J.R. v. Ontario (Community, Safety and Correctional Services), 2017 HRTO 1273

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.R. Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community, Safety and Correctional Services Respondent

DECISION

Adjudicator: Josée Bouchard Date: September 27, 2017 Citation: 2017 HRTO 1273 Indexed as: J.R. v. Ontario (Community, Safety and Correctional Services)

APPEARANCES

J.R., Applicant: Self-represented Her Majesty the Queen in Right of Ontario as represented by the Minister of Community, Safety and Correctional Services, Respondent: Aisha Amode, Counsel

Introduction

1This is an Application filed on June 21, 2016 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to the provision of goods and services because of disability, creed, family status and marital status.

2On July 7, 2017, the Tribunal held a Preliminary Hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that:

a. It appears that some of the allegations may be untimely; and

b. There is no reasonable prospect that the Application or part of the Application will succeed.

Background

3The applicant alleges discrimination with respect to the provision of goods and services on the grounds of disability, creed, family status, and marital status in relation to 18 incidents involving the Ontario Provincial Police (“OPP”) which is part of Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (the respondent).

4I believe the applicant genuinely feels that the OPP neglected their duties, failed to properly investigate her complaints and treated her inappropriately and without respect or understanding during their interactions from 2010 to 2016. However, for the reasons outlined below, I find that the applicant has not shown that the respondent adversely treated her because of disability Code related ground with respect to the services they provided to her.

5The positions of the parties related to each alleged incident are described below.

Incidents 1 and 2– November 20 to 24, 2010 - Altercation with Former Husband and Mother-in-Law

The Applicant’s Submission

6The applicant alleges that on November 20, 2010, her husband at the time arrived home in a drunk-induced state, called her profane names in front of her children and was extremely violent with her. The applicant also alleges that her then husband’s mother was extremely violent with her. Her husband begged her not to call the police and the applicant refrained from doing so.

7The applicant alleges that the applicant’s mother-in-law told the police that the applicant had allegedly assaulted her husband. The applicant maintains that the claims were false and vindictive in nature.

8However, the applicant also stated that the next day, she drove with her 5-month old daughter to the hospital to pick up her husband who required surgery from injuries from shattered glass as a result of the attack. Without legal counsel or notice, two male OPP officers interrogated the applicant and her husband in a closed hospital room.

9The applicant was charged with assaulting her husband. The applicant alleges that she did not know why she was arrested, that her statement to the OPP was “twisted, and […] was falsely used as an act of aggression” and that there was no investigation. The applicant states that she handed over her baby to her father and she felt humiliated. She spent numerous hours in a jail cell and was finger printed, photographed and released that evening.

10The applicant called the OPP on November 24, 2010, three days after the alleged violent acts because she began reliving what happened. She states that she explained to the OPP what had happened and was allegedly told: “you are grasping at straws” and that the OPP did not believe her story.

11The applicant alleges that the OPP did not take her claims seriously and wrote in their report that she was mentally ill and not taking her prescribed medications. At the time the applicant was still breastfeeding and suffering from post-partum depression. Her physician had advised that it would be temporary and she was not prescribed medication at the time. The applicant alleges that her version of events was treated as a fabrication.

12The applicant alleges that she felt discriminated against and helpless, unsafe and unsupported. On December 20, 2010, she entered into a peace bond. The applicant thought that the OPP would shred the details of the incident and allegations and never use them against her in any way or even as a result of a criminal investigation. The applicant believes that the OPP never shredded the documents and still has a file on her.

Respondent’s Submission

13The respondent submits that the facts giving rise to the allegations set out in incidents 1 and 2 occurred in 2010. The next incident cited in the Application does not occur until 2014 and the bulk of the incidents occurred in 2015. The respondent argues that incidents 1 and 2 are well beyond the one year statutory delay for filing an Application. The respondent contends that the 2010 incidents are not part of a series of incidents because there is a more than 3 year gap between the first two incidents and the next one in the chronologic chain.

Applicant’s Observations

14The applicant describes that her husband continued to be violent. She states that at the end of June 2012, he arrived home one night after work in an alcohol-fueled, psychosis-induced state, threatening her life, in front of her 8 year old daughter. She fled her home with her youngest daughter and stayed with a relative. Her husband refused to get help resulting in the break-down of the marriage. The applicant describes that it was extremely tragic, traumatic and life-changing. Initially, she made no contact with the OPP over the incident; however she called Children’s Aid Society (“CAS”) for help. She was worried about the safety of her children in their father’s care because of his violent and alcoholic tendencies. She invited a CAS worker to visit her at her mother’s home. The applicant states that the worker saw that her youngest child was in good, loving and protective hands. CAS encouraged her to follow-up with the OPP explaining that it was required for her to adequately protect her children and for the purpose of the CAS intervention. The applicant reported the incident and the OPP subsequently charged the applicant’s husband with assault.

15The applicant states that she took refuge in Ottawa. Meanwhile her husband, after charges were laid against him, retaliated by filing an interim custody order in family court. The applicant states that a family court judge granted her husband a “defacto” temporary custody order. The applicant was not made aware of the proceeding or order. The police were called and took the applicant’s youngest daughter. An emotionally charged custody dispute ensued until October 2012, when the applicant and her former husband agreed on joint-shared custody.

