HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Rosalyn Forrester
Complainant
-and-
Regional Municipality of Peel – Police Service Board
Respondent
INTERIM DECISION
Adjudicator: Mary Ross Hendriks
Human Rights Tribunal of Ontario
400 University Avenue, 7^th^ Floor
Toronto ON M7A 1T7
Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946
TTY (416) 314-2379 / 1-800-424-1168
E-mail hrto.registrar@jus.gov.on.ca
Website www.hrto.ca
INTRODUCTION
1The Complainant is a pre-operative female transsexual, who alleges that the Respondent police force, the Peel Police Services Board, discriminated against her with respect to services because of her sex in a number of ways, contrary to section 1 of the Ontario Human Rights Code, R.S.O. 1990, C.H. 19 (the “Code”). In particular, the Complainant contends that the Respondent’s policy concerning the “split” strip-searching of transsexuals is discriminatory, alleging that it violates section 1 of the Code.
2The Respondent denies any wrongdoing, pleads that its detentions of the Complainant were valid and legal, and inter alia, asserts that its current strip-search procedure provides a balance of safety versus privacy rights.
3The hearing on the merits is scheduled for February 14-16, 24 and April 4-8, 2005.
4The written motion before the Tribunal, filed on December 17, 2004, which is the subject-matter of this Interim Decision, is brought by the Police Association of Ontario (“PAO”), the Peel Regional Police Association (“PRPA”) and the Ontario Provincial Police Association Inc. (“OPPA”), (collectively the “Applicants”). Their motion is supported by the Respondent, and opposed by the Ontario Human Rights Commission (the “Commission”).
MOTION
5The Applicants, together through their combined counsel, seek leave to intervene as a friend of the Tribunal, pursuant to Rule 17 of the Tribunal’s Rules of Practice.
ISSUES
6The Tribunal has considered the following issues:
(1) Do the Applicants have a special contribution to make to the central issues to this hearing?
(2) Do the Applicants have a different perspective, meaning that they have a unique contribution to make and will raise issues not raised by someone else?
(3) Do the Applicants have a practical perspective or feel the impact of this case, as a matter of public policy, beyond the realm of private rights?
(4) Does the potential contribution of the Applicants sufficiently counterbalance the increase in the magnitude, timing, complexity and costs of the matter that will arise from allowing their participation? and
(5) If the motion is granted, should any terms be imposed?
DECISION
7The motion is granted on the terms set out in the Order.
WRITTEN ARGUMENTS
Leave Sought:
8The Applicants have not asked to be added as a party to the proceeding. They have each filed affidavits in support of their request to make submissions on two issues through their combined counsel: (1) the potential occupational health and safety risks posed to Ontario police officers if the Commission’s suggested strip-searching policy is ordered; and (2) the potential for gender-based discrimination some members could face if a policy, such as that requested by the Commission, were ordered. They have also filed copies of decisions where they have been granted intervenor status in the past.
Respondent’s Position:
9The Respondent’s submission of January 14, 2005 supports their request for leave, on the basis that any change to existing police search procedures will have an impact on all police forces across Ontario, which are represented by the Applicants.
Commission’s Position:
10The Commission opposes this request for intervenor status, on three grounds: (1) the Applicants lack a record of involvement in the issue in this case; (2) they do not bring a perspective that is different from the Respondent; and (3) the Respondent has sole responsibility for the strip-searching policies in effect. The Commission contends that whether or not the current policy of a “split search” violates the Code is something for which the Respondent alone must answer, since it was the Respondent’s policy vis-à-vis the Complainant that is under scrutiny.
Response of Applicants:
11In response to the Commission’s written submissions, the Applicants replied that they do have experience intervening in cases that involve strip-searches, and cite the involvement of the PAO and OPPA in Canadian Civil Liberties Assn. v. Ontario 2002 CanLII 45090 (ON CA), [2002] 61 O.R.(3d) 649. They add that the Police Associations are the sole collective bargaining agents for their members, and have a contractual and statutory obligation to advocate on behalf of their members in matters of workplace health and safety. Thus, the Applicants maintain that they have a different perspective from the Respondent and ought to be heard.
ANALYSIS
12The Tribunal agrees with Vice-Chair McKellar’s observation in Odell v. Toronto Transit Comm. (No. 2) (2001), 2001 CanLII 26223 (ON HRT), 40 C.H.R.R. D/254 (Ont. Bd. Inq.), at para. 18-19, that there is no provision in the Code, “that contemplates the participation in a hearing of non-party interveners.”
13Thus, the Tribunal refers to the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”), which is also silent on the specific issue of whether non-parties, who fall outside of section 5, can be granted intervenor status.
14The SPPA does provide, under section 2, for the liberal construction of any rule made by a tribunal, in order to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.
