Krieger v. Toronto Police Services Board, 2009 HRTO 1896

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ariyeh Krieger Applicant

-and-

Toronto Police Services Board and William Blair Respondents

Interim Decision

Adjudicator: Naomi Overend Date: November 6, 2009 Citation: 2009 HRTO 1896 Indexed as: Krieger v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Ariyeh Krieger, Applicant ) Caroline (Nini) Jones, Counsel

Toronto Police Services Board and ) Heather Crisp, Counsel William Blair, Respondents )

Toronto Police Association ) Tim Zayack, Representative

INTRODUCTION

1This Interim Decision deals with the applicant’s request for production of personnel and Labour Relation files for a specified group of probationary police constables.

2Over the course of time, the production request set out in the August 17, 2009 Request for Order has been amended in response to the difficulties raised by the respondent in obtaining the documents initially requested. The amended production request is as follows:

• The evaluations and supporting memoranda from the personnel files of all probationary constables for the years 2003-2008 in 32 Division who continue to be assigned to 32 Division; and

• The Labour Relations files for all probationary constables who were recommended for termination during the years 2003-2008.

DECISION AND ANALYIS

3The Tribunal has articulated the appropriate test for production in Lampi v. Princess House Products Canada Inc., 2008 HRTO 1:

Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing.

Probative Value

4It is clear from the respondents’ opening and subsequent submissions that they are relying on the applicant’s entire record to justify his termination from the Toronto Police Service (“TPS”). This would include his pre-disability conduct, the conduct arising from his disability and his post-disability failure to report twice a day. The respondents take the position that the “entirety” of the applicant’s conduct is relevant not just to the issue of liability but to the issue of appropriate remedy in the event that liability is found.

5The applicant argues that “[a]n appropriate way to examine the performance concerns raised against Cst. Krieger is to compare them to other probationary constables in the TPS at the time.” The documents requested “will assist in assessing how his performance compared to the performance of other probationary constables in the Service.”

6The applicant has, in fact, already called comparative evidence concerning his performance vis-à-vis other probationary constables. Tim Zayack, who has been a Uniform Field Director with the Toronto Police Association (“TPA”) since October 2004, testified that he has reviewed numerous performance appraisals in his tenure with the TPA. It was his view that the unvarying satisfactory ratings on the applicant’s two pre-disability performance appraisals point to the fact that he was progressing well as a probationary constable. He testified that he has never seen a probationary constable with comparable satisfactory ratings be recommended for termination. Mr. Zayack’s evidence on this point was not challenged by the respondents in cross-examination.

7In this motion, neither the applicant nor the TPA suggested that there were individuals whom they believe would be particularly apt comparators. Indeed, counsel for the applicant argues that until she is allowed to see the requested files, the applicant will not know if there are individuals who were in a comparable position to the applicant who either did or did not make their probation.

8At this stage in the proceedings, the attempt to gain access to this information would take attention away from the important issues in this case, namely, did the applicant experience discrimination on the basis of disability and, if so, what is the appropriate remedy. This is not to say that the records have no arguable relevance, or that in different circumstances, they might not be critical. However, given the issues in this case and the evidence I have heard thus far, I find that any evidence that might be obtained from this production request would be of little assistance to me. Expressed in the language of the test to be applied, the probative value of the requested production is low.

Prejudice

9In response to a request from me, the respondents did a preliminary investigation to ascertain what would be involved in the production request. With respect to the first half of the applicant’s request, the respondents advise the following: Of the 77 probationary constables assigned to 32 Division during the relevant period, 63 remain there. Each of these 63 files would contain six performance appraisals for the probationary year, and each of those appraisals is six pages in length. In addition, the applicant has also requested any memos put in these individuals’ respective files during their probationary year. The respondents argue that any third-party information (e.g., the names and identifying information of complainants) would have to be redacted from these documents. Whether or not photocopying of these files would be necessary – counsel for the applicant has indicated that she would be prepared to sit in a room at 32 Division to view the files – it would require staff time to pull, review and redact these files prior to any such visit.

10With respect to the second half of the applicant’s request, the respondents have been unable to ascertain the number of probationary constables recommended for termination, but know that 58 probationary constables ended their employment with the Toronto Police Services during this period, some of whom would fall into the category of recommended for termination. The respondents advise that it would be necessary for a Labour Relations analyst to review all 58 files to ensure that they contain all the appropriate information (and, if not, to track down and order the missing information), and to ensure that only the files of those who fall into the termination category are disclosed. Again, third-party information would have to be redacted.

11Of even greater concern to me than the work involved in such a production request is a concern for the privacy interests of the affected third-party police officers.

12At this stage, the prejudice in requiring the respondents to produce these files outweighs the minimal probative value of the information contained within those files. I, therefore, deny the applicant’s request for production.