Goodridge v. Toronto Police Services Board, 2009 HRTO 218

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Greg Goodridge

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board, Anthony Piazza and

Maria Perry

Respondents

-and-

Toronto Police Association

Intervenor

interim DECISION

Adjudicator: David A. Wright

Date: February 27, 2009

Citation: 2009 HRTO 218

Indexed as: Goodridge v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Greg Goodridge, Complainant ) On His Own Behalf

Ontario Human Rights Commission ) Christine Elwell, Counsel

Toronto Police Services Board, ) Robert J. Baldwin, Anthony Piazza, and Maria Perry ) Counsel Respondents )

William Blair, Chief of Police, ) Sie-Wing Khow, Toronto Police Service ) Counsel Respondent to Request for Order During ) Proceedings )

Her Majesty the Queen in Right of Ontario as ) Brian Whitehead, Represented by the ) Counsel Ministry of Community Safety and ) Correctional Services, ) Respondent to Request for Order ) During Proceedings ) )

Toronto Police Association, ) David Butt, Proposed Intervenor ) Counsel

INTRODUCTION

1Like Washington v. Toronto Police Services Board, 2009 HRTO 217, released concurrently, this decision deals with a request by the Ontario Human Rights Commission (the “Commission”) and the complainant for records of other complaints made against members of a police service who are respondents in this human rights proceeding. The two personal respondents in this case are not uniform police officers as in Washington, but civilian court officers. These employees of the police service are not subject to the specific disciplinary regime in Part V of the Police Services Act, R.S.O. 1990, c. P.15, as amended (“PSA”). This decision deals with the application of the principles discussed in Washington to the facts of this case, as well as other production requests made by the Commission and complainant for records from the respondents, the Chief of Police (“Chief”), and the Ministry of Community Safety and Correctional Services.

THE COMPLAINTS

2By letter dated June 10, 2008, the Commission referred to the Tribunal, two Complaints made by Mr. Goodridge. The referral was made under s. 33(6) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), as it read prior to June 30, 2008, which provided: “If a person refuses to comply with a request for production of documents or things, the Commission may refer the matter to the Tribunal, or may authorize an employee or member to apply to a justice of the peace for a search warrant under subsection (7)”.

3In the first Complaint, Mr. Goodridge alleges discrimination on the basis of race and colour on the basis that he was assaulted in 2003 by court officers Perry and Piazza and other officers while being transported from the Toronto East Detention Centre (the “Centre”) to court. He also alleges that they called him racist names. The second Complaint alleges that various court officers (not the personal respondents) assaulted him, called him racist epithets, and taunted him about having made complaints to the Commission. The respondents deny the allegations. Mr. Goodridge also makes other allegations of assault that are not contained in the Complaints the Commission referred to the Tribunal.

REQUEST FOR RECORDS OF COMPLAINTS

4The Commission and complainant seek “[t]hose portions of the employment or personnel files of officers Anthony Piazza and Maria [P]erry that relate to any complaints filed against them, including under the Police Services Act, alleging racial, colour and/or ethnic origin discrimination, and that relate to any discipline imposed as a result of any such complaints”. This request was heard in writing, and submissions were made by the complainant, the Commission, the Chief of Police, and the intervenor Toronto Police Association (“TPA”). The respondents adopted the submissions of the Chief on this issue.

5In Washington, I engaged in a detailed discussion of the relevant legal principles and values, and of the probative value and prejudicial effects of such disclosure: see paras. 13-30. I concluded as follows, at paras. 31-33:

I must determine how to balance the conflicting interests when applying the principles of production and similar fact evidence to this case. There are various methods available to the Tribunal to achieve an appropriate balance between obtaining probative evidence and protecting other affected interests: through the extent of disclosure, the procedure for making a production order, and by imposing particular restrictions on the use of the materials if disclosure is ordered.

In light of the nature of the prejudicial effects of large-scale disclosure of records of other complaints, in my view an O’Connor-type procedure is appropriate in the circumstances of this case. Although they are not held by third parties, the privacy interests of potentially a large number of complainants who are not parties to the litigation are engaged, and the principles set out in McNeil favour review by an adjudicator to protect third parties’ interests. For this reason, together with the potential for distraction from the essence of the litigation and the privacy interests of the officers in their employment records given the nature of these allegations made in this case, any records should be reviewed by an adjudicator prior to disclosure to determine whether their probative value could arguably outweigh their prejudicial effects. As with the sensitive therapy records at issue in O’Connor and the medical records which the Tribunal reviewed prior to ordering production in McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13, the circumstances of this production request militate in favour of review by the Tribunal prior to any documents being provided to the requesting party. The Tribunal will consider any submissions the parties may make about how, consistent with the principles in this decision, it should look for potential probative value and balance it against potential prejudice in the circumstances of this case.

