A.S. and E.C. v. Toronto Police Services Board, 2008 HRTO 56

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.S. and E.C.

Complainants

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: August 21, 2008

Citation: 2008 HRTO 56

Indexed as: S. and C. v. Toronto Police Services Board

Human Rights Tribunal of Ontario 655 Bay Street, 14^th^ Floor Toronto ON M7A 2A3 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

ORAL aND WRITTEN SUBMISSIONS BY

A.S. and E.C., Complainants ) Jane Letton, Law Student

Toronto Police Services Board, Respondent ) Robert Baldwin, Counsel

Geneva Centre for Autism / Respite Services, ) Paula M. Rusak, Counsel Proposed Respondent )

Ontario Human Rights Commission ) Prabhu Rajan, Counsel )

INTRODUCTION

1This interim decision deals with the request of the respondent Toronto Police Services Board (“TPSB”) to add Respite Services/Geneva Centre for Autism (“Respite Services”) as a respondent party in these proceedings with respect to the complaint of A.S.

2Due to the similarity of legal issues and the existence of the same respondent party (TPSB), the Ontario Human Rights Commission (the “Commission”) combined the complaints of A.S. and E.C. for joint referral to the Human Rights Tribunal of Ontario, (the “Tribunal”). The facts summarized below are with respect to the A.S. complaint only and are relied upon strictly for the purposes of disposing of this request. The A.S. and E.C. hearing is scheduled to commence in November 2008.

BACKGROUND

3The complaint alleges that A.S. was subjected to discrimination by the TPSB because of mental disability in the provision of services contrary to sections 1 and 9 of the Ontario Human Rights Code, R.S.O. 1990, c.H-19 as amended, (the “Code”). The complaint challenges the TPSB’s policy and program with respect to executing “police reference checks” in circumstances where the police record discloses detentions under the Mental Health Act, R.S.O. 1990, c.M-7.

4The facts and issues, as gleaned from A.S.’s complaint, response, hearing briefs and motion materials, are as follows.

5In 1995, the Ontario Ministry of Community and Social Services required provincially funded or licensed agencies working with vulnerable people (children, elderly, persons with disabilities, etc.) to conduct police records reference checks on all employees or volunteers in positions of trust involving vulnerable people. Given this Ministry directive, the TPSB adopted a reference check program.

6In May 2002, the complainant, A.S., was a high school student. As a result of small cuts on the complainant’s arm, school officials became concerned about the status of the complainant’s mental health and contacted the police and ambulance. The complainant was apprehended by TPSB officers and transported to a hospital pursuant to provisions under the Mental Health Act, which allow the police to take someone to a medical facility when there are concerns of self-harm. This apprehension, and the perceived mental health concerns giving rise to it, formed the basis of a report contained in the TPSB’s police records.

7In July 2004, eager to pursue a career in social services, the complainant applied for work through Respite Services (now under the ambit of the Geneva Centre). The complainant sought to be placed on a recruitment database operated by Respite Services. The database posted profiles of recruits, such as respite workers, baby sitters and physical therapists, seeking to be employed by families of children with disabilities. The recruits must participate in Respite Services’ screening and orientation process in order for their profiles to be listed on the database. After being interviewed by Respite Services and attending their training, the complainant was advised that she would have to undergo a police reference check as part of the screening process. The complainant consented to a police reference check.

8In early September 2004, the TPSB notified Respite Services that A.S.’s reference check indicated that there was “information on file”. Based on this notification, and possibly other information from the TPSB (the existence and extent of which remains in dispute), Respite Services refused to post the complainant’s profile on its recruitment database. The complainant alleges that she was advised by Respite Services that she was automatically disqualified because her police reference check came up “positive”. Shortly thereafter, the complainant received a copy of her police records from the TPSB. The complainant discovered that the information on file pertained to a record documenting the May 2002 incident.

9The complainant filed her complaint with the Commission on March 1, 2005. The complainant alleges that the TPSB’s reference check program and practice of disclosing apprehensions pursuant to the Mental Health Act constitutes discrimination in the provision of police services on the basis of mental disability. In the closing paragraph of her complaint, the complainant describes the adverse treatment allegedly engendered by the TPSB’s reference check policy and program as follows:

The Toronto Police Services is treating me differently from other citizens they serve, based on my perceived disability at the time of the detention. This differential treatment has no rational connection to the purpose of a police reference check. The purpose of a police reference check is to ensure the safety of the public by identifying to potential employers the persons who have a history of involvement with police due to actual or suspected criminal activity. In contrast, persons detained under the Mental Health Act are not involved in any criminal activity at the time of detention. Yet they are lumped together with suspected and convicted criminals in a police reference check. The inclusion of these incidents perpetuates the stereotypical and false view that persons with psychiatric disabilities are criminals and a danger to society. The reality is that the vast majority of persons with psychiatric disabilities are not dangerous to others. The policy is clearly discriminatory against persons with psychiatric disabilities because it creates a serious barrier in gaining employment, as my case exemplifies.

