HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bright (Zeguo) Qiu
Applicant
-and-
Gail Neilson and Douglas Moore
Respondents
A N D B E T W E E N:
Bright (Zeguo) Qiu
Applicant
-and-
The Regional Municipality of York Police Services Board, Matthew Ma and Reynaldo Corpuz
Respondents
DECISION
Adjudicator: Mark Hart
Indexed as: Qiu v. Neilson
APPEARANCES BY
Bright (Zeguo) Qiu, Applicant ) On his own behalf
Gail Neilson, Respondent ) Not appearing
Douglas Moore, Respondent ) On his own behalf
The Regional Municipality of York Police ) Services Board, Matthew Ma and ) Sharon Duffy, Counsel Reynaldo Corpuz, Respondents ) )
1These are two Applications made under s. 53(5) of the Ontario Human Rights Code, both dated January 6, 2009. The underlying complaints were filed with the Ontario Human Rights Commission (the “Commission”) on May 25, 2006.
2The Application against the personal respondents Gail Neilson and Douglas Moore relates to the applicant’s brief period of employment in December 2005 as a courier with a company called Up Front Courier (the “Employment Application”). The applicant, who self-identifies as a Chinese immigrant, alleges that he experienced discrimination because of his race and ethnic origin during his employment, which culminated in an incident that occurred on December 23, 2005.
3The Application against the Regional Municipality of York Police Services Board and two of its officers relates to the incident that occurred on December 23, 2005, and alleges discrimination in respect of services because of the applicant’s race and ethnic origin (the “Police Application”).
4A hearing in this matter was held on October 20, 2009, to address two preliminary issues: (1) a request for dismissal of the Police Application pursuant to s. 45.1 of the Code on the basis that the substance of this application already had been appropriately dealt with through a proceeding under the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”) as it existed at the relevant time; and (2) a request for dismissal of the Employment Application because of delay.
5In addition, subsequent to the preliminary hearing, the applicant wrote to the Tribunal to request that an additional respondent be added to the Employment Application, and this decision also will address that request.
The Police Application
Background
6On December 23, 2005, the police were contacted by representatives of the applicant’s then-employer to attend at the parking lot in front of the employer’s premises to deal with a dispute between the applicant and his then-employer relating to unpaid wages owing to the applicant and certain customer packages that were in the applicant’s possession in his personal vehicle.
7The personal respondent Reynaldo Corpuz was the first officer to arrive at the scene. The applicant’s vehicle had been boxed in by other vehicles in order to prevent him from leaving the parking lot with the packages. The applicant’s complaint alleges that Constable Corpuz ignored his pleas for help, punched him, pushed him to the ground, beat him on his back, and handcuffed him. While the police respondents agree that the applicant was handcuffed following a struggle during which the applicant fell to the ground, they state that this was incident to his arrest for causing a disturbance and the applicant’s resistance and deny that he was ignored, punched or beaten.
8The personal respondent Constable Ma was the second officer on the scene, and arrived while the applicant was on the ground. The applicant alleges that Constables Corpuz and Ma composed a fake plot, trickery and coercion to secure a confession from him, that Constable Ma failed to give him proper information about the charges laid against him, and that Constable Corpuz made faces at him, imitated the way he spoke and laughed him while in the police station lobby. These allegations are denied by the police respondents.
The PSA Complaint
9By letter dated January 6, 2006, the applicant filed a detailed complaint with the Ontario Civilian Commission on Police Services (“OCCPS”), which was forward to York Regional Police Services (“YRPS”) in accordance with the provisions of the PSA. The applicant subsequently filed further detailed materials with the YRPS, including supplemental statements, photographs, diagrams, witness statements and supporting documents.
10The complaint was assigned for investigation, and responding statements were requested from Constables Corpuz and Ma. The investigator also collected relevant documents and conducted interviews with other individuals who were involved in or had witnessed the incident. On July 17, 2006, the investigator met with the applicant and his legal counsel to review the investigation and the officer responses. On August 21, 2006, the investigator released his report which reviewed the applicant’s allegations, the responses from the officers, and the evidence obtained from witnesses and relevant documents. The investigator concluded that there was insufficient evidence to substantiate the applicant’s complaint.
