K.F. v. Dufferin-Peel Catholic District School Board, 2008 HRTO 179

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

K. F.

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Dufferin-Peel Catholic District School Board, Herman Viloria, John Lezon, Regional Municipality of Peel Police Services Board and Jeff Duffield

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: October 22, 2008

Citation: 2008 HRTO 179

Indexed as: K.F. v. Dufferin-Peel Catholic District School Board

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto, ON M7A 2A3 Phone (416) 314-8419 / Fax (416) 314-8743 / Toll free 1-866-598-0322 TTY (416) 314-2379 / (toll free) 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

written submissions by

Ontario Human Rights Commission ) Monmi Goswami, Counsel

K. F. by his litigation guardian F. W.-K., ) Selwyn Pieters, Counsel Complainant )

Dufferin-Peel Catholic District School Board, ) Herman Viloria and John Lezon, ) Nadya Tymochenko, Respondents ) Counsel

Peel Regional Police Services Board ) Lauri Wall, Counsel and Jeff Duffield )

1The Initial Conference Call in this matter was held on January 21, 2008, at which time a temporary publication ban was ordered. The parties agreed to cooperate in making an application to a Youth Court Judge to obtain an order for the release of certain records.

2On October 6, 2008, the Tribunal was provided with a copy of Justice Blacklock’s order requiring that the respondents Regional Municipality of Peel Police Services Board (the “Board”) and Jeff Duffield, the Chief of Police for the Peel Region (the “Chief of Police”) and an individual identified only as “T.V.” provide to the complainant and his counsel copies of all information and records under their care or control in relation to the complainant’s investigation and arrest arising out of the incident on September 22, 2005, with any identifying information for young persons as defined under the Youth Criminal Justice Act s.c. 2002, c.1 replaced by pseudonyms or initials and with informant information edited.

3Justice Blacklock further ordered the Board, Duffield, the Chief of Police and T.V. to provide access to these records to all persons of a class who are required to have access to ensure an appropriate and fair resolution of the complainant’s human rights complaints currently before this Tribunal. Justice Blacklock’s order states that this Tribunal shall determine the members of this class.

4Following receipt of Justice Blacklock’s order, the Tribunal requested submissions from the parties as to whom should be the members of this class.

5Upon consideration of the submissions filed by all parties, the Tribunal determines the members of this class to include: the Tribunal and its Vice-Chairs, Members and staff; all parties to this proceeding; their counsel and support staff; and any witnesses or potential witnesses, experts or advisors to the parties who may require access to these records in order to ensure an appropriate and fair resolution of the complainant’s human rights complaints currently before this Tribunal.

6As requested by the complainant, I confirm that the members of the class are entitled to use any of the disclosed material in preparing witnesses and in examining and cross-examining witnesses, as the preparation and examination of witnesses is necessary to ensure an appropriate and fair resolution of the complaints. The complainant also has requested that the Attorneys General of Ontario and Canada be included as members of the class, but has provided no basis to support this request. This request is denied.

7Both the Commission and the Board have requested that the class be restricted to the Tribunal, the parties and their counsel, and that any further disclosure, even to witnesses, potential witnesses, experts or advisors be only upon justification to the Tribunal, in the Commission’s submission, or upon consent of the parties and the Tribunal, in the Board’s submission. I see no reason to make such a restrictive order. No such order is sought by the complainant, who presumably has the greatest interest in safeguarding his own privacy. In my view, such an order would unduly interfere with the appropriate and fair resolution of the complaints, by causing unnecessary and entirely avoidable further delay. This matter already has been unduly delayed by almost a year since it was referred to the Tribunal, and it has been over three years since the underlying events at issue.

8The Tribunal further requested submissions as to whether an order for full production and disclosure should be made against the Board in order to facilitate the mediation process. While the Board takes the position that such an order would be redundant in light of Justice Blacklock’s order, I note that this order only provides for disclosure to the complainant and his counsel and only relates to the disclosure of certain documents as itemized in the order, which may not encompass all documents that are arguably relevant to the matters at issue in this proceeding. Accordingly, I hereby order the Board to make full production and disclosure of all arguably relevant documents to all other parties no later than October 29, 2008.

9The Tribunal also requested submissions as to whether an order for disclosure and production needed to be made as against the Chief of Police, in light of the difficulties this Tribunal has encountered in recent cases when such orders have been made only as against a Police Services Board: see King v. Toronto Police Services Board 2008 HRTO 33, McKay v. Toronto Police Services Board 2008 HRTO 98 and Kampe v. Toronto Police Services Board 2008 HRTO 128. While the Board takes the position that the Chief of Police is already subject to Justice Blacklock’s order, the Chief of Police is not a party to this proceeding and Justice Blacklock’s order does not extend to require disclosure to parties other than the complainant. Accordingly, as this Tribunal has the authority to make an order for disclosure and production against a non-party pursuant to Rule 14(h) of its Rules of Practice and out of an abundance of caution, this Tribunal shall extend its order for full production and disclosure to the Chief of Police.

10Finally, the Tribunal requested submissions on whether an order should be made requiring the Board to provide a response to the complaint in order to facilitate the mediation process. The Board has indicated that it is prepared to set out its position in response to the complainant’s allegations in the form of a mediation brief, and has requested that the Tribunal establish a schedule for the parties to file such briefs. The Tribunal will do so in its order below.

ORDER

11The Tribunal makes the following Order:

a. The Tribunal determines that the members of the class who are entitled to disclosure and production pursuant to Justice Blacklock’s order dated October 6, 2008 are: the Tribunal itself and its Vice-Chairs, members and staff; all parties to this proceeding; their counsel and support staff; and any witnesses or potential witnesses, experts or advisors to the parties who may require access to these records in order to ensure an appropriate and fair resolution of the complainant’s human rights complaints currently before this Tribunal;

b. the Board and the Chief of Police shall make full production and disclosure of all arguably relevant documents to all other parties by no later than October 29, 2008;

c. the parties shall serve and file mediation briefs in advance of the mediation scheduled for November 12, 2008 in accordance with the following schedule:

1. The Commission and the complainant shall serve and file their mediation briefs by November 3, 2008;

2. The respondents shall serve and file their mediation briefs by November 7, 2008, which in the case of the respondent Board shall include a detailed response to the complainant’s allegations.