Incident 3 - June 26, 2014 – Alleged Violation of Custody Arrangement

The Applicant’s Submission

16The applicant alleges that on June 26, 2014, she made elaborate birthday plans for her daughters. Their father had personally promised that, after taking their daughters on a short trip, he would drive the girls to the applicant. The applicant’s former spouse did not show up on time and after several unanswered calls, the applicant finally reached him. The applicant alleges that he was refusing to drive the girls for their scheduled parenting week.

17The applicant followed up with a phone call to the OPP to report her former spouse’s interference with the custody order. She asked the OPP to assist with the return of her children. The applicant alleges that the OPP officer said that if the applicant was not happy with the custody order, she needed to go back to court to change it.

18According to the applicant, the OPP chose not to get involved and neglected their duties as they chose not to enforce the custody order. The applicant believes that the OPP’s inaction was based on preconceived notions of her character based on family and marital status.

The Respondent’s Submission

19The respondent’s record indicates that this incident occurred on July 11, 2014. The applicant called the OPP from a cottage in Quebec to say her former spouse was keeping the children from her. The applicant stated that, by agreement, she was to have the children with her starting on July 11, 2014. The OPP contacted the children’s father by phone and he advised that they were packing up their things. A time and location for the children to be exchanged was identified. The OPP called the applicant and left her a voicemail with the details. The incident was determined to be a misunderstanding and no further action was necessary. The respondent argues that there was nothing discriminatory in the manner in which the incident was handled and the applicant pled no facts to connect the alleged treatment to a Code ground.

Incident 4 - January 20, 2015 – Objects in Backyard

The Applicant’s Submission

20The applicant states that on January 20, 2015, the applicant’s oldest daughter reported seeing an object flying low, with a bright light peering into her bedroom window. The applicant called the OPP to investigate. Two OPP officers visited the applicant’s home. One OPP officer, allegedly in a condescending way, explained that if the applicant and her daughters were seeing what looked like drones, it was most likely geographical drones and/or surveillance drones mapping out the land for real estate. The applicant states that she was satisfied with this response.

21Following that visit, the applicant states that she made one follow-up call to the OPP stating she had video footage of what they were seeing. The applicant alleges the OPP officer made a call to the CAS to report on the applicant’s mental health.

22The applicant feels that the OPP’s call to the CAS was a malicious referral as her children’s lives were not at risk and she had not committed any crimes. Absent reports of physical harm or neglect in relation to her children, there was no alleged criminal activity.

23The applicant explains that CAS followed-up with an unannounced visit to the children’s school to question them about the applicant’s mothering skills.

24The applicant states that at that time her mental health was adequately managed and she had never put her children at risk or harmed them. The applicant believes she was coerced into signing a mental health consent form to be kept on file by CAS. She felt that the OPP targeted and discriminated against her. She believes the OPP had flagged her as “aggressive” in their database from 2010 onwards.

The Respondent’s Submission

25The respondent’s record indicates that the applicant called the OPP on January 12, 2015 to report seeing drones flying over her house every night. When an OPP officer attended at her house, the applicant was not there. The applicant called again to report drones on January 13, 2015 and an OPP officer attended at her house and spoke with the applicant. When the applicant showed him the lights in question, she was advised that they were airplanes. The OPP officer entered the applicant’s residence and spoke to her two children who appeared to be safe and secure. He concluded there was no basis for a mental health apprehension. He advised the CAS and they said they would attend the residence to confirm the children’s wellbeing.

26The respondent maintains that the applicant contacted it again on January 18, 2015 to report that people were spying on her and there were drones. She indicated that she was fearful and she was leaving her residence to go north. When the OPP attended, the applicant was not there. A notation was made that if she was located her mental health should be assessed.

27The respondent submits that there was nothing inappropriate or discriminatory about how this incident was handled. The applicant’s conduct gave the attending OPP officers some concern for her mental wellbeing and, given the fact that there were young children involved and the CAS had an on-going involvement with the family, the CAS was notified so it could follow-up as deemed appropriate. The respondent argues that while the applicant’s mental health was a factor in how this incident was handled, there was nothing discriminatory about the respondent’s handling the matter and the applicant pled no facts to support such a contention.

Incident 5 - May 28, 2015 – Apprehension of Children

The Applicant’s Submission

28The applicant states that on May 28, 2015, as she waited for her children to arrive from their usual bus route, the bus drove by without dropping off her children. The applicant panicked and made frantic phone calls to the children's father, to the school and the bus company.

29The children's father had been incarcerated for approximately 3 months at the time and the applicant had assumed full custody. The applicant states that she went into an extreme state of triggered panic. She had not been contacted by CAS to inform her of what had happened to her children. She states that there was no reason for her to anticipate CAS’s involvement as she never harmed her children.

30The applicant explains that she phoned the OPP. She reported that her children had been kidnapped and wanted to know if charges could be laid against the CAS. The applicant alleges that the OPP officer spoke to her with contempt and told her that she could not press charges against CAS but individuals at CAS could be charged.