11By letter dated September 25, 2006, legal counsel for the applicant requested a review of the investigator’s findings by OCCPS and requested that the matter be referred for a hearing, and provided detailed submissions in support of the request. As part of the review procedure, the YRPS forwarded to OCCPS its investigation file, including all of the material that had been submitted by the applicant, the officers’ responses and their memo book notes, witness statements, relevant documents, and complaint log.
12By letter dated March 27, 2007, OCCPS notified the applicant through his counsel that it had completed its review, and was satisfied that the investigation conducted by the YRPS was thorough and addressed all salient allegations and did not disclose any potential breaches of conduct on the part of the officers involved. As a result, OCCPS confirmed the investigator’s decision and found that there were not sufficient grounds to warrant further action.
The Police Complaint Process
13Pursuant to Part V of the PSA, as it then existed, any member of the public can make a complaint about the conduct of a police officer: s.56(1). Subject to certain limited exceptions, the chief of police is required to cause every complaint about the conduct of a police officer to be investigated and the investigation reported in a written report: s.64(1). If, at the conclusion of the investigation and upon review of the written report, the chief of police is of the opinion that the complaint is unsubstantiated, then no action is to be taken in response to the complaint and the complainant is to be so notified and advised of the right to ask OCCPS to review this decision: s.64(6). Alternatively, if the chief of police is of the opinion that the police officer’s conduct may constitute misconduct or unsatisfactory work performance, then a hearing is required to be held: s.64(7). This hearing is required to be conducted in accordance with the Statutory Powers Procedure Act: s.69(1).
14If a complainant is notified that his or her complaint is unsubstantiated, the complainant has the right to ask OCCPS to review this decision: s.72(5). The OCCPS is an independent statutory agency with broad powers to oversee and review police services in the province, and with specific responsibility to conduct reviews at the request of a complainant to a finding that a complaint is unsubstantiated: s.22(e.1). Members of the OCCPS are appointed by the Lieutenant Governor in Council: s.21(2).
15Upon a complainant’s request, OCCPS is required to review the decision that the complaint was unsubstantiated, taking into account any material provided by the complainant and the police, but is not required to hold a hearing: s.72(7). Upon completion of its review, OCCPS may confirm the decision, may direct the police to process the complaint as it specifies, or may assign the review or investigation of the complaint or the conduct of a hearing to another police service: s.72(8). The decision by OCCPS is final and binding and there is no appeal from that decision: s.72(12).
16The standard to be applied by a chief of police and OCCPS in determining whether a hearing into a complaint of police misconduct was the subject of the decision by the Ontario Court of Appeal in Canadian Civil Liberties Assn. v. Ontario Civilian Commission on Police Services, 2002 CanLII 45090 (ON CA), 61 O.R. (3d) 649. Justice Weiler held that if one of the permissible inferences to be drawn from all of the circumstances surrounding the complaint is that misconduct has occurred, then the statutory requirement has been met and a hearing must be held (para. 67). While the complaint must contain more than a “self-serving bald allegation”, there need only be a “reasonable basis or an ‘air of reality’ to the evidence before proceeding to the next stage (para. 67). Further, in deciding whether a hearing should be held, the evidence is not to weighed as it would be by the trier of fact. The exercise is to determine whether misconduct may have been committed, not whether it has been committed (para. 70).
17“Misconduct” is defined in s. 74 of the PSA to include the commission of an offence described in a prescribed code of conduct: s.74(1)(a). This code of conduct was prescribed by O.Reg. 123/98, and includes a failure
to treat or protect a person equally without discrimination with respect to police services because of that person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status, family status or handicap.
Section 45.1 of the Code
18Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
19As a result, the issue for this Tribunal is whether the police investigator’s report as reviewed and upheld by the OCCPS has appropriately dealt with the substance of all or part of the Police Application, such that all or part of that Application should be dismissed.
20In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application.
21With regard to the second issue, this Tribunal cited the jurisprudence of the B.C. Human Rights Tribunal holding that it will consider whether the application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was in pith or essence substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding: Villella v. City of Vancouver and others (No. 3), 2005 BCHRT 405, 2005 B.C.H.R.T. 405 at paras. 14 to 19; Rush v. City of Richmond, 2008 BCHRT 62 at paras. 52, 55.
Was there another “proceeding”?
22As the applicant was not represented by counsel in this matter, I asked counsel for the respondents to the Police Application to address certain decisions that had considered whether an investigation can constitute a “proceeding” within the meaning of s. 45.1 of the Code or its equivalent in other human rights legislation.
