King v. Toronto Police Services Board, 2008 HRTO 328

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy King

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: December 1, 2008

Citation: 2008 HRTO 328

Indexed as: King v. Toronto Police Services Board

1This interim decision addresses a request for an order during proceedings that was filed by the respondents on October 7, 2008 seeking to strike out certain paragraphs of the hearing brief filed by the Commission.

2On October 9, 2008, the Tribunal wrote to the parties to advise that any further submissions in support of the respondent’s request, including any evidence and case law, were to be served on the other parties and filed with the Tribunal by October 16, 2008. The Tribunal specifically directed the respondent to address its recent decisions that have held that, except in the rarest of circumstances, preliminary and procedural matters should not be raised prior to a party filing its hearing brief and making disclosure: Garrelhas v. ICE Consultants Inc. (No. 1), 2005 HRTO 51; Persaud v. Toronto District School Board, 2007 HRTO 39. The parties were advised that further direction would be provided by the Tribunal following receipt of these submissions.

3The respondent filed its submissions in support of its request, and also filed its hearing brief “in the interests of simplifying the process. .. [and] reserving the right to amend [its] Brief subject to the results of [its] Request for An Order”. As the respondent had now filed its hearing brief, the Tribunal proceeded to set dates both for the filing of any reply to the respondent’s hearing brief and for the filing of submissions in response to the respondent’s request.

4In its submissions in reply, the respondent has now sought to expand the scope of its request to include striking in its entirety the reply hearing brief filed by the Commission. That request will not be addressed at this time, as the Commission and the complainant need first to be afforded an opportunity to respond to the request. Further, this decision contemplates that the Commission will have an opportunity to file an amended reply in accordance with the decision and order herein. If there continue to be issues with the Commission’s amended reply, the respondent may raise them with the Tribunal in accordance with the provisions of Rule 77 of the Tribunal’s Rules of Practice effective January 31, 2008 (the “Rules”).

5A hearing brief is not limited to setting out only those facts that support an alleged infringement of rights. Rather, as stated in Rule 57, the Commission is required to set out “a statement of all facts upon which the Commission intends to rely”. The touchstone for whether a fact is properly included in a party’s hearing brief is whether the fact alleged is potentially relevant to the matters at issue at the hearing.

6I have applied this consideration to each of the disputed paragraphs.

Request to strike the introductory paragraphs

7The respondent objects to the introductory paragraphs in the Commission’s hearing brief on the basis that they contain arguments and submissions, and further contain specific statements to which the respondent is unable to respond.

8The introductory paragraphs in the Commission’s hearing brief are not numbered, and so I will address each impugned paragraph in the order in which it appears in the brief:

1. The first paragraph merely describes what is set out in the hearing brief. This paragraph is relevant and will not be struck. .

2. The second paragraph makes reference to a request for further disclosure that is being made by the Commission and a reference to the filing of “additional” material following disclosure. This paragraph is not a relevant fact being relied upon and will be struck. The request to file additional materials if further disclosure is ordered is premature. .

3. The third paragraph, under the heading “Summary of the Commission’s Position”, sets out the Commission’s position regarding the manner in which the complainant’s rights are alleged to have been infringed and the basis upon which the Commission will seek to establish this infringement at the hearing. While some elements of this paragraph stray into argument and submissions, they are basically relevant and will not be struck. .

4. The fourth paragraph reads as follows:

Our challenge is even more acute in view of the difficulties and the delay in obtaining the disclosure and production of critical evidence by the respondent necessary for Mr. King to establish a prima facie case of discrimination. Consequently, it is important to set out the background to the Commission’s referral to the Tribunal of Mr. King’s complaint, as well as the context of tensions between the Toronto police and the Lesbian, Gay, Bisexual and Transgender community (the LGBT community) when Mr. King was stopped, searched and arrested that fateful day of July 25, 2004.

This paragraph does not serve the purpose of setting out the facts upon which the Commission intends to rely at the hearing and accordingly is struck.

5. The fifth paragraph, under the heading “Background to Referral”, simply states the facts relating to the filing of the complaint by the complainant. This paragraph will not be struck.

6. The sixth paragraph refers to the Commission’s referral of the complaint pursuant to s. 33(6) of the Code, and certain requests for disclosure made during the Commission’s process. This paragraph is not relevant to the matters at issue at the hearing in this matter and accordingly is struck.