10Accordingly, the complainant seeks compensation for lost wages, mental anguish and the loss of the inherent right to be free of discrimination (general damages).

11The Commission supports the complainant’s allegations of discriminatory treatment and claim for special, general and mental anguish damages. The Commission indicates that the TPSB contravened the Code, in part, because “[t]he respondent does not exercise any discretion in disclosing the existence of ‘information on file’ depending on the individual, and particular circumstances of the police interaction and the nature of the job or volunteer position.” Included in the various public interest remedies it has claimed, the Commission seeks that the TPSB modify its reference check program to undertake an objective evaluation of the relevance of any police record/information of concern within the context of the employment/volunteer position, the responsibilities of the position and the potential risk to vulnerable people.

12The TPSB denies that the reference check program is discriminatory and instead argues that, because the primary goal of the reference check program is to protect vulnerable people, it is a special program within the purview of section 14 of the Code. The TPSB contends that its practise is to simply notify the inquiring agency when the reference check has been completed and a summary of the information contained in the police records is sent to the individual applicant only, not the agency. The exact nature and amount of information disclosed by the TPSB to Respite Services remains in dispute. The TPSB asserts that it has no role in assessing whether the applicant ought to be granted the position sought. Thus, the TPSB alleges that, while it is not admitted, to the extent that there has been any contravention of the Code it was occasioned by the discriminatory actions of Respite Services in refusing to accept the complainant for its recruitment database.

POSITION OF THE PARTIES REGARDING REQUEST TO ADD RESPITE SERVICES

13In accordance with a schedule set by this Tribunal, the TPSB filed its Request to Add Respite Services as a respondent party on June 6, 2008, and served Respite Services on the same date. The Tribunal received written submissions and heard oral submissions from all parties and Respite Services by way of pre-hearing conference call on August 7, 2008.

TPSB

14In seeking to add Respite Services as a respondent party, the TPSB maintains that its reference check policy and program is not discriminatory. The TPSB asserts that the facts, as alleged in the complaint, suggest that if there was an infringement of the Code, then such contravention was solely by Respite Services for summarily refusing to accept the complainant for its recruitment database. The TPSB suggests that an outright refusal by Respite Services to accept the complainant would have been contrary to its Memorandum of Agreement with the TPSB, which should have stipulated that the agency must provide a review process for rejected applicants. Consequently, the TPSB argues that “[i]f there is a Code violation, the Monetary Remedies sought against the Respondent [TPSB] should instead be asserted solely against Respite, as it is solely responsible for the same.” The TPSB claims that it forwarded a copy of A.S.’s human rights complaint to Respite Services in July 2005 in order to alert them to their potential liability. The TPSB contends that Respite Services can demonstrate no prejudice to its ability to defend against the allegations.

Commission

15The Commission supports the TPSB’s request to add Respite Services to these proceedings. However, the Commission disagrees that Respite Services is solely responsible for any violation and damages. The Commission submits that both the TPSB and Respite Services would be responsible under the Code for their respective conduct and both should be liable for monetary and public interest remedies.

Complainant

16The complainant objects to the addition of Respite Services as a respondent. The complainant emphasizes that her complaint seeks to challenge the TPSB’s reference check policy and program only. The complainant argues that, while the reference check program may serve as a source of information involving other Code contraventions, it is the TPSB’s policy and practise of disclosing mental health apprehensions which is under scrutiny. The complainant argues that even if the Memorandum of Agreement between the TPSB and Respite Services stipulated that the agency provide a review process (the existence and nature of such a stipulation is disputed in this case), the availability of reconsideration by the agency does not alleviate the TPSB’s obligation to provide its reference check services in a non-discriminatory manner. The complainant asserts that the addition of Respite Services as a respondent would significantly detract from the core issue of the complaint, namely whether the TPSB’s reference check policy and program of including and disclosing apprehensions under the Mental Health Act constitutes discrimination.

Respite Services

17Respite Services opposes the request to be added as a respondent on the basis that it is seriously prejudiced because it was unaware of the human rights complaint. It has destroyed all records pertaining to the complainant’s 2004 application and it cannot confirm that it will be able to ascertain the identity of its representatives who were involved in the A.S. reference check inquiry. Respite Services denies that it received a copy of the A.S. complaint from TPSB in 2005 and indicates that it only learned about the complaint upon receiving notice of the current Tribunal proceedings in July 2008. Respite Services posits that this lack of notice foreclosed its ability to contemporaneously rectify the problem. Respite Services contends that it does not, and would not have, denied A.S.’s application if it had been informed that the police record pertained to a non-criminal, mental health matter.

