French was made because the applicant brought this Application. In fact, the applicant testified that she asked Staff Sergeant French if he minded her contacting Sergeant Dale because of the human rights application and he said that was not a problem. She testified further that she had been speaking with Sergeant Dale for 10 years.
115In my view, the reference to the former protocol was made because of the nature of the complaint to Staff Sergeant French, as well as the frequency of her communications with the police, and not because she commenced this Application. Because of the recent spike in calls from the applicant and the communications from Patricia Fleischman, Staff Sergeant French was aware of the protocol and mentioned it to the applicant. However, the protocol was never re-instituted.
116Finally, the applicant testified that when she first called the police to complain about the actions of Detective Ford, she spoke to another staff sergeant who advised her there were no resources available and that she would not be receiving any more help. The applicant asserts that this was a denial of services. I disagree. The applicant did not contact the police to obtain police services. She contacted the police to complain about the actions of Detective Ford in a police investigation that was unrelated to her. In any event, the applicant was not denied assistance as Staff Sergeant French spoke to her about her concerns. There is also no evidence that the applicant called for police services after June 2013 and was denied.
117For these reasons, the reprisal allegation is dismissed
Conclusion
118The applicant has failed to establish that she was treated differently from her landlord because the police assessed her as EDP. The landlord and the tenant both received delayed service on July 30 and 31, 2011 because of the Caribana shooting and they were provided with a similar level of service in response to their other calls. At most, the applicant received a differential response time of 20 minutes, a difference that is not significant.
119The police did not refuse to investigate the applicant’s complaint. The applicant became frustrated by the police officers’ characterization of the dispute as a landlord and tenant matter (which it was) and refused to cooperate with the police. Rather than discriminating against the applicant on the day she moved out of the apartment, the police attended to ensure it was in good order so that no complaints could be made by the landlord. They did this to de-escalate the situation and allow the applicant to move out.
120Finally, the applicant has failed to establish that she was reprised against when Staff Sergeant French referred to the former protocol to deal with her complaints to the police. That referral was made because of the nature and volume of complaints being made by the applicant at that time. Although the protocol was referred to, it was never implemented.
order
121This Application is dismissed.
Dated at Toronto, this 18^th^ day of August, 2017.
“Signed by”
Jennifer Scott
Vice-chair