31The applicant recalled that the OPP officer questioned the applicant about her disability and stated he knew she had not been working. He was also aware of the applicant’s family and marital situation, being a separated mother. The applicant responded that she was still technically employed, and was on disability.

32The applicant remembered experiencing a mental health crisis; she was panicked, fearful, apprehensive and concerned, but she was not aggressive. The applicant states that two OPP officers arrived unannounced to the applicant’s house and they spoke and treated her aggressively. One of the OPP officers hastily said that if the applicant called 911 or the OPP again, they would charge her with public mischief. The applicant remembers the OPP officer calling her “agitated and aggressive”.

33The applicant recalls that the OPP officers threatened to arrest and charge her. The applicant believes that the strain and stigma attached from the events of November 2010 and July 2012 got her flagged by the OPP as being violent and aggressive.

34The applicant states that the OPP officers told her if she called 911 again she would be charged with public mischief. The applicant ran into the house to get a phone and called 911 in front of the officers. The applicant explains that she was in a terrible state and admitted to phoning 911 numerous times that night.

The Respondent’s Submission

35The respondent submits that the applicant’s two daughters were apprehended by the CAS on May 28, 2015. The respondent maintains that the applicant called 911 on May 28, 2015 twice and asked to have charges laid against the CAS for harassment and kidnapping. The OPP officer called the applicant who allegedly sounded intoxicated. The applicant demanded that the officer lay criminal charges against the CAS because every time her daughter complained to a teacher or called the CAS to report that the applicant had disciplined her, the CAS showed up and accused her of being a bad mother. The respondent contends that the applicant called 911 several more times with the same complaint and said she would continue to call until someone dealt with the situation.

36Two OPP officers attended the applicant’s residence to caution her about repeatedly calling 911. They advised her that if she continued to do so, she would be charged with public mischief. The respondent maintains that the applicant became hysterical and ran into the house to get a phone. She called 911 in front of the officers asking the operator to have the officers who were harassing her removed from the scene. The respondent claims that the applicant called 911 a total of 9 times.

37The respondent contends that the OPP officers conducted themselves appropriately throughout the interaction. The responding officers could have charged the applicant with public mischief for repeatedly calling 911 about the same issue and for continuing to do so after she had been cautioned, but they exercised their discretion not to do so. The applicant pled no facts to support a contention that she was differentially treated by the respondent.

Incidents 6 to 10 - The Applicant is Charged

The Applicant’s Submission

38The applicant maintains that on June 3, 2015, the CAS informed the OPP officers that they had apprehended the applicant’s daughters on May 28, 2015 due to alleged assaults by the applicant on the older child. According to the applicant, the OPP pursued a criminal investigation into her daughter's unsubstantiated allegations. The applicant believes that the OPP made false and discriminatory comments about her character, her mothering abilities and her mental health. The applicant allegedly attended at the OPP and questioned why they made a mental health diagnosis. While at the police station, the applicant endured a panic attack forcing her to leave and cut her visit short. She states that she drove to her cottage up north as she did not feel safe being at the OPP detachment and feared more abuse of authority and process.

39The applicant alleges that in the evening, four OPP officers went to her house unannounced and blocked the road and the applicant’s driveway. The applicant states she felt she was being treated like a criminal. The OPP officers questioned the applicant’s neighbors about the allegations of violence against her children. The applicant states that the neighbours denied the violence against her childrenhappened.

40The applicant believes that the CAS and the OPP acted in collaboration and they failed to conduct a proper criminal investigation. She believes that the OPP officers withheld critical police services by not treating her fairly and not properly interviewing her and all those involved.

41The applicant maintains that she was informed by neighbors while away that the OPP went to her home several times during the weekend, relaying messages to her neighbors that they wanted to hear the applicant’s version of events. The applicant phoned the OPP officer on June 6, 2015 asking for an interview.

42The applicant thought that she would get a proper opportunity to talk about what had happened with her daughters and explain how individuals at CAS had acted in bad faith towards her and her children.

43On June 8, 2015, the applicant went to the police station on the pretense that she was going to be interviewed in a standard investigation. She arrived and instead of being interviewed, she was told by the OPP officer that she was being charged with assault against her child. The applicant alleges that she was not interviewed.

44The applicant states that she reacted by bending down to catch her breath and to mask the pain she was feeling inside. The applicant alleges the arresting officer told her to “Stop acting crazy”. The applicant notes that she wasn't acting crazy, she was distraught, upset and re-traumatized by the alleged unfair, discriminatory OPP investigation. The applicant was given a “Promise to Appear” on June 12th, 2015, she was fingerprinted and her photo was taken.

45The applicant believes the OPP and CAS conspired to further traumatize her, tear her apart, degrade her and destroy her life and her family and they did not inform her of decisions made regarding her children. She also is of the view that due process was not followed and she fears that her children were coached by the CAS and OPP.

46The applicant states that she did not see, speak to or hold her children from May 2015 until August of 2015 when she had to draw funds to retain a family lawyer and a criminal lawyer, to gain access to her children.

The Respondent’s Submission

47The respondent maintains that on June 3, 2015, the CAS contacted the respondent to advise it that the applicant’s 4 and 11 years old daughters had been apprehended on May 28, 2015 due to alleged assaults by the applicant on the older child. As a result, the OPP interviewed that child on June 4, 2015. The child recounted an incident of violence by the applicant. The child also told the OPP officer that this had happened in the past and that the applicant had hit her sister a number of times. The child told the OPP officer that she was scared of the applicant. She also stated that her mother lies about things.