18Respite Services further asserts that it had a peripheral and limited role in the events in question and was in no way involved in how TPSB vetted or disclosed the reference check. Respite Services describes itself as a recruitment “screener” for families seeking to hire support workers, who simply relies upon the information provided by the TPSB’s reference check program. The information supplied by the TPSB’s reference check indicated to Respite Services that some form of police record involving a criminal offence for which no pardon had been granted existed about the complainant. Respite Services states that it was entitled to rely upon the information furnished by the TPSB and that the TPSB cannot now escape liability for the content of the information (or lack thereof) and the manner that it was supplied.

19Respite Services refutes the fact that its Memorandum of Agreement with the TPSB included a provision that the agency implement a review mechanism for rejected applicants. Respite Services agrees with the complainant that the “source of the Human Rights violation is the Respondent [TPSB] and their policies of disclosing records of police contact under the Mental Health Act as part of the police reference check program.” Respite Services argues that the TPSB’s Request to Add a respondent is simply an attempt to divert attention from the key issues of the complaint, as well as to shift liability and reduce exposure to damages for its own policy and program. Respite Services declares that the TPSB’s request to add Respite Services is not only inappropriate, but further ignores that Respite Service was also a victim of the misinformation supplied by the TPSB.

ANALYSIS AND DECISION

Appropriate Test

20It is well established that the Tribunal is empowered to add a respondent party. This authority arose from s. 39(2) and (3) of the old Part IV of the Code. Subsection 39(3) stated: “A party may be added by the Tribunal under clause 39(d) or clause 39(e) at any stage of the proceeding upon such terms as the Tribunal considers proper” (emphasis added). In Payne v. Ontario Board of Inquiry (2000) O.J. No. 1896 (Ont. Div. Ct.), the Divisional Court confirmed the Tribunal’s jurisdiction to add a party upon such terms as the Tribunal considers proper; followed by the Board of Inquiry in Payne v. Otsuka Pharmaceutical Co. [2001] O.H.R.B.I.D. No.23. Effective June 30, 2008, this provision has been replaced by section 36 of the new Part IV, which notes that “parties” include any person added by the Tribunal as a party.

21In Greenhorn v. Belleville Dodge 2006 HRTO 22, the Tribunal reviewed the Payne line of jurisprudence and synthesized a two-pronged test to be applied when dealing with a request to add a respondent party. In determining whether it is appropriate to add a proposed respondent, the Tribunal must first consider whether or not there are facts alleged, that if proven, would support a finding that the proposed party violated the Code. Second, the Tribunal must consider whether the proposed respondent demonstrated that its addition as a party at this stage in the proceeding would impair its ability to make full answer and defence. This test was reiterated in the recent decision of Pieters v. LCBO 2007 HRTO 22, which highlighted that the latter step must include consideration of whether the asserted prejudice can be alleviated or cured by a Tribunal order.

22It is important to note that what flows from these decisions is the understanding that the test to add a party is not applied pro forma or by rote. The overarching question, as suggested in the Payne decisions and Greenhorn, supra at para. 18, is “whether it is appropriate to add the proposed party”. The Code requires dispositions of applications in a fair, just and expeditious manner. Further, the Tribunal’s current Rules of Procedure state that the Tribunal may add a party “in order to provide a fair, just and expeditious resolution of any matter before it”, see Rule 1.7. As such, the determination to add a party must be governed by what is appropriate in the circumstances, as well as what is just and fair for a hearing and resolution of the complaint. While it is clear that the Tribunal is empowered to add a party, as stated by the Divisional Court in Payne “[w]hether it ought to happen is quite another matter for determination by the Board on whatever material and arguments may [b]e addressed to it on the subject”, supra at para. 4.

Should Respite Services Be Added As A Respondent?

23On the basis of the materials filed by the parties, it is apparent that the focus of the subject-matter of the A.S. complaint, as it was referred to the Tribunal, is the complainant’s right to be free of discrimination in services under section 1 of the Code. The section 1 allegation of discrimination in the provision of services pertains to the service being provided by the TPSB through its police records reference check program. Both the complainant and Respite Services have highlighted that the complaint seeks to challenge the TPSB’s policy and practice of police reference checks in relation to mental disability, namely how the TPSB undertakes, vets and discloses police records regarding Mental Health Act apprehensions. Thus, the two-prong test for adding a party, namely whether the facts as alleged could support a finding that the proposed respondent violated the Code and whether there is any prejudice that cannot be alleviated by a Tribunal order, must be assessed in the context of the subject-matter of the complaint as it currently exists framed as an alleged section 1 infringement.