23In Sutton v. Jarvis Ryan Associates, 2009 HRTO 1072, this Tribunal stated:
I am not satisfied that a criminal investigation constitutes a “proceeding” within the meaning of section 45.1 of the Code. Also, as noted in Martinez v. Peel Police Services Board, 2008 HRTO 434, 2008 HRTO 434, although a criminal process may involve the same parties and events, there is no indication that the criminal process will address the human rights issues and or provide human rights remedies.
24Counsel for the Police Application respondents submitted that the investigation of a potential criminal offence, as addressed in the Sutton decision, is distinguishable from the investigation of a public complaint under the PSA, particularly where a complaint of police misconduct requires the investigation to address whether the police officer had violated the complainant’s Code rights as incorporated into the Code of Conduct by regulation. Further, counsel submitted that the process at issue in this case did not merely involve an investigation, but included an independent review by the OCCPS where the applicant had disclosure of the police investigation materials and made detailed submissions through counsel.
25I also asked counsel to address the decision of the B.C. Human Rights Tribunal in Peacock v. Pacific Equine Clinic and Marino, 2008 BCHRT 362. In that case, the complainant alleged that she had suffered harassment. Her allegations were investigated by the B.C. Gaming Policy Enforcement Branch, and ultimately dismissed except for one allegation. However, the investigator who was appointed considered the alleged harasser’s conduct solely on basis of whether conduct had undermined the “integrity of industry” and did not assess whether the alleged harasser had violated the B.C. Human Rights Code.
26It is unclear from the Peacock case whether or not the complainant had the right to have the investigation reviewed by any independent body. However, even without such right of review, the B.C. Human Rights Tribunal did not go so far as to say that an investigation could never constitute a “proceeding”. Rather, the Tribunal stated that based on the information provided, it was unable to conclude that the investigation constituted a “proceeding”: see para. 63. Further, the Tribunal went on to state that even if it had found that the investigation constituted a “proceeding”, it would have found that the process did not appropriately deal with the substance of the allegations of a violation of the B.C. Human Rights Code: para 63. In other words, the issue of whether an investigation can constitute a “proceeding” was left open by the Peacock decision.
27Finally, I asked counsel to address the definition of “proceeding” in s. 1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”). In that legislation, a “proceeding” is defined to mean “a proceeding to which this Act applies”. Pursuant to s. 3 of the SPPA, that Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision where the Tribunal is required to hold or afford the parties an opportunity for a hearing before making a decision. In the instant case, because neither the police nor the OCCPS is required to hold a hearing before making a decision to find a complaint under the PSA to be unsubstantiated, the process leading to such a decision would not constitute a “proceeding” to which the SPPA applies.
28Counsel submits that the SPPA definition of “proceeding” is particular to that legislation, and does not govern the interpretation of the term “proceeding” within the meaning of s. 45.1 of the Code. I agree. In my view, it is clear from the definition of “proceeding” in s. 1 of the SPPA that it is particular to that legislation, as it is defined somewhat circularly as “a proceeding to which this Act applies” and this definition is thereby confined to that specific piece of legislation.
29In the particular circumstances of this case, I am persuaded that the process undertaken pursuant to the PSA, including the independent review by the OCCPS, does constitute a “proceeding” within the meaning of s. 45.1 of the Code. If a hearing were held at the direction of the OCCPS pursuant to s.72(8) of the PSA, there would be no question that this would be considered a “proceeding” within the meaning of s. 45.1. This would be true even if, as a result of the hearing, the complaint was found to be unsubstantiated. In this regard, I note that the question of whether the subject-matter of a Tribunal application was “appropriately dealt with” as a consequence of the hearing, particularly in light of the requirement for “clear and convincing evidence” of misconduct, is a separate issue from whether the hearing process itself is a “proceeding”.
30Given the very low threshold for being entitled to a hearing under the PSA, which requires only that there be a reasonable basis or an “air of reality” to the allegation of misconduct, in my view it would be anomalous for a complaint under the PSA that met this low threshold but then was found to be unsubstantiated at a hearing to be considered to have been the subject of a “proceeding” within the meaning of s. 45.1 of the Code, while a complaint which did not even support a reasonable basis or “air of reality” to the allegations and thus was dismissed without a hearing would not.