48The OPP charged the applicant with three counts of assault on June 8, 2015. She was released on a Promise to Appear with an Undertaking not to communicate directly or indirectly with her two children or their father. The CAS placed the children in the care of their father.

49On April 5, 2016 the applicant was convicted of the three counts of assault following a full trial. On October 18, 2016 she was sentenced in relation to those offences. She received a conditional sentence order of 180 days, the first 90 under house arrest and 2 years’ probation.

50The respondent argues that while the applicant may not have liked or agreed with how the criminal investigation was handled, the evidence was found to be credible by the investigators and the court. Also, the applicant has failed to connect her allegations to a Code ground.

Incident 11 - August 6, 2015 – Supervised Visit with Eldest Daughter

Applicant’s Submission

51The applicant alleges that during a supervised visit with her eldest daughter, the daughter shoved her head and held it against a couch. The applicant maintains that the incident was witnessed by her youngest daughter who ran away from her older sister when this incident occurred. The applicant notes that the supervisor of the visit said nothing nor did she react.

52The applicant reported the incident to the OPP. The applicant maintains that the officer she spoke to said she would investigate and get back to her but she never did. The applicant’s claims were dismissed.

53The applicant maintains that two OPP officers believed that she had mental health issues.

The Respondent’s Submission

54The respondent maintains that the applicant did contact the OPP about an alleged incident that occurred with her eldest daughter during a supervised visit on August 5, 2015. The OPP officer contacted the municipal police services to enquire about the incident. The alleged incident had not been reported.

55The applicant appears to be asserting that this incident was treated as it was because she is a single parent with a disability. The respondent submits that the applicant called and reported an alleged incident. The OPP made appropriate inquiries and did not find any evidence of criminal wrongdoing. The applicant’s marital status, family status or disability had no bearing on how she was treated and the applicant has pled no facts to support such a connection.

Incident 12 - On October 6, 2015 – Offer of Joint Investigation

The Applicant’s Submission

56The applicant maintains that CAS asked if she was interested in an offer to have the police do a joint investigation to interrogate/investigate her statement, 5 months into the process. The applicant maintains that the objective of this offer was to continue to systemically harass her.

The Respondent’s Submission

57The respondent maintains that it is unclear what the applicant is alleging. The respondent submits that it appears to be a complaint about the fairness of the CAS and OPP investigations that ultimately led to the applicant being charged and convicted. The applicant has pled no facts to connect the manner in which she was treated by the respondent to the grounds she is claiming in her Application.

Incidents 13 and 14 - October 27 and 29, 2015, November 4, 2015 – Communicating with Daughter

The Applicant’s Submission

58The applicant states that for therapeutic and instinctively human reasons, the applicant expressed her thoughts to her eldest child on the back of an agenda she used to write in. The applicant felt that as a parent, she had a right to impart her cultural knowledge and religious affirmations of being truthful and honest. The applicant wrote to her daughter how much she was loved and was always cared for. She wrote about how important and strong their faith is and that she needs to remember her Christian values. At the applicant’s October 27, 2015 visit, the applicant alleges that she inadvertently brought the agenda, along with many other scrap booking notes, books and items.

59The applicant’s oldest daughter took the bag full of scrap booking items with her. The applicant alleges she was not aware that her daughter had taken the agenda home.

60On November 4, 2015, the applicant arrived early for her visit with her daughters. At the end of the visit, the applicant was hand-cuffed by two municipal police officers.

61Within an hour or so, while the applicant was held in the back of a municipal police cruiser, the OPP cruisers appeared. The OPP told the municipal police that the applicant had written a letter to her daughter. The applicant states that she had not written a letter to her daughter but had written down her thoughts in an agenda which her daughter took with the scrapbooking material. The OPP officer cuffed the applicant in public. The applicant felt she was treated like a dangerous criminal. She did not see her daughters for another two months. The applicant states that she was not told why she was being arrested and if it had anything to do with the charges.

62The applicant alleges that while she was in her cell at the OPP detachment she was again berated by the OPP officer and was called mentally ill and unstable.

63The applicant believes the CAS and OPP failed in their duties by placing her daughters with her former husband who had been arrested multiple times.

The Respondent’s Submission

64Following the applicant’s arrest for assault, she had been released on an Undertaking dated July 17, 2015 that included a condition that she abstain from communicating directly or indirectly with her daughters, except as arranged and supervised by the CAS. The respondent maintains that on November 4, 2015, the OPP was contacted by CAS staff about three notes the applicant had written and given to her oldest daughter during supervised visits that occurred between October 19 and 21, 2015. During their investigation, the officers found out that the applicant had also called her former husband, contrary to the conditions of the Undertaking. As a result of the investigation into the applicant’s conduct, she was arrested and charged with two counts of failing to comply with an Undertaking and one count of obstructing justice. The arrest was conducted by the municipal police force. The OPP took custody of the applicant from the municipal police force.

