Durrell Claybourn v. Toronto Police Service and Toronto Police Services Board, 2009 HRTO 1863

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Durrell Claybourn

Applicant

-and-

Toronto Police Service and Toronto Police Services Board

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: November 3, 2009

Citation: 2009 HRTO 1863

Indexed as: Claybourn v. Toronto Police Services Board

1This Interim Decision deals with a request by the applicant to add the Toronto Police Services Board (TPSB) as a respondent and for the production of documents. For the reasons which follow I have decided that the TPSB is a proper respondent to this Application.

Background

2Durrell Claybourn (the “applicant”) alleges in his Application that the Toronto Police Service (the “respondent”) discriminated against him on the basis of race, colour, sexual orientation and age in the provision of services, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant’s specific allegations are in relation to how he was treated by Toronto Police Service officers when he was stopped and questioned on two separate occasions; on July 18, 2007 and September 13, 2007.

3The respondent states in its Response that the Toronto Police Service is not a legal entity against which an Application can be made and that, accordingly, the Application is void. The Response includes several arguments as to why, in the alternative, the Application should be dismissed.

4After receiving the Application and Response and the applicant’s further Reply the Tribunal scheduled a hearing for July 20, 2009. On June 5, 2009 the applicant disclosed his witness statements and documents he wished to rely on. No materials were disclosed by the respondent.

5On June 16, 2009 the applicant, through newly retained counsel, filed a Request for an Order during Proceedings (the Request) asking the Tribunal to order that the Toronto Police Services Board (TPSB) be added as an organizational respondent and that the respondent and the TPSB and/or William Blair, Chief of Police (the “Chief”) disclose a number of particular documents or records. The Request was served on the TPS, the TPSB and the Chief. On June 30, 2009 the respondent and the TPSB filed responses opposing the Request. The July 20, 2009 hearing date was subsequently postponed in light of the timing and disputed nature of the applicant’s Request.

Request to Add a Respondent

6I received responses to the applicant’s Request from both the respondent and the TPSB. The respondent relies on the TPSB’s submissions in regards to the Request. The TPSB opposes the Request on the grounds that it is not responsible or liable for the conduct of individual police officers. The TPSB argues that it is not subject to section 46.3(1) of the Code and that this is the only section of the Code that could potentially be used to argue that TPSB is liable for the actions of individual officers.

7Section 46.3(1), the “deemed liability” section of the Code states, in part:

46.3(1) For the purposes of this Act…any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ association.

8The TPSB submits that it is not an entity described in section 46.3(1) as it is not a corporation, trade union, trade or occupational association, unincorporated association or employers’ association. Moreover, it argues that in drafting the Code the Legislature could have easily have included the term “police services board” as it did when defining “person” in section 46 of the Code. Accordingly, the TPSB submits that, by exclusion, a police services board was not intended to be an entity to which 46.3 could apply and as such no liability can be attached to the TPSB for any actions of a police officer that may violate the Code.

9The TPSB argues that a police officer is an independent officer of the Crown and that consequently is not in a master servant relationship with anyone and is not an employee like any other. The TPSB argues that the courts, at all levels, have recognized that the authority wielded by a police officer is independent of any employment contract and exercised at his or her own discretion. Accordingly a police officer is not an agent of anyone, including the TPSB and is therefore not described in section 46.3(1).

10The TPSB further argues that it was created and is governed by the Police Services Act R.S.O. 1990, c. P.15, as amended (the PSA) which both establishes and limits its powers and functions. Pursuant to section 31(3) of the PSA the TPSB can only give orders and directions to the Chief of police and that it is the Chief, not the TPSB who assigns duties to police officers. Moreover, it is the duty of the Chief, pursuant to section 41(1)(b) of the PSA, to ensure that the police force carries out its duties according to the PSA and it is the responsibility of the Chief, pursuant to section 68 of the PSA, to deal with complaints made by members of the public about the conduct of a police officer.

11I have not been persuaded by these arguments. I am of the opinion that, in accordance with the principle that human rights legislation should be given a broad, liberal and purposive interpretation, the TPSB and the individual police officer are entities that are described in 46.3(1). I do not conclude that the failure of 46.3(1) to explicitly refer to police service boards is a reflection of legislative intent. In coming to this conclusion I am following the Tribunal’s Interim Decision in King v. Toronto Police Services Board, 2009 HRTO 644 (“King”). I agree with and accept the Vice-chair’s determination in King (para17) when he states:

Whether the Board is a “corporation” or an “unincorporated association”, the language of this provision [section 46.3(1)] is large enough to capture the Board as an organization. Further, in my view, a police officer clearly can be regarded as “an officer, official, employee or agent” of the Board, in light of the fact that police officers are appointed by the Board and in light of the Board’s statutory responsibility to provide adequate and effective police services, notwithstanding that the Board does not have the power to specifically direct an individual police officer.

