Washington v. Toronto Police Services Board, 2008 HRTO 39

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lloyd Washington

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board, Sanjee Aroda, David Wilson, Richard Stavintzky, Nicholas Morris, Peter Shaw, Thomas Hockney, Lorne Bragg, Julian Fantino and Clayton Douglas

Respondents

interim DECISION

Adjudicator: David A. Wright

Date: June 30, 2008

Citation: 2008 HRTO 39

Indexed as: Washington v. Toronto Police Services Board

Human Rights Tribunal of Ontario 655 Bay Street, 14^th^ Floor Toronto ON M7A 2C7 Phone (416) 314-8419 Fax (416) 314-8743 Toll free 1-866-598-0322 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

WRITTEN SUBMISSIONS BY

Ontario Human Rights Commission ) Brian Smith, Counsel

Toronto Police Services Board, ) Robert J. Baldwin, Sanjee Aroda, David Wilson, Richard Stavintsky ) Counsel Nicholas Morris, Peter Shaw, Thomas Hockney, ) Lorne Bragg, Julian Fantino, and Clayton Douglas )

INTRODUCTION

1On June 16, 2008, the Ontario Human Rights Commission (the "Commission") filed a Request for Order During Proceedings in accordance with Rule 77 of the Tribunal's Rules of Practice. The Request seeks production of various documents from the respondents and/or the Chief of Police for the City of Toronto, William Blair. It also seeks an order that the deadline for the Commission to file its hearing brief be extended until 45 days following the date on which the documents are produced. By letter to the parties dated June 17, 2008, the Tribunal advised that it would first decide the issues of whether the requested deadline extension should be granted and whether the production issues should be determined prior to the filing of hearing briefs, in light of the decision in King v. Toronto Police Services Board, 2008 HRTO 33. The Tribunal invited submissions from the other parties and reply from the Commission on this issue. For the reasons below, I order that hearing briefs be filed prior to a decision on the production request and order a timetable for the next steps in this matter.

THE COMPLAINT

2The complaint alleges discrimination on the basis of colour, creed, place of origin and race by many members of the Toronto Police Service against the complainant, through a series of incidents over a period of several years. The allegations include racial profiling, verbal and physical assaults, and misconduct at high levels. The complaint was filed with the Commission on June 24, 2004. By letter dated February 14, 2008, the Commission referred the matter to the Tribunal on the basis of s. 33 (6) of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). This section provides, "If a person refuses to comply with a request for production of documents or things, the Commission may refer the matter to the Tribunal, or may authorize an employee or member to apply to a justice of the peace for a search warrant under subsection (7)".

3The Tribunal held an Initial Conference Call in this matter on March 27, 2008, at which I presided. During the call, on consent of the parties, a date was set for a response by the respondents pursuant to Rule 45 of the Tribunal's Rules of Practice, and a further date for the Commission to either request that dates for hearing briefs be set or bring a request for order during proceedings. That date was extended on consent of the parties, and the Commission then brought this request.

THE PRODUCTION REQUEST AND THE HEARING BRIEF

4The Tribunal's decisions have articulated that in all but the rarest of cases, it will not determine procedural or preliminary matters prior to the filing of hearing briefs and the making of disclosure. In King, supra at paras. 14-18, the Tribunal considered and rejected the argument that this principle does not apply to s. 33 (6) referrals. It held that while one of the relevant factors in determining whether a particular case falls within an exception to the requirement to file hearing briefs is whether the case was filed under s. 33(6), there is no exception to the general principle for s. 33(6) cases. In other words, there must be something specific about the matter that merits in favour of a production order prior to hearing briefs other than the fact that the Commission has, in its view, not been able to complete a full investigation. In the particular circumstances of King, the Tribunal made the production order because of the procedural history of the matter and the fact that the issue was being determined for the first time: see para. 20.

5I have reviewed the Commission's submissions in support of its request that disclosure be ordered prior to the filing of hearing briefs. They are all based upon the unique features of s. 33(6) referrals and the Commission's view that it needs the requested documents in order to file a hearing brief. Such arguments were rejected in King. Once a matter is referred to the Tribunal, the parties enter an adjudicative process in which preliminary requests, except in rare circumstances, are evaluated in light of the parties' positions on the facts and the law as expressed in the pleadings. As emphasized in King at para. 18, if new information that comes to light as a result of production, the Tribunal may well permit an amendment to the pleadings. However, there is nothing unique about this case that suggests it should fall within the rare exception set out in the case law.

6In my view, the exchange of pleadings and disclosure in this case may well result in a narrowing of the issues and discussion between the parties that may make it unnecessary to determine various aspects of the production request. By the dates set for production in accordance with the Tribunal's rules, all parties must disclose all documents that are arguably relevant to the issues set out in the pleadings. The parties should evaluate their obligations under the rules and the Commission's production request in light of the Tribunal's case law on production in the police context, including King.

7The Tribunal sets the following schedule for hearing briefs and production.

(1) The Commission shall serve and file its hearing brief, pursuant to Rule 57, and provide production, pursuant to Rule 59, by July 29, 2008.

(2) The complainant, if desired, shall serve and file his hearing brief, pursuant to Rule 60, and provide production, pursuant to Rule 61, by August 8, 2008. By the same date, the complainant may make written submissions on the substance of the Commission's production request.

(3) The respondents shall serve and file their hearing brief(s), pursuant to Rule 63, and provide production, pursuant to Rule 65, by August 27, 2008. By the same date, the respondents and the Chief of Police shall provide a written response to the substance of the production request indicating, with respect to each category of documents requested: (i) whether they have provided the documents; and (ii) if not, the grounds on which they object to production and written argument in support of that position.

(4) By September 5, 2008, the Commission may make written reply on any outstanding production issues.