65The respondent maintains that the applicant was released on bail on November 5, 2015. The bail conditions included prohibitions about contacting her daughters or their father, either directly or indirectly.

66The respondent submits that the applicant was treated appropriately throughout this incident. The respondent maintains that there is a lack of connection between the alleged treatment and the Code grounds being claimed.

Incidents 15 and 16- February 12, 2016 – The Surety

The Applicant’s Submission

67The applicant alleges that the OPP made the decision to appoint her male boarder as her surety. She states that the surety became controlling, obsessive, and inappropriate towards her, resulting in him threatening to and attempting to sexually assault her.

68According to the applicant, after the first assault, the surety apologized. The applicant accepted his apology and said he needed to start looking for a new place to live. The applicant kept her distance and stayed away from her home for weeks.

69The applicant states that a second incident of attempted sexual assault by her surety occurred while they were in Quebec in February 2016.

70The applicant says that she was afraid to go to the OPP as she feared they would dismiss her claims of sexual and physical assault.

71The applicant maintains that her boarder withdrew as her surety and phoned the OPP to report where the applicant was staying. While she was trying to secure a new surety the OPP arrived at the home she was visiting and charged her with another offence of breach. The applicant feels that the OPP did not want to know any facts about the alleged attempted sexual assault.

72The applicant alleges that she was brought to prison in Ottawa and stripped, handled, processed and put into a segregated cell. The applicant states that she was put in isolation for suicide watch. She was in the cell for 5 days.

73The applicant alleges she was charged again without an interview or questions asked. It is her view that the original charges were never fully investigated.

74After her release from prison, a friend who was also her new surety was driving the applicant to a court hearing. They both saw an OPP car parked on the main street in the opposite direction. The car turned around, and followed them to a coffee shop. The car stopped and the OPP officer asked the applicant to report the attempted sexual assault from her first surety. After speaking to her lawyer, the applicant agreed to be interviewed about the alleged incidents.

75A few weeks later the applicant received a follow-up call from the OPP explaining that the perpetrator had been interviewed and there wasn't enough evidence to support charging him.

The Respondent’s Submission

76The respondent submits that on February 11, 2016, the applicant’s surety contacted the OPP to report that some of his tools were missing and he believed the applicant’s alleged boyfriend took them. The surety was a tenant of the applicant’s at that time. The surety further reported that on February 6, 2016, he went to Quebec with the applicant and her boyfriend. While there, an altercation occurred during which the applicant struck him with a frying pan.

77The surety said he left and hitchhiked back to Ontario. He moved out of the applicant’s residence and withdrew as the applicant’s surety. On February 13, 2016, the applicant’s former surety contacted the OPP to provide them with information about the applicant’s whereabouts. The former surety mentioned again that he had withdrawn as the applicant’s surety after he was assaulted by her. Inquiries revealed that there was an arrest warrant out for the applicant.

78The OPP attended at the location provided by the former surety. The applicant turned herself over into police custody. The respondent maintains that once it became clear that she was being taken to the detention centre, the applicant became argumentative and accused the officers of abusing her and charging her for no reason.

79Once at the detention centre, the applicant was advised to report the alleged incidents of sexual assault.

80On February 19, 2016, the OPP attended at the applicant’s residence about the missing tools. The applicant advised the officer that she had evicted the former surety and since he owed her money she told her boyfriend that he could take the tools in lieu of the money owed to her. On February 20, 2016, the OPP officer spoke with the applicant’s boyfriend who admitted to having the tools. He advised that he would return them. No further action was taken as the property was returned.

81On March 6, 2016, the applicant attended at the OPP detachment to provide a video statement about the alleged assaults by her former surety that occurred in Ontario.

82The respondent maintains that the former surety attended at the OPP detachment on March 23, 2016 to be interviewed. He denied ever assaulting the applicant. He advised that it was the applicant who had assaulted him in Quebec in February 2016. He said that was the reason for revoking himself as surety. The former surety also stated that the alleged incident at the applicant’s house had not occurred in November 2015, but in December 2015. He stated that the applicant was drinking heavily at the time, that she had a mental illness and was not taking her medication. He stated that during an argument, the applicant began to kick him and he grabbed her foot to block her from striking him further. He said that she lost her balance because of intoxication and fell to the floor.

83Based on the respondent’s inquiries into this issue, it was concluded that there were no grounds upon which to charge the applicant’s former surety for the events that occurred in Ontario. The applicant’s allegations were treated seriously, but were ultimately not found to be credible when balanced against the other information. The respondent submits that the applicant may not have liked the outcome but she has pled no facts to demonstrate that she was differentially treated on the basis of any ground under the Code.

Incident 17 - March 15, 2016

The Applicant’s Submission

84The applicant states that on March 15, 2016, at a Family Court mediation session, no regard was given to her family history, her disabilities, or her religious rights. She alleges that she was forced to be involved in court proceedings by the individual and systemic actions of the OPP.

The Respondent’s Submission

85The respondent submits that the allegations in this incident appear to relate to what occurred in a family court proceeding on March 15, 2016. These allegations do not relate to the respondent in this matter.