12I agree with the TPSB’s submissions that police officers are not traditional employees and that they are not subject to any direct supervision by the TPSB (and that the Chief of police exercises considerable control over their work) but again, under the principle that human rights legislation should be given a broad, liberal and purposive interpretation, I am satisfied that the individual police officer does have a form of employee -employer relationship with the TPSB. As noted in Washington v Toronto Police Services Board 2009 HRTO 217 (Can LII) (para 29) (and quoted and accepted and adopted in King):

There are unique features about the relationship between municipal police services boards (“PSBs”) and uniform officers that make it different from a traditional employment relationship. These arise because of the legal status of police officers and the particular disciplinary regime in Part V of the PSA. Nevertheless, PSBs are, in very many ways, like the officers’ employer. The PSA provides that members of the police force are appointed by the PSB (s. 31(1)(a)), are “under the board’s jurisdiction” (s. 31(2)), the board may “terminate a police officer’s employment” during their probationary period (s. 44(3)) and may discharge a member because accommodation of a disability may result in undue hardship (s. 47). Under s. 126(3), PSBs bargain with police associations to reach agreements “dealing with the remuneration, pensions, sick leave credit gratuities and grievance procedures of the members of the police force and, subject to section 126, their working conditions”. They also establish guidelines for dealing with public and internal complaints against members of the force under Part V (s. 31(1)(i). The PSB is the equivalent of an employer for most purposes, and certainly has an important role in relation to the discipline and complaints process

13And while the courts at all levels may have recognized that the authority wielded by a police officer is independent of any employment contract, as stated by the TPSB, the courts have also ruled that employment relationships in the human rights context do not have to be strictly “master-servant” in nature, that the terms “employment” and “employee” should be interpreted liberally (see Canadian Pacific Ltd. v. Canada (Human Rights Commission), [I9911 1 F.C. 571 (C.A.) quoted in Canada (Attorney General) v. Rosin, [I9911 1 F.C. 391 (C.A.), Pannu v. Prestige Cab Ltd. (1986)A.J. NO. 1717 (Alta CA). Accordingly, I am satisfied that when section 46.3(1) refers to “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent” this can and does cover actions taken by an individual police officer; actions for which the TPSB has a deemed liability.

14The TPSB argued that the Vice-chair in King did not definitively rule on the issue of TPSB liability but only decided that he was not prepared to dismiss the complaint before him at an early stage on the basis that the TPSB was not described in section 46.3(1). The TPSB noted that the Vice-chair indicated that he would only decide whether the TPSB was liable after considering all the evidence received at the hearing. The TPSB argued that given the nature of this decision the reasoning applied in King is obiter and not binding.

15I am satisfied from my reading of King that the Vice-chair did, in effect, conclude that the TPSB and police officers are entities which are subject to section 46.3(1). The paragraphs cited above from King support this conclusion.

16The test for the addition of a respondent has been set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at paragraph 12:

When determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

17All three parts of this test are met in this case. I am satisfied that if one or more of the police officers identified by the applicant are found to have acted in the discriminatory manner alleged by the applicant the TPSB can be held to have violated the Code. This clearly follows my conclusion that the TPSB is subject to 46.3(1).

18Another compelling reason for adding the TPSB is its potential role in authorizing remedies which could arise from the Application if they were to be found liable, remedies that could include organizational anti-discrimination measures. I am satisfied that the TPSB has this authority given its defined responsibilities under the PSA including its responsibility to establish policies for the effective management of the police force (section 31). I further note that in Phipps v Toronto Police Services Board 2009 HRTO 1604 it was revealed that the TPSB and the TPS have partnered with the Ontario Human Rights Commission to conduct a comprehensive systematic review of TPS procedures and systems to ensure compliance with the Code and to incorporate human rights and anti-racism perspectives in all policing activities, thus indicating that the TPSB is, on a pro-active basis, currently involved in organizational anti-discrimination measures.

19Given the nature of the responsibilities and liabilities of the TPSB it is only fair, under the circumstances, that it be added as a respondent.

Request for the Production of Documents.

20The applicant has requested that TPSB, the respondent and/or William Blair, the Chief of Police produce any documents or records with respect to any complaints made against the four police officers identified by the applicant in relation to discrimination based on race, colour or age including complaints from the public, complaints in the officers’ personnel files, employment records or professional standards files and the outcome of these complaints including any imposed discipline. The applicant has also requested any and all documents, records or reports related to the incidents of July 18, 2007 and September 13, 2007 involving the applicant including the notes of the officers involved (and the 911 transcript in relation to the July 18 incident and the originating complaint from the September 13 incident.)

21In response to this request both the TPSB and the respondent state that the documents requested are in the possession and control of the Chief, as are all police documents. TPSB states that it will adopt the position of the Chief in respect to the request for documents. The respondent states that it is prepared to list and produce all documents as authorized and disclosed by the Chief.

22I am prepared, under the circumstances, and in light of past Applications involving the TPSB as respondent (see King, supra and Washington v. Toronto Police Services Board, 2009 HRTO 217) to accept that police documents are in the possession and control of the Chief and that it is his decision whether they will be voluntarily disclosed. Given that the TPSB and the TPS are now both formally named as respondents and given that the Chief was specifically served with the applicant’s Request the Tribunal is satisfied that that the Chief is in a position to now respond to the applicant’s formal request for documents. The Chief is ordered, pursuant to Rule 1.7 of the Tribunal’s Rules of Procedure, to provide such a response within three weeks of the date of this Interim Decision.

23It is recognized that there are a number of other issues that have been raised by the parties and that will have to be addressed including the possible intervention of the Toronto Police Association and the re-scheduling of the applicant’s hearing. These and other issues will be discussed once the Chief’s response has been submitted.

Order

24The Chief of Police shall provide a formal response to the applicant’s request for production of documents within three weeks of the date of this Interim Decision.