Vasuki Thillainadarajah v. York Regional Police Services Board, 2017 HRTO 1472

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vasuki Thillainadarajah Applicant

-and-

York Regional Police Services Board, Durham Regional Police Services Board, Durham Children’s Aid Society and Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services (Family Responsibility Office) Respondents

DECISION

Adjudicator: Mark Hart Date: November 7, 2017 Citation: 2017 HRTO 1472 Indexed as: Thillainadarajah v. York Regional Police Services Board

APPEARANCES

Vasuki Thillainadarajah, Applicant Self-represented

York Regional Police Services Board, Respondent Anthony Deiana, Counsel

Durham Regional Police Services Board, Respondent Angela Khoury and Ian Johnstone, Counsel

Durham Children’s Aid Society, Respondent Helen Murphy, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services (Family Responsibility Office), Respondent Kristen Kizoff, Counsel

1This is an Application filed on October 20, 2016, alleging discrimination with respect to services because of race, colour, ancestry, place of origin and ethnic origin (collectively “race”), sex, and family status, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”) dated February 2, 2017, this matter was referred for a preliminary hearing to determine whether all or any part of the Application should be dismissed for delay and/or as having no reasonable prospect of success.

3The preliminary hearing in this matter was held before me on August 3, 2017 by teleconference, at which time I heard oral submissions from the parties on the issues before me for determination. I also have reviewed and considered all materials filed by the parties for the purpose of the preliminary hearing, as identified by me at the outset of the preliminary hearing.

4I will first consider the alleged incidents of discrimination against the various respondents that occurred within one year prior to the filing of the Application, and determine whether any of these allegations have a reasonable prospect of success. I will then proceed to consider the delay issue.

Allegations re incidents on or after October 20, 2015

5Having reviewed the material and heard the parties’ submissions, there are only three events that are raised by the applicant as alleged incidents of discrimination that occurred within the one-year period prior to the filing of the Application on October 20, 2016. I will address each of these in turn.

6The first alleged timely incidents relate to the respondent Durham Regional Police Services Board (“DRPSB”). The applicant states that on June 11, 2016, she contacted the Durham Regional Police Service (“DRPS”) provide assistance in getting her ex-spouse to return their child after his access period had ended. She states that she was advised that unless police involvement is specifically stated in the access order, the DRPS was unable to assist her.

7The applicant states that on July 18, 2016, her ex-spouse contacted the DRPS to allege that the applicant was preventing him from exercising his access rights in relation to their child. There was an incident between the applicant and her ex-spouse that day at their child’s soccer game, with which the DRPS was not involved. The applicant states that when she returned home, she had received a call from a DRPS officer asking if she would be willing to provide her ex-spouse with access to their child. The applicant states that she advised the DRPS officer that this was not her ex-spouse’s week for access and that such issues were to be dealt with through their parenting coordinator and not the police. She states that she also asked why the police were getting involved, when she had been told a couple of months earlier that the police would not assist her in getting her child back from her ex-spouse after a weekend visit. The applicant states that she is not aware of any follow-up or cautions that were issued by the DRPS on this occasion.

8On July 24, 2016, a further dispute arose between the applicant and her ex-spouse regarding the exchange of their child, and the ex-spouse threatened to call the police. The applicant then initiated contact with the DRPS to advise them of the situation. She states that she re-visited her conversation from the previous week, when she had stressed that parenting issues were to be handled through the parenting coordinator and not by contacting the police. The applicant states that she is unaware of any follow-up or cautions issued by the DRPS on this occasion.

9In essence, we have a situation where the applicant and her ex-spouse were involved in acrimonious dealings around access issues. On June 11, 2016, when the applicant called the DRPS, she was told that they could not assist her. On July 18, 2016, when the ex-spouse contacted the DRPS, the DRPS called the applicant. On July 24, 2016, it was the applicant herself who initiated contact with the DRPS following a threat by her ex-spouse to involve the police. In both instances from July 2016, on the basis of her own material, the applicant explained to the DRPS that parenting issues were to be dealt with through the parenting coordinator, not by contacting the police. No action was taken by the DRPS on either occasion that was adverse to the applicant.

10In my view, there is no reasonable prospect that the applicant can establish that she experienced any adverse treatment from the DRPS arising out of the two interactions in July 2016, which is required in order to prove discrimination in violation of the Code.

11Further, the applicant provided no basis to support her allegation that any of these interactions were linked or connected to her race, sex or family status. When asked at the preliminary hearing what evidence she had or was reasonably available to her to support a link or connection to any of these grounds, the applicant merely pointed to her name as evidence that the DRPS would have been aware of her race and sex. That is not a sufficient basis to establish a link or connection for the purpose of assessing reasonable prospect of success. As a result, to the extent there was any difference in the DRPS not becoming involved on June 11, 2016, when the applicant called and making a call to her on July 18, 2016, when her ex-spouse called, the applicant has not linked or connected any such differential treatment to her race, sex or family status. Further, on the face of the applicant’s own materials, she is aware that the police will do a “wellness check” on a child within the police service’s territorial jurisdiction by calling the parent with whom the child is staying. On June 11, 2016, the child was with the ex-spouse outside the DRPS’ territorial jurisdiction, while on July 18, 2016 the child was with the applicant within the DRPS’ territorial jurisdiction.

12Accordingly, I find that these allegations against the respondent DRPSB have no reasonable prospect of success.