31Accordingly, in the particular circumstances of this case, I find that the police investigation of the applicant’s complaint of police misconduct under the PSA and the subsequent review by the OCCPS does constitute a “proceeding” within the meaning of s. 45.1 of the Code. In making this finding, I have considered and relied upon the following factors: that the applicant fully participated in the police investigation process and provided detailed and voluminous materials in support of his complaint; that the results of the witness interviews were shared with the applicant and he was given an opportunity to respond to them; that the applicant sought review of the determination made by the Chief of Police by the OCCPS; that the applicant was represented by counsel and made detailed submissions to the OCCPS in response to the police report of the investigation; that the complete investigation file compiled by the York Regional Police was forwarded to the OCCPS for an independent review; that an independent review of the applicant’s complaint was conducted by a panel of the OCCPS prior to its decision to uphold the findings of the police investigation; and that the OCCPS is an independent statutory agency with members appointed by Cabinet. I am not suggesting that all of these factors would need to be present in order for an investigation of a public complaint under the PSA to be found to be a “proceeding” within the meaning of s. 45.1 of the Code, but am merely stating that these are the factors that have persuaded me to find that there was a “proceeding” in the particular circumstances of this case.
32I also note, before leaving this aspect of the issue, that the PSA was amended effective October 19, 2009, including significant changes to the process for dealing with public complaints and the creation of the Independent Police Review Director with significant powers in relation to the handling of such complaints. I leave for another day whether the new processes under the amended PSA constitute a “proceeding” under the Code, and nothing in this decision is intended to affect that determination one way or another.
Was the subject-matter of the Police Application appropriately dealt with?
33As stated above, the issue on the second part of the test under s. 45.1 of the Code is whether the application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was in pith or essence substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding.
34In this case, there is no question that the subject-matter of the Police Application arises from the same facts that provided the basis for the complaint and investigation under the PSA. The PSA complaint filed by the applicant also arises out of and relates to the incident on December 23, 2005.
35The next question is whether the substance of the issues was in pith or essence essentially the same. In my view, they are. The applicant raised the same issues as raised in the human rights complaint filed with the Commission, namely that Constable Corpuz punched, beat and hurt him during the course of the incident, that he fabricated a fake plot against the applicant, that he induced and forced the applicant to make a confession, that he filed unwarranted charges against the applicant, and that he insulted the applicant and did him wrong. The statement filed by the applicant in support of his complaint includes the allegation that while at the police station, Constable Corpuz made faces at him, imitated the way the applicant was speaking, and laughed at the applicant. In the materials filed with the police in support of his complaint, the applicant also raises the fact that he is an immigrant from China. This fact is also raised in the submissions filed with the OCCPS in support of its review of the police investigation.
36There is no question that, in the material filed in support of the PSA complaint, the applicant does not expressly assert his rights under the Code, nor does he expressly allege that he experienced discrimination because of his ethnic origin or race. Nonetheless, in my view, the factual underpinnings of the allegations raised in the PSA complaint are the same as those for the allegations raised in the human rights complaint. For example, in the PSA complaint, the applicant alleges that he was punched, beaten and hurt by Constable Corpuz in the course of the December 23, 2005 incident. I accept the submission by counsel for the Police Application respondents that in order to determine whether Constable Corpuz engaged in misconduct, the police investigation necessarily would have to consider whether Constable Corpuz engaged in discrimination contrary to the Code as this forms part of the regulatory Code of Conduct. However, the police investigation would consider even broader matters than that, such as whether Constable Corpuz used excessive force in dealing with the applicant and making the arrest, whether or not such conduct was related to a prohibited ground of discrimination. In contrast, under the Code, it is not sufficient for the applicant merely to prove that excessive force was used. He also would have to prove that such conduct was related to his race or ethnic origin.
37As a result, the factual findings made through the police investigation and upheld on review by the OCCPS not only are dispositive of the PSA complaint, but also are dispositive of the issues raised in the human rights complaint, as they deprive the applicant of the necessary factual underpinning required as a first step in supporting his allegations of a violation of the Code. The police investigation found that Constable Corpuz was justified in using the force that he did in the circumstances where the applicant was found to have actively resisted his orders, and used techniques that are taught to police officers in order to control an actively resistant or assaultive subject. In my view, this factual finding disposes of the allegation in the human rights complaint that Constable Corpuz discriminated against the applicant by punching him, pushing him to the ground, beating him on his back, and arresting him, as the factual underpinning for that allegation was not established.
