Yousufi v. Toronto Police Services Board, 2009 HRTO 20

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdullah Yousufi

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board, Keith Bradshaw, Ed Stewart and Brian Ward

Respondents

Interim DECISION

Adjudicator: Kaye Joachim

Date: January 8, 2009

Citation: 2009 HRTO 20

Indexed as: Yousufi v. Toronto Police Services Board

APPEARANCES BY

Abdullah Yousufi, Applicant on his own behalf

Toronto Police Services Board, Ed Stewart and Brian Ward, Respondents (Sharmila M. Clark, Counsel)

Keith Bradshaw, Individual Respondent (Gary R. Clewley, Counsel)

Ontario Human Rights Commission (Sharon Abrahams, Counsel)

1This Interim Decision addresses the applicant’s request to amend the complaint to add the ground of creed, the respondents’ request to exclude the proposed expert witness of the Ontario Human Rights Commission (the “Commission”), and other case management issues.

BACKGROUND

2The complaints in this matter were filed with the Commission on May 27, 2002 and April 8, 2004 and referred to the Tribunal on December 4, 2006. A mediation held on May 11, 2007 did not resolve the issues and the Tribunal scheduled dates for the exchange of pleadings by July 2007. At the request of the parties, the dates for filing additional statements of facts were extended several times, and these statements were not filed until May 2008. Case management meetings were held on June 9, 2008, August 28, 2008 and October 6, 2008 in an effort to focus the issues in dispute and identify the evidence required for the hearing and the manner in which it should be presented.

3The applicant self-identifies as a non-white person of Afghan descent who is perceived to be of the Muslim faith. The May 2002 complaint alleged that the complainant had experienced harassment and was subjected to a poisoned work environment because of his ethnic origin, contrary to sections 5(1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The ground of creed was not specifically identified in the complaint.

4In his April 2004 complaint the complainant alleges that he experienced negative workplace consequences as a result of filing the first complaint, such as the denial of training and the elimination of his position, contrary to section 8 of the Code. Specifically, the complainant alleges that the respondents used the Civilian Review process to mask their attempt to downsize or eliminate his position.

Case Management Directions

5The Tribunal directed that the complaints will be heard in three stages. The first stage will address the allegations that the complainant was subjected to a poisoned work environment as a result of harassment because of his ethnic origin, and that the Toronto Police Services Board failed to provide a non-poisoned work environment and failed to adequately address harassment that the employer knew about or ought reasonably to have known about (the “employment discrimination and harassment allegations”). These are specifically set out in paragraphs 2 to 62 of the Commission’s statement of facts.

6The second stage of these proceedings will address the allegations that, as a result of the filing of his first complaint in May 2002, the complainant experienced negative workplace consequences, such as the denial of training and the elimination of his position through the Civilian Review process (the “reprisal allegations”). These allegations are specifically set out in paragraphs 63 to 93 of the Commission’s statement of facts.

7The third stage of these proceedings will address the remedial implications, if any, arising from the Tribunal’s determinations in stage one and two.

8The Tribunal directed that the most expeditious method of proceeding in light of the numerous witnesses involved is for each party to file affidavits of their witnesses’ evidence and proceed, subject to brief examination-in-chief, with cross-examination and reply of each witness. There was no objection to this proposal.

Amendment of the Complaint

9In its statement of facts and remedy, the Commission sought leave to amend the complaint to add the ground of creed. The Commission submits that the original complaint and the expanded statements of facts could also found a complaint of discrimination on the basis of creed, in that the complainant was perceived to be of the Muslim faith. The respondents, other than John Crilly, opposed the requested amendment on the basis that they are prejudiced by the five year delay in requesting the amendment. No specific prejudice arising from the proposed amendment was identified.

10The amendment was granted in an oral ruling made October 6, 2008. I find that there is no prejudice to the respondents in amending the complaint at this stage of the proceedings. It does not add additional factual allegations but merely permits the Commission and the complainant to pursue an alternative legal argument to the effect that the alleged poisoned work environment and harassment arose either because of the complainant’s ethnic origin and/or as a result of his being believed to be of the Muslim faith. The following cases support my ruling: Grace v. Mercedes Homes Inc. (1995) 1995 CanLII 18162 (ON HRT), 23 C.H.R.R. D/350; Jeffrey v. Dofasco Inc., (2000) O.H.R.B.I.D. No.11 [C.H.R.R.] (Ont. Bd. Inq.).

Proposed Expert Witness

11The Commission proposed Dr. Jasmin Zine, as an expert witness in the fields of racism, racial profiling, Islamophobia and racial trauma. A will say statement was provided setting out her proposed testimony. The respondents challenged the proposed witness’s expertise, the relevance of the proposed evidence and the tenor and substance of the will say statement.

12Expert evidence is a type of opinion evidence which is generally inadmissible unless it meets certain criteria as set out R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9:

• the evidence must be relevant;
• the evidence must be necessary to assist the trier of fact;
• there must be no exclusionary rule otherwise prohibiting the receipt of the evidence; and
• the evidence is given by a properly qualified expert.

13It is unnecessary to address Dr. Zine’s expertise, in light of my finding that her opinion evidence will not be admitted.

14In Persaud v. Toronto District School Board, 2008 HRTO 92, at paragraph 14, the Tribunal explained the application of some of these principles in the context of human rights applications:

As stated above, expert evidence must also be “necessary” to assist the trier of fact. I accept and endorse the comments in the case law that necessity should not be judged by too strict a standard, and that this standard is somewhat lower in a human rights proceedings: see Johnson v. Halifax (Regional Municipality) Police Service [2003] N.S.H.R.B.I.D. No. 2 at paras 92 and 93; Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at para. 36. I also accept and endorse the comments from the Johnson decision that expertise in racism and expertise in discrimination are two different things, and that human rights adjudicators do not necessarily possess expertise in racism, which is a social phenomenon that takes many guises and is studied in many different environments and contexts. At the same time, I need to determine whether the proposed expert evidence is necessary to assist me as the trier of fact, in the sense that it is outside my experience and knowledge.

15I find that Professor Zine intends to testify with respect to aspects and examples of anti-Muslim sentiment post-9/11. Moreover, she proposes to testify with respect to basic concepts and dynamics of racism which can be found in case law, legal articles or literature or the Commission’s own Policy and Guidelines on Racism and Racial Discrimination. All this is within my own sphere of knowledge and is not evidence which is necessary to me as the trier of fact.

16Professor Zine has reviewed the written complaint, the case analysis of the Commission and the submissions by the respondents regarding the case analysis, all of which were prepared as part of the Commission’s process leading to the referral. Professor Zine’s proposed analysis indicates that she has already formed conclusions based on the very issues I must decide. For example, in paragraph 3(c) Professor Zine makes the following finding: “It is clear that through Mr. Bradshaw’s actions, Mr. Yousufi was subject to racial profiling as defined by the Ontario Human Rights Commission as “any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion, or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment.” In doing so, she has taken on the mantle of the trier of fact and strayed outside the proper sphere of opinion evidence.

17For the reasons set out above, I will not allow Professor Zine to provide opinion evidence in this proceeding.