13The second alleged incident within the one year period relates to the respondent Family Responsibility Office (“FRO”). The applicant’s allegation essentially is that the FRO has taken insufficient or ineffective steps to enforce the child support payments that were required to be made by her ex-spouse. The applicant states that her ex-spouse has been behind in his child support payments since June 2014. She states that when she called the FRO about this, she was told that the FRO would not take more aggressive action until her ex-spouse was three months behind in his support payments or owed more than $3,000. The applicant alleges that this state of affairs has continued up to the time of the filing of her Application.

14The applicant’s complaint is about the FRO’s policy regarding the point at which it will take more aggressive action to enforce payment of overdue support. While I appreciate that this may be frustrating for the applicant and may cause a certain degree of financial hardship, it does not constitute discrimination in violation of the Code. There is nothing before me to indicate that FRO’s policy in relation to enforcement was applied differently to anyone else in a manner that is linked or connected to the applicant’s race, sex or family status. As a result, I find that this allegation has no reasonable prospect of success.

15The third alleged incident relates to the Durham Children’s Aid Society (“DCAS”). This incident was not raised by the applicant in the Application, and indeed was unknown to her until the DCAS filed its submissions for the preliminary hearing. In its submissions, the DCAS disclosed that on April 4, 2016, it received an anonymous report expressing concern about the level of conflict between the applicant and her ex-spouse. The DCAS states that despite this concern, the caller identified both the applicant and her ex-spouse as being loving in their behaviour towards their child. This report was not investigated by the DCAS on the basis that there were no grounds for suspicion that the conflict between the parents was resulting in maltreatment of the child.

16Once again, even if this incident had been known to the applicant and set out in her Application, there is no basis from the incident to support any violation of the Code by the DCAS. As no action was taken by the DCAS, the applicant did not experience any adverse treatment. In addition, there is no link or connection between the actions of the DCAS in relation to this incident and any ground of discrimination relied upon by the applicant in her Application. As a result, I find that this allegation also has no reasonable prospect of success.

Delay

17Section 34 of the Code states, in its relevant part:

34.(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 incidents to which the application relates; or

(b) if there was 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.

18Where an applicant takes the position that her application alleges a “series of incidents” within the meaning of s. 34(1)(b) of the Code, the last incident in the series must have taken place within the one year period prior to the filing of the Application. This Tribunal has held that an alleged incident that is dismissed as having no reasonable prospect of success is not capable of constituting the “last incident” within this one year period: see Chappell v. Securitas Canada Limited, 2012 HRTO 874; Garland v. Canusa-CPS, 2012 HRTO 1309; Reiner v. Sarnia (City), 2014 HRTO 498; Mozafarian v. Saint Elizabeth Health Care, 2016 HRTO 784.

19In the instant case, as I have found that all of the alleged incidents within the one-year period raised by the applicant do not have a reasonable prospect of success, the applicant is unable to establish that the prior allegations form part of any “series of incidents” within the meaning of s. 34(1)(b) that extends to and includes a timely incident.

20Accordingly, I therefore need to consider whether the applicant’s delay in raising the untimely allegations was “incurred in good faith” as required by s. 34(2) of the Code.

21The onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

22The last allegation raised against the respondent York Regional Police Services Board (“YRPSB”) dates back to 2007, some 9 years before the Application was filed. The last allegation relating to the DRPSB prior to the June and July 2016 incidents addressed above dates back to November 2014, almost two years before the Application was filed. The last allegation against the DCAS prior to the April 2016 incident addressed above dates back to April 2014, some two and a half years before the Application was filed.

23At the preliminary hearing, I requested submissions from the applicant regarding her explanation for the delay in raising the untimely allegations. She stated that she moved to Oshawa in 2007 and was overwhelmed as a single mother dealing with a criminal charge and a child custody matter. She states that she lost her job in January 2009, and was under an overwhelming amount of stress and pressure which delayed her in raising the YRPSB incidents. She states that, after that, she believed that her ex-spouse was behaving during the period from 2009 to 2011. Then in 2012, the applicant states that she met her current husband, and this new relationship provided an avenue for her ex-spouse to resume his attack on her.

24While I appreciate that the applicant has gone through and continues to go through an acrimonious relationship with her ex-spouse, the applicant’s submission does not provide a reasonable explanation for her failure to raise the untimely allegations at an earlier point in time. With regard to the YRPSB, it appears that the applicant made a conscious decision not to pursue these allegations on the basis of the good behaviour of her ex-spouse during the period from 2009 to 2011. With regard to her untimely allegations as against the DRPSB and the DCAS, the applicant has provided no explanation for her failure to file her Application within the one-year period. The acrimony with her ex-spouse had re-surfaced by 2012 and apparently has continued. The applicant pointed to nothing about her personal circumstances that prevented her from filing an application as against the DRPSB by November 2015 or as against the DCAS by April 2015, or to explain why she was not able to do so then but was able to file her Application in October 2016.

25As a consequence, I am not satisfied that the applicant has provided a reasonable explanation for her delay in raising the untimely allegations which is sufficient to support that this delay was incurred in good faith within the meaning of s. 34(2) of the Code. Given this finding, it is not necessary for me to address the issue of prejudice to the respondents.

26On that basis, the remaining allegations raised in the Application are dismissed for delay.

ORDER

27For all of the foregoing reasons, the Application is dismissed for delay and/or as having no reasonable prospect of success.