If, after review, the Tribunal determines that some records should be produced, it may be appropriate to place additional conditions on the use of the records other than the general requirement that documents produced in litigation may not be used for any other purpose (the implied undertaking rule). The Tribunal will consider any restrictions that the parties request or suggest in any order it makes following review of the records.

These reasons should not be taken to suggest that as a matter of course, the Tribunal will examine records in which one of the parties has a privacy interest before ordering production. Rather, the approach set out here reflects a response to the particular set of conflicting considerations discussed above in light of the allegations in this case and the guidance on the disclosure of police discipline records provided by the Court in McNeil.

6The personal respondents are civilian court officers and not uniform officers. The Police Services Board is their employer and they are not subject to the formal complaint and disciplinary regime contained in Part V of the PSA (see para. 28 of Washington). If complaints are made against them, the Police Service determines how they are dealt with and any discipline is imposed under traditional employment principles, subject to the right of the TPA to file a grievance under the collective agreement between it and the Police Services Board. In my view, this difference in the relationship between the personal respondents and the Police Services Board does not change the analysis. The number of officers whose records are sought is smaller than in Washington. However, given the similar allegations and records sought, in my view the balancing of interests leads to the same result as in that case: the review of the records by the Tribunal to determine what should be disclosed.

7Accordingly, I will order the production to the Tribunal of those portions of the employment or personnel files of officers Anthony Piazza and Maria Perry (now Maria Lyons) that relate to any complaints filed against them, including under the PSA, alleging racial, colour and/or ethnic origin discrimination, and any discipline imposed as a result of any such complaints. The parties may make submissions about: (i) how, consistent with the principles in Washington, it should look for potential probative value and balance it against potential prejudice; and (ii) any restrictions that the Tribunal should place on the use of any records it orders disclosed.

OTHER PRODUCTION REQUESTS

8The Commission seeks, from the Chief of Police, the names and badge numbers of all TPS officers on duty at the Centre on the morning of March 31, 2003 and on duty at 1000 Finch Avenue West on January 10, 2005. This information is arguably relevant and shall be produced by the Chief.

9The Commission seeks production from the Ministry of Community Safety and Correctional Services (the “Ministry”) of the photograph taken of Mr. Goodridge at the Centre on March 31, 2003. The Ministry is not opposed, but seeks an order that the storage, electronic storage and transmission, publication or dissemination of any such material beyond the parties to this proceeding and outside the Tribunal matter be prohibited. The Commission is not opposed to this restriction. The Tribunal will make the requested order, with appropriate restrictions.

10The Commission also seeks from the Ministry the names and badge numbers of the correctional officers on duty in the Admission and Discharge area of the Centre on the morning of March 31, 2003. In its request, it states:

Mr. Goodridge has done his best to recall badge numbers but, under the circumstances, it is understandable if he might have mixed up a number or two. Having the names and badge number of the officers on duty during these specific times will clarify whether his recollection is correct and will facilitate our interviewing them as potential witnesses.

11The Ministry is willing to provide badge numbers, but objects to providing names for the following reasons:

With respect to paragraph 6, please be advised that we have several concerns. There is a general security concern with members of the public getting access to the first and last names and badge numbers of correctional officers in ministry institutions. We cannot control who may later gain access to such information and this could potentially pose a threat to correctional officers.

In its reply, the Commission confirms that it still seeks the names.

12The Commission has given no reason why it cannot contact the correctional officers at their workplace to request an interview using badge numbers. Accordingly, in light of the security concerns outlined by the Ministry, an order for names is not justified at this stage in the proceedings. Should the names become necessary at a later stage in the proceedings, the Tribunal will consider a further request.

ORDER

13The Tribunal orders as follows:

(1) Within two weeks of the date of this Interim Decision, the Chief shall produce to the Tribunal those portions of the employment or personnel files of officers Anthony Piazza and Maria Perry (now Maria Lyons) that relate to any complaints filed against them, including under the Police Services Act, alleging racial, colour and/or ethnic origin discrimination, and any discipline imposed as a result of any such complaints.

(2) By the same date, the parties may make any submissions about: (i) how the Tribunal should look for potential probative value and balance it against potential prejudice; and (ii) any restrictions that the Tribunal should place on the use of any records it orders disclosed.

(3) Within two weeks of the date of this Interim Decision, the Chief shall produce to the Commission and complainant the names and badge numbers of all TPS officers on duty at the Centre on the morning of March 31, 2003 and on duty at 1000 Finch Avenue West on January 10, 2005.

(4) Within two weeks of the date of this Interim Decision, the Ministry shall disclose to the Commission and complainant the badge numbers of the correctional officers on duty in the Admission and Discharge area of the Toronto East Detention Centre on the morning of March 31, 2003 and the photograph of Mr. Goodridge taken on that date. No one in possession of these materials shall disclose them to anyone other than the parties to this proceeding or their legal counsel or publish it in any manner. As with any materials produced in a Tribunal proceeding, they may not be used for any purpose other than this litigation.