38Similarly, the police investigation addressed the allegation that Constable Corpuz fabricated a fake plot against the applicant and forced the applicant to make a confession. The police investigation found that Constable Corpuz had reasonable and probable grounds to lay the charges against the applicant, which disposes of the allegation that the officers fabricated a plot against the applicant and filed unwarranted charges. The investigation also found that the applicant was not forced to make any confession, as no cautioned statement was taken from him. The investigation report also sets out Constable Corpuz’s statement that he did not make faces at the applicant while they were at the police station. I find that it is implicit in the report’s finding that Constable Corpuz did not engage in misconduct that the investigator accepted this evidence, as making faces at the applicant in the manner alleged clearly would constitute misconduct.
39As a result, given that the factual underpinnings of the allegations in the human rights complaint are the same as the allegations raised in the PSA complaint and that these factual underpinnings form an initial and necessary component of establishing the alleged violations of the Code, I find that in pith and essence the substantive issues are the same.
40This leaves the question of whether the allegations raised in the human rights complaint were “appropriately dealt with”. This question does not require me to make a finding as to whether or not I agree with the findings of the police investigation and OCCPS review. Rather, the question for me is whether the police investigation and OCCPS review were conducted using a fair process in which the applicant was afforded an opportunity to present his allegations and supporting evidence and where there is nothing on the face of the police investigation report or OCCPS review to indicate that these bodies failed to recognize human rights principles in reaching the determinations that they did.
41I find that the police investigation and OCCPS review were conducted using a fair process, and that the applicant was afforded an opportunity to present his allegations and supporting evidence. As indicated above, the applicant filed voluminous and detailed material in support of his PSA complaint. He was notified of the evidence of witnesses interviewed as part of the investigation, and provided material in response. He had the opportunity to have the police investigation reviewed by the OCCPS, and exercised his right to do so. During the course of the police investigation and for the OCCPS review, the applicant was represented by legal counsel. Legal counsel made detailed submissions to the OCCPS as part of the review process, in order to challenge the investigator’s findings. A panel of the OCCPS received and reviewed the full investigation file and considered the applicant’s submissions, and made a determination as an independent body to uphold the findings of the police investigation.
42I further find that there is nothing to indicate that either the police investigation or the OCCPS review failed to recognize human rights principles in reaching the determinations that they did. The determinations made by the police investigation and by the OCCPS were factual in nature, and were made with due consideration of the evidence before them. While I appreciate that there are aspects of the factual findings and the evidence relied upon with which the applicant takes issue, there is no indication that the police investigation or the OCCPS review failed to consider the applicant’s submissions. As a result, I find that the substance of the Police Application was appropriately dealt with by the proceeding under the PSA, within the meaning of s. 45.1 of the Code.
43Before leaving this point, I will address one final issue. During the police investigation, the applicant had sought access to the tape of his 911 calls. This tape was not obtained by the applicant until after the conclusion of the OCCPS review, and so he did not have access to the tape for the purpose of making submissions either to the police investigator or to the OCCPS. The investigator’s report does reference the 911 recording, and states that it is very hard to decipher, but the applicant is heard screaming “your police beat me” and Constable Corpuz is heard telling the applicant to “put down the phone, this is the police, easy”. Submissions by applicant’s counsel about the fact that the 911 recording was not provided and in relation to the comments from the tape disclosed in the report were made as part of the OCCPS review.
44The applicant takes the position that the 911 recording as now disclosed to him constitutes fresh evidence which should entitle him to have his allegations heard before this Tribunal. I do not agree. I have listened carefully to the 911 recording, and I concur with the finding of the police investigator that it is very hard to decipher. I can hear the applicant crying and saying “your police beat me” at least twice. I also can hear what I believe to be the applicant saying “easy” several times. I cannot make out much of what, if anything, Constable Corpuz is saying and do not hear him say “put down the phone, this is the police, easy”, although he may have said this. I can make out what I believe to be Constable Corpuz saying, “I have the right to use force”, and the applicant responding, “Not like this”.