Incident 18 – March 22, 2016 – Criminal Court Proceeding

The Applicant’s Submission

86The applicant alleges that during her criminal trial, she was berated and painted as a vicious mother in front of a judge. She states that Crown Attorney attacked her human dignity and her disabilities by asking leading and aggressive questions.

87The applicant alleges that the OPP officers’ actions and comments at trial were false and discriminatory. The applicant states that the OPP officers willfully and knowingly provided a bad character reference in relation to her mothering and committed acts of perjury and obstruction of justice by lying to the court.

88The applicant states that on April 5, 2016, she was convicted, because the judge did not believe in her. She submits that the allegations and subsequent convictions remain unfounded. She maintains that there are several inaccuracies and inconsistencies between the family court documents, the CAS files, the OPP records, the family and criminal court proceedings and the witness testimonies.

The Respondent’s Submission

89The respondent submits that the allegations set out in this incident relate to how the applicant’s March 2016 assault trial, including the evidence given and the findings made, was conducted. These are not issues that are within the jurisdiction of the Tribunal

Analysis and Decision

Timeliness of Application

90The applicant maintains that she was aware of the one year period to apply to the Tribunal but she had been told by a human rights advisor to file her Application after the conclusion of her criminal proceeding. She filed her Application after the conclusion of the hearing on the merits but before her sentencing.

91The applicant explained that she made allegations that go back to 2010 because she believes that she has been the victim of a series of practices by the OPP. She maintains that the OPP made assumptions about her based on her disability, creed, family status and marital status starting in 2010, the first time they interacted with her and pressed charges without a proper investigation.

92The applicant explains that between 2010 and 2014, her marriage was starting to break down. She did not intend to file an application at the time in part because it would have been detrimental to the children. The applicant explains that she was extremely vulnerable and overwhelmed during that period and suffered from panic attacks. The applicant submits that she did not file the Application at the time because of her disability.

93Section 34 (1) and (2) of the Code states:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

94Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondents. In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.

95The Application was filed on June 21, 2016. The applicant notes in the Application that the last incident occurred on March 22, 2016, the date of the applicant’s criminal trial before the Superior Court of Justice. I accept that March 22, 2016 is the date of the last incident.

Series of Incidents

96The applicant argues that the alleged incidents, beginning in 2010 and ending in March 2016 all form part of a series of incidents that show that the OPP consistently dismissed her claims and versions of facts and failed to properly investigate her matters. She claims that this treatment was due to their assumptions of her based on her disability, creed and marital and family status.

97In Tesseris v. Pellark Dental Centre, 2014 HRTO 101 at para. 32 the Tribunal discussed the concept of a “series of incidents”:

However, the Tribunal has held that to form a series of incidents there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See Baisa v. Skills for Change, 2010 HRTO 1621. The Tribunal has also said that incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See Polihronakos v. Mississauga (City), 2010 HRTO 1433. Incidents separated by a gap in time of a year or more will generally not be considered a series. See Chintaman v. Toronto District School Board, 2009 HRTO 1225 and Savage v. Toronto Transit Commission, 2010 HRTO 1360. Allegations that have no reasonable prospect of success cannot form part of a series of incidents. See Chappell v. Securitas Canada Limited, 2012 HRTO 874.

Timeliness of Incidents 1 and 2

98All material facts related to incidents 1 and 2 occurred from November 20 to November 24, 2010, approximately 5 ½ years prior to the filing of the Application and well beyond the one year statutory delay for filing an Application.

99The next alleged incident of discrimination raised by the applicant is dated June 26, 2014 when the applicant called the OPP to report that her former husband was refusing to return her children. The bulk of the other alleged incidents occurred in 2015 and 2016.

100The Tribunal has consistently said that incidents separated by a gap in time of a year or more will generally not be considered a series. In this case, more than three years have elapsed between alleged incidents 1 and 2 and the next alleged incident in June 2014.

101I find that the alleged incidents 1 and 2 are untimely.

Timeliness of Incidents 3 to 16

102Incidents 3 to 10 occurred between June 2014 and June 12, 2015 and the Application as it relates to these incidents is untimely. However, I find that allegations 3 to 10 all refer to the applicant’s interaction with the OPP and her belief that the OPP discriminated against her based on her disability, creed and marital and family status. The applicant’s interactions with the OPP continued after June 12, 2015 and are described in the alleged incidents 11 to 16. Those incidents occurred between August 6, 2015 and February 15, 2016 and the Application as it relates to those incidents is timely. Incidents 3 to 10 are not discrete and separate from incidents 11 to 16 and there is no significant gap in time between the incidents. Consequently, I find that incidents 3 to 16 form part of a series of incidents.

Good Faith

103The issue I must consider is whether the delay to file the Application as it relates to incidents 1 and 2 was incurred in good faith. The Tribunal has held that applicants have a “fairly high onus” in providing explanations for delay. Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. In determining the issue of good faith, the Tribunal has considered factors such as the duration of the delay; whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

104I find that the applicant has not established that the delay in filing the allegations related to incidents 1 and 2 in the Application was incurred in good faith, pursuant to s. 34(2) of the Code.

105I understand that the applicant waited until the conclusion of her criminal trial before filing the Application and that she felt vulnerable or overwhelmed. However, these are not sufficient explanations to establish good faith in filing the Application related to incidents 1 and 2 late.