24In my view, the facts and legal issues described in the parties’ materials do not support a complaint against Respite Services under section 1 of the Code. The subject-matter of this complaint, as it was referred to the Tribunal and particularized in the hearing briefs, is a section 1 complaint, not a section 5 complaint of discrimination with respect to employment. Although A.S. indicates that she was ultimately denied an opportunity to secure employment through Respite Services’ recruitment database, it is clear this concern arises only as a consequence, and subsequent to the chronology, of the alleged section 1 discrimination in the provision of police services. The loss of employment opportunity issues are derivative to the core issue of discriminatory treatment in police services, and appear to be noted for the purposes of describing the alleged long term impact of the TPSB’s policy of including mental health apprehensions in reference checks.

25The substance of the complaint, or in other words the subject-matter before the Tribunal, is in essence a challenge to a systemic policy. The policy under attack is the TPSB’s interpretation of its responsibility to collect and maintain information regarding Mental Health Act interactions and to disclose, through its reference check program, the existence of certain information, including such mental health apprehensions. It does not appear that Respite Services had a role in the development or execution of the TPSB’s policy and program regarding Mental Health Act apprehensions. There is no specific allegation impugning Respite Services as a partner in the TPSB’s provision of services under its reference check program.

26Further, the TPSB’s response expressly raises the issue of whether its policy of providing certain information to agencies dealing with vulnerable clients can be defended as a “special program”. The TPSB relies on the fact that its reference check program is providing a “special” ameliorative service to agencies that may bring the program within the ambit of section 14 of the Code. The alleged facts, legal issues and the potential defences that underpin the subject-matter of the complaint (and as framed in the existing pleadings) all address the social area of provision of services, not employment. As such, I am not satisfied that the addition of Respite Services as a respondent is appropriate in the circumstances of this complaint.

27To add Respite Services would alter the fundamental nature and scope of the complaint and shift the focus of the allegations germane to a section 1 infringement in the provision of services to an entirely different social area, namely discrimination with respect to employment contrary to section 5. The addition of this new respondent would likely necessitate the inclusion of the social area of “employment” - an area that is clearly a discrete and independent basis from the “services” as alleged against the respondent TPSB. These additions would likely involve a substantial amendment and expansion of the complaint, the allegations and pleadings.

28In reaching this conclusion, I am fully aware of the jurisprudence that has held the first branch of the test to add a respondent is a low one, where the moving party need simply show an appearance or semblance of a violation by the prospective respondent of the complainant’s rights under the Code; see for example Greenhorn, supra para. 22. However, I find that this low threshold must be analyzed in reference to the subject-matter of the complaint and be guided by the Code and Tribunal’s Rules of Procedure to deal with such requests in a manner that facilitates a fair, just and expeditious resolution of the matter before the Tribunal. The application of the two-pronged test cannot be void of an understanding about the effects of the addition of the prospective respondent and any new social area and allegations to the proceeding. A failure to consider the effects of adding the prospective party and concomitant social area and allegations to the subject-matter of the complaint does not serve the interests of the existing parties to the complaint and is not consistent with Tribunal’s guiding principle to resolve matters in a fair, just and timely manner.

29I wish to be clear that my decision not to add Respite Services because, inter alia, it does not appear that it had a role in the provision of the section 1 reference check service should not be taken to mean that the subject-matter of a complaint is to be interpreted narrowly. The general principle, well-established in human rights jurisprudence, that the language of the Code and complaints made thereunder are to be given fair, large and liberal interpretation, stands steadfast. In future cases, other panels of the Tribunal may add new parties, grounds, and social areas that flow from the complaint based on the circumstances of the case, the facts, and issues before them. In the unique circumstances of this case, and considering the complainant’s opposition to the request, I find that adding Respite Services as a respondent would protract and sidetrack the hearing into an individualised employment complaint, while detracting from its current manifestation, that being a hearing into combined complaints of section 1 systemic policy services discrimination.

30Lastly, I find that the TPSB’s concern that it may be held liable for damages which it alleges have little nexus to its reference check program can be dealt with through arguments on the appropriate remedy and apportionment should a Code violation be found.

31In light of these factors, I consider it unnecessary to determine the question of prejudice to the proposed respondent.

32For all of the above reasons, I hereby decline to exercise my discretion to add Respite Services and dismiss the request of the TPSB.