45In my view, the 911 recording does not materially affect the evidence that is included in the investigation report. Constable Corpuz is asserting his right to use force, which was addressed in the report. The applicant states that he can’t use force “like this”, with is consistent with his statement on the tape that he was being beaten and is consistent with the allegations raised in his PSA complaint. There is nothing about the 911 recording which materially alters the evidence that was already known to the applicant or materially affected his ability to present his case as part of the police investigation and to make submissions in support of the OCCPS review.
46Accordingly, for all of these reasons, the Police Application is dismissed.
The Employment Application
47The respondents to the Employment Application have requested that this Application be dismissed for delay. While the personal respondent Gail Neilson was provided with notice of the preliminary hearing, she did not attend to make oral submissions in support of her request. However, the personal respondent Douglas Moore was in attendance and did make submissions.
48For the reasons set out in my decision in Boncori v. TRW Canada Limited, 2009 HRTO 564, it is my view that the one-year time limit for the filing of an application set out in section 34 of the Code needs to be interpreted in the context of the transition provisions. My view is that the one-year period runs from the last incident of alleged discrimination until the date that the underlying complaint was filed with the Commission.
49The last incident of discrimination alleged in the human rights complaint filed against the respondents to the Employment Application occurred on December 23, 2005. The complaint itself was filed on May 25, 2006, which is well within the one-year period.
50While the personal respondent Douglas Moore states that he was no longer working for Up Front Courier by the time the applicant’s human rights complaint was filed, he does recall receiving notice of this complaint at his home. However, he states that no further steps were taken by the Commission to proceed with this complaint, and he had no further contact by the Commission.
51Mr. Moore submits that the passage of time from when the underlying events occurred in late December 2005 until when the Employment Application was filed with the Tribunal on January 6, 2009, is a period of a little over three years. Mr. Moore submits that to proceed with the Application in these circumstances would be an abuse of process.
52There is no doubt that in cases of excessive delay, the Tribunal does have the ability to dismiss an application as an abuse of process even if the application does not fall afoul of the one-year time period set out in s. 34 of the Code. However, in order for the Tribunal to find that delay has been so excessive as to amount to an abuse of process, the respondent at least would need to demonstrate some substantial prejudice caused by the delay. While I appreciate that memories may have faded since the time of the events at issue, I have not been provided with evidence to demonstrate the kind of substantial prejudice that would be required to find an abuse of process nor is the time period from the events at issue so excessive that in and of itself this should give rise to a finding of substantial prejudice. Further, I note that both respondents were interviewed as part of the police investigation and have access to their statements in order to refresh their memories, and both had prior notice of the human rights complaint and could have taken steps at that time to obtain and/or preserve relevant evidence.
53As a result, I am not prepared to dismiss the Employment Application for delay.
Applicant’s request to add a new respondent
54On November 18, 2009, the applicant wrote to the Tribunal to request that a new respondent, Tara Gorry, be added to the Employment Application. Ms. Gorry was employed by Up Front Courier at the relevant time, and made the initial call to the police on December 23, 2005. Ms. Gorry also was interviewed as part of the police investigation.
55The grounds upon which the applicant’s request is made are that there was no basis for Ms. Gorry to have called the police and that she perjured herself during the police interview.
56Whether or not Ms. Gorry told the truth when interviewed by the police is not a sufficient basis upon which to add her as a respondent before this Tribunal. The applicant has not provided any basis to link the alleged untrue statements that Ms. Gorry may have made to the police to the grounds of discrimination raised in his human rights complaint.
57With regard to the 911 call, Ms. Gorry’s statement to the police is clear that she was instructed to make this call by the personal respondent Gail Neilson, who was Ms. Gorry’s superior. This does not provide any basis upon which to add Ms. Gorry as a respondent.
58Accordingly, the applicant’s request to add Tara Gorry as an additional respondent is denied.
Order
59For all of these reasons, I make the following order:
a) Application TR-0039-09 against the Regional Municipality of York Police Services Board, Matthew Ma and Reynaldo Corpuz is dismissed pursuant to s. 45.1 of the Code;
b) The respondents’ request for Application TR-0038-09 to be dismissed for delay is denied;
c) The applicant’s request to add Tara Gorry as an additional respondent is denied;
d) Within 10 days of the date of this Interim Decision, the parties to Application TR-0038-09 shall provide all of their availability in March, April and May 2010 for a one-day hearing, failing which a hearing date will be set without further consultation.
Dated at Toronto, this 16th day of December, 2009.
“Signed by”
Mark Hart
Vice-chair