106The Tribunal has consistently held that the fact that a person is pursuing other avenues or waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

107The applicant also explained that she was overwhelmed and vulnerable during the period following the 2010 incidents and she suffered from panic attacks. She says that her disability prevented her from filing the Application as it relates to incidents 1 and 2 in a timely fashion. She did not provide medical documentation in support. The Tribunal has consistently ruled that it requires medical evidence that a medical condition was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example James v. York University and Human Rights Tribunal of Ontario, 2015 ONSC 2234 and Todd v. Rouge Valley Health System 2012 HRTO 2173. The applicant presented no evidence to show that she was debilitated to a point that she could not file an application in a timely manner.

108I find that the alleged incidents 1 and 2 in the Application are out of time and the applicant has pled no facts that would support a finding that the delay was incurred in good faith.

109The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579. Consequently, it is not necessary to determine whether the respondent has demonstrated substantial prejudice as a result of the delay.

110In the circumstances, I find that the allegations related to the November 20 to 24, 2010 incidents are outside of the Tribunal’s jurisdiction because they are untimely under s. 34 of the Code.

111I turn now to considering whether the allegations related to incidents 3 to 18 have no reasonable prospect of success.

No Reasonable Prospect of Success

112Rule 19A of the Tribunal’s Rules of Procedure reads as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure of witness statements.

113In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraphs 8-10, the Tribunal commented on the type of inquiry that is involved in a summary hearing so as to assess whether the Application should be dismissed, in whole or in part, on the basis of no reasonable prospect of success:

In some cases, the issue at a summary hearing may be whether, assuming all of 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 the 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.

Allegations of Discrimination Based on Creed, Marital Status and Family Status

114The applicant believes that the OPP’s alleged inactions and lack of investigation was based on preconceived notions of her character based on her creed and her family and marital status; she is a single mother. However, the applicant did not point to any evidence, or any evidence that may be reasonably available to her, that she was treated differently and adversely compared to others and that her creed, marital status and family status were factors in the way she was treated.

Allegations of Discrimination Based on Disability

115The respondent does not dispute that the applicant has a disability and that on certain occasions the OPP took into account the applicant’s disability in the way they acted. The respondent contends that the applicant failed to point to any evidence, or any evidence that may be reasonably available to her, that she was treated differently and adversely compared to others and that her disability was a factor in the way she was treated.

Incident 3 - June 26, 2014 – Alleged Violation of Custody Arrangement

116In June 2014, the applicant phoned the OPP to report her former spouse’s interference with the custody order. The applicant believes that the OPP chose not to get involved and neglected their duties by choosing not to enforce the custody order. However, the applicant’s children were returned to her without any further incident.

117The Tribunal has consistently stated that to be successful, an applicant has the onus of establishing that he or she experienced a real burden or disadvantage because of a Code ground. See for example Freitag v. Penetanguishene (Town), 2013 HRTO 554 at para. 8.

118The applicant failed to point to any evidence, or any evidence that may be reasonably available to her, that she experienced a real burden or disadvantage based on her disability or that she was treated adversely compared to others when she contacted the OPP to request assistance with the enforcement of her custody order.

119The allegation related to the alleged breach of custody agreement is dismissed.

Incident 4 - January 20, 2015 – Objects in Backyard

120On January 20, 2015, OPP officers visited the applicant’s house in response to her call about objects flying low, with bright lights peering into her bedroom window. The applicant stated that she was satisfied with the OPP officers’ explanation that what she and her daughter were seeing were most likely geographical drones and/or surveillance drones mapping out the land for real estate. Following an assessment of the situation, the OPP officer had some concern about the applicant’s mental health. Given the fact that there were young children involved and the CAS had an on-going involvement with the applicant and her family, the OPP notified the CAS so it could follow-up as deemed appropriate.

121I find that while the applicant’s mental health was a factor in how this incident was handled, the applicant pled no facts to support that the OPP actions were discriminatory or adversely affected her or that she was treated differently than others in those circumstances.

122The allegation about the investigation into the objects flying in the backyard is dismissed.

Incidents 5 to 10 and 18 – Apprehension of Children, Investigation, Charge and Criminal Trial

123The CAS apprehended the applicant’s children on May 28, 2015. This was very difficult for the applicant. She phoned the OPP to report that her children had been kidnapped and she wanted charges laid against the CAS. According to the applicant, the OPP officer spoke to her with contempt and told her that she could not press charges against CAS. The applicant believes that the OPP officers had flagged her as violent and aggressive because of her mental health.

124The responding officers could have charged the applicant with public mischief that night as she repeatedly called 911 about the same issue, before and after being warned to stop. The OPP officers exercised their discretion not to charge the applicant. I find that the OPP officers may have considered the applicant’s mental health in the way they dealt with the situation, but the applicant pled no facts to support a contention that she was adversely treated by the respondent as a result. On the contrary, the OPP used its discretion not to charge the applicant.

125Between June 3, 2015 and June 8, 2015, following the apprehension of the applicant’s daughters, the OPP pursued a criminal investigation into the allegations that she had assaulted her daughters. As a result of the investigation, the applicant was charged with three counts of assault. The applicant believes the OPP and CAS conspired to further traumatize, tear apart, degrade her and destroy her life and family and that due process was not followed.

