Ronald Phipps v. Toronto Police Services Board, Michael Shaw and William Blair, 2009 HRTO 1232

Human Rights Tribunal of Ontario

Between:

Ronald Phipps Applicant

-and-

Toronto Police Services Board, Michael Shaw and William Blair Respondents

Interim Decision

Adjudicator: Kaye Joachim Date: August 7, 2009 Citation: 2009 HRTO 1232 Indexed as: Phipps v. Toronto Police Services Board

Written Submissions By:

Ronald Phipps, Applicant (On his own behalf) Toronto Police Services Board, Respondent (Antonella Ceddia, Counsel) Michael Shaw and William Blair, Respondents (Lisa Cabel, Counsel) Ontario Human Rights Commission (Prabhu Rajan, Counsel)

1This Interim Decision deals with the request by the Ontario Human Rights Commission (the “Commission”) to intervene in the present Application. The word “request” is not quite accurate, as the Commission’s correspondence is in the form of a notice of intention to intervene, pursuant to section 37(2) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”). Section 37 provides:

37. (1) The Commission may intervene in an application under section 34 on such terms as the Tribunal may determine having regard to the role and mandate of the Commission under this Act.

(2) The Commission may intervene as a party to an application under section 34 if the person or organization who made the application consents to the intervention as a party.

2The Commission has obtained the applicant’s consent to intervene as a party and takes the position that it has the right to intervene pursuant to section 37(2), such that a request for intervention is not necessarily required.

3The Commission has indicated that they are seeking to participate in order to address the issue of the liability of William Blair and the Toronto Police Services Board (“TPSB”) for the actions of Constable Shaw.

4Respondents William Blair and Michael Shaw asked for an extension to file written submissions on the request to intervene which was opposed by the applicant. There is no prejudice to the applicant in the short extension requested by these respondents and I have accepted and considered their submissions in this Interim Decision. In any event, the respondents William Blair and Michael Shaw merely adopted the submissions of the TPSB.

5The respondents disputed the Commission’s assertion that it has a right to intervene as a party. The TPSB urged me to follow the approach taken in Boncori v. TRW Canada, 2009 HRTO 564 at paragraph 19:

The respondent takes the position that the statutory language makes it clear that section 34 applies to transition applications. I agree. However, in my view, the provisions of Part IV need to be adapted for the purpose of transition applications. For example, a person or organization may not be able to file a transition application on behalf of another person, though this is provided for in s. 34(5), and the Commission may not be able to intervene as of right in a transition application (and particularly in an application under s. 53(3)), though this is provided for in s. 37(2).

6The respondents submitted that the Tribunal should decline to exercise its discretion to permit the Commission to intervene because its position is already set out in the case law the Commission has indicated it intends to rely upon, the Commission has no particular expertise on the interpretation of the Police Services Act, the Commission failed to intervene at an earlier stage and the Commission may have an interest in the outcome of this issue, as the Commission is a party to other similar cases. In addition, it is not the role of an intervenor to assist an unrepresented party and their intervention may result in an unnecessary lengthening of the hearing.

Analysis

7It is unnecessary to decide whether provisions of section 37 apply to section 53(3) Applications.

8Regardless of whether the Commission may intervene as of right, I have determined that the Commission may intervene under the Tribunal’s Rules of Procedure for Transitional Applications:

5.15 The Tribunal will not ordinarily permit the introduction of expert evidence, other than medical reports, requests to add parties, requests to consolidate applications or requests to intervene in the application unless exceptional circumstances exist and doing so will not adversely affect the highly expeditious nature of the case resolution conference.

14.1 The Tribunal may allow a person, organization or the Commission to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

9Although the Rules contemplate that intervention will be rare in section 53(3) Applications, this is one of those cases where intervention by the Commission on the terms it has sought is appropriate. The issue of the liability of the Toronto Police Services Board and/or Chief William Blair is an important one and I am satisfied that the Commission’s participation on this issue will be useful to me. There is no case law on the issue of the liability of the Chief of Police. The applicant, who is self-represented and not legally trained, may not be able to provide a full argument on these issues. There appears to be little risk that the Commission’s intervention will unduly lengthen the hearing.

10Accordingly, the Commission is granted leave to intervene for the purpose of addressing the issue of the liability of the TPSB and Chief William Blair. This hearing shall resume on September 14, 2009 to hear the evidence and argument with respect to remedy and liability of William Blair and the TPSB.