15The Tribunal’s Rules of Practice, dated July 2004, provide a procedural mechanism to seek intervenor status under Rule 17, akin to Rule 13.02 – Leave to Intervene as a Friend of the Court, set out in Ontario’s Rules of Civil Procedure, as follows:
- As soon as possible after they become aware of a proceeding, a person who is not a party, but who wishes to intervene, shall bring a motion before the panel. In addition to the items set out in Rule 57, the Notice of Motion should set out their interest in the matter and the status and degree of intervention sought.
16The Tribunal has reviewed the case law and commentary on the issue, and summarizes the key criteria used to assess such requests below:
(1) do the Applicants have a special contribution to make to the central issues at hand, see: Authorson (Litigation Guardian of) v. Canada (Attorney General) (2001), 2001 CanLII 4382 (ON CA), 147 O.A.C. 355 (C.A.), at para.18;
(2) do the Applicants have a different perspective, meaning that they have issues to raise that will not be said by someone else, see: McIntyre Estate v. Ontario (Attorney General) (2001), 26 C.P.C. (5^th^) 312 (C.A.), at para. 12, and Odell, supra, at para. 43; and
(3) do the Applicants have a practical perspective or feel the impact of the case, as a “matter of public interest,” beyond the realm of private rights, see: P. Muldoon and D. Scriven, “Intervention as a Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure” (1985) 6 Advocates Q. 448 at 467;
(4) is the Applicants’ potential contribution sufficient to counterbalance the disruption caused by the increase in the “magnitude, timing, complexity and costs of the original action,” see: M. v. H.(1994), 1994 CanLII 7324 (ON CTGD), 20 O.R. (3d) 70 (Gen. Div.) at p. 77 ; and
(5) if the motion is granted, what terms ought to be imposed on the intervention to ensure that the goals are met of useful contribution without undue delay or prejudice, see: Halpern v. Toronto (City) Clerk (2000), 2000 CanLII 29029 (ON SCDC), 51 O.R. (3d) 742 (Div.Ct.), at para. 21, (2003) 2003 CanLII 26403 (ON CA), 65 O.R. (3d) 161 (C.A.).
17After carefully considering all the materials filed, the Tribunal finds that the Applicants do have a special contribution to make, since they are the sole collective bargaining agents for their members, and the Tribunal believes that the implications arising from this case are likely to impact their members.
18In terms of whether the Applicants have a different perspective to add to this case, meaning that they will make a unique contribution, the Tribunal has determined that it is appropriate to allow them to make written submissions through their common counsel on the alleged health and safety risks and on the alleged potential for gender-based discrimination for their members, as a friend of the Tribunal, under the terms set out below.
19Moreover, the case is a matter of public interest, and this public policy consideration also favours allowing the motion to be granted, so that their additional perspective may be heard from the outset, see: Peel (Regional Municipality) v. Great Atlantic and Pacific Canada Limited (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p.167; followed in Halpern v. Canada (Attorney General) [2003] O.J. No. 720 (C.A. in Chambers), at para.8-9; and followed in Halpern v. Canada (Attorney General) [2003] O.J. No. 730 (C.A. in Chambers), at para.6.
20To be clear, the Tribunal is only interested in these perspectives, rather than in the Applicants’ perspective as lobbyists. The Tribunal follows the reasoning of Lang, J. in Halpern v. Toronto (City) Clerk (2000), 2000 CanLII 29029 (ON SCDC), 51 O.R. (3d) 742 (Div. Ct.), at para. 24, (2003) 2003 CanLII 26403 (ON CA), 65 O.R. (3d) 161 (C.A.), where it was held that, “experience as an interest group and lobbyist is insufficient to meet the test.”
21Whether or not intervenor status is granted to a non-party before the Tribunal is discretionary. One of the considerations to be weighed is whether the contribution that might be made by the Applicants is sufficient to counterbalance the disruption caused by the increase in the magnitude, timing, complexity and costs of the original action, as per M. v. H, supra, at p.77.
22On the evidence before it, the Tribunal believes that the Applicants’ broad-based input may be useful albeit limited in terms of its depth. Thus, there are restrictions on their participation as a friend of the Tribunal set out as terms to the Order herein.
ORDER
23Accordingly, the Order is hereby made permitting the Applicants to make a single, written submission as a friend of the Tribunal, pursuant to Rule 17 of the Tribunal’s Rules of Practice, on the following terms:
(1) They are non-party intervenors to this matter, and as such, they are not permitted to lead any evidence in chief or to cross-examine any parties;
(2) Their written submissions must be limited to making arguments on the record as produced by the parties, and they will not be permitted to introduce further material;
(3) Their written submissions must focus on their perspective as the bargaining agent for their members, in terms of the alleged occupational health and safety risks and the alleged potential for gender-based discrimination; and
(4) Their written submissions must not exceed thirty pages in length, must be served on all parties prior to the end of the oral hearing on the merits, and all parties shall have a right to reply to them, in writing.
Dated at Toronto, this 27^th^ day of January, 2005.
“Mary Ross Hendriks”
Mary Ross Hendriks
(Acting) Chair