126On April 5, 2016 the applicant was convicted of the three counts of assault following a full trial. On October 18, 2016 she was sentenced in relation to those offences. While the applicant may not have liked or agreed with how the criminal investigation was handled, the evidence was found to be credible by the investigators and the court. I find that the applicant failed to show that her disability was a factor in the way the OPP treated her during the criminal investigation.

127The applicant also believes that during her criminal trial on March 22, 2016, she was berated and painted as a vicious mother in front of a judge. In her view, the OPP officers’ actions and comments at trial were false and discriminatory. The applicant believes that the OPP officers willfully and knowingly provided a bad character reference in relation to her mothering and committed acts of perjury and obstruction of justice by lying to the court.

128A number of decisions have found that the exercise of adjudicative functions by courts and tribunals, particularly the “content, reasons and result” of adjudicative decisions, do not fall within the definition of “service” in the Code, and are therefore not within the Tribunal’s jurisdiction. See for example Fergo v. Human Rights Tribunal of Ontario, 2011 HRTO 1436 at para. 17, Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99; Lindberg v. Workplace Safety and Insurance Board, 2009 HRTO 250; Christianson v. Social Benefits Tribunal, 2009 HRTO 886; Christianson v. (Ontario) Information and Privacy Commissioner, 2009 HRTO 203; Jacob v. Workplace Safety and Insurance Board, 2009 HRTO 1483; Dann v. Wallace, 2009 HRTO 392; Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595.

129I find that the OPP was not providing a service to the applicant when its officers participated as witnesses in her criminal trial.

130The allegations related to incidents 5 to 10 and 18 are dismissed.

Incident 11 - August 6, 2015 – Supervised Visit with Eldest Daughter

131The applicant describes that her eldest daughter attacked her during a supervised visit and as a result she phoned the OPP. She contends that the officer said she would investigate and get back to her but never did. Although the applicant maintains that the two OPP officers knew she had mental health issues, the applicant fails to identify any evidence, or any evidence that may be reasonably available to her, that her disability was a factor in the way she was treated by the officers that day.

132The allegation related to the investigation of the alleged attack of the applicant by her daughter is dismissed.

Incident 12 - On October 6, 2015 – Offer of Joint Investigation

133The allegation that on October 6, 2015 the CAS asked the applicant whether she was interested in an offer to have the police conduct a joint investigation is unclear and does not appear to involve the OPP. The allegation is dismissed.

Incidents 13 and 14 - October 27 and 29, 2015, November 4, 2015 – Communicating with Daughter

134In November 2015, the applicant was arrested by a municipal police force. The OPP took her from the municipal police car, cuffed her and incarcerated her in the OPP detachment. The applicant described having been treated like a dangerous criminal. The applicant was charged with two counts of failing to comply with an Undertaking and one count of obstructing justice. The applicant pointed to no evidence that her mental health was a factor in the way she was treated that day. Consequently, the allegation is dismissed.

Incidents 15 and 16- February 12, 2016 – The Surety

135The applicant believes that the OPP appointed her boarder as her surety but it did not. She contends that her surety became controlling, obsessive, and inappropriate towards her, resulting in him threatening to and attempting to sexually assault her twice, the second time in February 2016.

136While she was trying to secure a new surety, the OPP arrived at the home she was visiting and, as there was a warrant for her arrest, they charged her with another offence. The applicant was very upset about the arrest. She states that the OPP was knowingly triggering her disability by its continued harsh cruel and unusual treatment of never hearing her out. She believes she was treated harshly, with cruel and unusual punishment, and her life and liberty were taken away.

137The applicant feels that the OPP did not want to know any facts about the alleged attempted sexual assault and she was brought to prison and stripped, handled, processed and put into a segregated cell.

138A few weeks later the applicant received a call from the OPP explaining that there wasn't enough evidence to support charging the former surety. The applicant feels that the OPP never properly investigated the allegations of sexual assault and came to the conclusion that she had not been assaulted by her surety.

139The applicant may not have liked the outcome of the investigation or the fact that she was arrested. However, she points to no evidence to demonstrate that she was adversely treated during the investigation about the sexual assault or her arrest and that her mental health was a factor in the way she was treated.

140The allegations related to the alleged sexual assault and her treatment when arrested are dismissed.

Incident 17 - March 15, 2016 - Family Court Mediation

141Incident 17 refers to a Family Court mediation session in which the applicant was allegedly forced to be involved because of the individual and systemic actions of the OPP. This allegation does not involve the OPP, as the OPP was not involved in the Family Court mediation.

142The allegation about the Family Court Mediation is dismissed.

Conclusion

143There is no evidence in this instance that the respondent engaged in unfair treatment of the applicant related to her disability creed, family status and marital status. Although it is conceivable that individuals making decisions adverse in interest to the applicant may engage in discriminatory conduct or practices, the applicant has not pointed to evidence in that regard. Her unhappiness with the outcome or the process does not rise to the level of a Code violation.

Order

144For these reasons, the Application is dismissed.

Dated at Toronto, this 27th day of September, 2017.

“Signed by”

Josée Bouchard Vice-chair