7. The seventh paragraph makes reference to judicial review proceedings commenced by certain police officers in response to a prior decision of this Tribunal. This paragraph too is not relevant to the matters at issue at the hearing in this matter and is struck.

8. The eighth paragraph refers to a decision made by the Commission pursuant to s. 34 of the Code. This paragraph is not relevant to the matters at issue at the hearing in this matter and is struck.

Paragraphs 2 to 4 of the Commission’s Hearing Brief

9Paragraphs 2 to 4 of the Commission’s Hearing Brief make reference to a complaint that had been filed against the respondent in relation to a raid in 2000 on the bathhouse Club Toronto on an evening when lesbian guests were in attendance (the “Club Toronto complaint”). The Commission states that it publicly announced the referral of this complaint to the Tribunal on June 17, 2004 just eight days prior to the incident at issue in this proceeding, and further makes reference to the settlement of this complaint the following December and the terms of that settlement.

10The respondent objects to these paragraphs on the basis that no nexus has been provided to establish the relevance of this other complaint to the matters at issue in the instant proceeding. The Commission states that the complainant’s allegations are more likely to be true because at the time of the incident, the officers involved did not have the benefit of the training provided for in the settlement of the Club Toronto complaint. I find that the relevance of paragraphs 2 to 4 are remote and speculative. I am further concerned that allowing the Commission to introduce facts relating to this other complaint has the potential to de-rail this hearing into collateral and irrelevant issues. This does not preclude the Commission from exploring what training the officers involved had received in relation to issues of sexual orientation, and making an argument whether any alleged lack of training may have contributed to the alleged incident.

11For these reasons, paragraphs 2 to 4 of the Commission’s hearing brief are struck.

Post-Incident Matters: Paragraphs 18 to 32 of the Commission’s Hearing Brief

12Paragraphs 18 to 32 of the Commission’s hearing brief relate to: the filing of a complaint by the complainant in relation to the incident in question under the Police Services Act; certain key pieces of evidence – a video and audiotape of the cell area on the night in question and the memorandum notebook of one of the involved officers – that the Commission alleges have gone missing; and the subsequent proceedings stemming from the complainant’s Police Services Act complaint.

13The respondent objects to these paragraphs on the basis that they do not relate to the subject-matter of the complaint and do not in and of themselves support any allegation of an infringement of the Code.

14In relation to the impugned paragraphs, the Commission has set out facts upon which it intends to rely at the hearing, which are relevant to the issue of whether the complainant’s rights have been infringed. The paragraphs relating to the alleged “missing evidence” are relevant to the Commission’s position that potentially corroborative evidence may have been destroyed by the respondent. The paragraphs relating to the Police Services Act complaint are relevant to the issue of whether the respondent took appropriate steps to address the complainant’s allegations. In addition, the alleged inconsistency between what one officer told the investigator and what is recorded in the officer’s notebook is relevant to the issue of this officer’s credibility.

15Accordingly, I find that paragraphs 18 to 32 of the Commission’s hearing brief are proper.

Amended Hearing Briefs

16The Commission shall serve and file an amended hearing brief that removes the paragraphs that have been struck by no later than December 10, 2008. No other amendment or modification is to be made to this hearing brief.

17The respondent shall serve and file its amended hearing brief by no later than December 17, 2008. This amended hearing brief shall remove any response to the paragraphs that have been struck and shall also remove the respondent’s objections to the remaining paragraphs that have been found to be proper. No other amendment or modification is to be made to this hearing brief.

18The Commission shall serve and file its reply by no later than December 22, 2008. The Commission’s reply shall not include any argument on the propriety of the paragraphs in its hearing brief. The Commission’s reply further shall not re-state its request for further disclosure, which is properly a matter to be addressed through a Request for an Order during Proceedings pursuant to Rule 77. No other amendment or modification is to be made to this reply.

ORDER

19For all of the foregoing reasons, the Tribunal makes the following Order:

1. the second, fourth, sixth, seventh and eighth paragraphs of the introductory section and paragraphs 2 to 4 of the Commission’s hearing brief are struck;

2. the Commission shall serve and file an amended hearing brief that removes the paragraphs that have been struck by no later than December 10, 2008;

3. the respondent shall serve and file an amended hearing brief in accordance with the directions given in this decision by no later than December 17, 2008; and,

4. the Commission shall serve and file its reply in accordance with the directions given in this decision by no later than December 22, 2008.