HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Garry McKay
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Toronto Police Services Board and Christopher Fitkin
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: McKay v. Toronto Police Services Board
WRITTEN SUBMISSIONS
Garry McKay, Complainant ) Kimberly R. Murray and ) Mandy Eason, Counsel
Toronto Police Services Board and ) Christopher Fitkin, Respondents ) Glenn Chu, Counsel
Ontario Human Rights Commission ) Bay Ryley, Counsel
INTRODUCTION
1This Interim Decision deals with the respondents’ Request for Particulars with respect to this complaint.
BACKGROUND
2The complaint alleges discrimination in policing services on the basis race, colour, ancestry and ethnic origin contrary to section 1 and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint stems from an incident on July 9, 2003 when the complainant, an Aboriginal man, was investigated and detained by the personal respondent, a police officer.
3The Ontario Human Rights Commission (the “Commission”) and the complainant filed their Hearing Briefs, which included their statement of facts and remedies, on October 17, 2008 and October 23, 2008 respectively. The Commission’s statement of facts consists of twenty paragraphs narrating the alleged sequence of events of July 9, 2003. The complainant adopted the Commission’s Statement of Facts.
4The respondents filed their Hearing Brief on November 24, 2008 asserting that, by failing to demonstrate a nexus between the alleged facts and a violation of the Code, the Commission and complainant failed to make out a prima facie case of discrimination. In their Replies the complainant and Commission emphasized their position that the sequence of events narrated in the statement of facts demonstrates racial profiling because “the complainant’s race was a factor in the way he was treated by the personal respondent.”
REQUEST FOR PARTICULARS
5A pre-hearing conference call was held on December 5, 2008. On this call, the respondents asserted that the particulars provided by the Commission in its Hearing Brief were inadequate and requested that the Commission and complainant provide “a complete and exhaustive recital of the ways in which it is alleged the respondents have violated the Code.”
6The Tribunal established a timeline for exchange of written submissions and legal authorities regarding the respondents’ Request for Particulars. Parties filed written submissions and authorities in accordance with that timeline, and subsequently, in response to the Tribunal’s inquiry, all parties confirmed that an opportunity for further oral submissions was not necessary.
7The respondents seek an order requiring the Commission and complainant to provide:
(a) A complete and exhaustive list of all of the categories of conduct or means by which the personal respondent is alleged to have violated the Human Rights Code (…) and then, under each category of conduct or means, a complete and exhaustive list of the specific material facts which are relied upon and particulars as to how those facts show a violation of the Code; and
(b) Confirmation that only allegation of violation of the Code as against the Toronto Police Services Board (the “Board”) is as the alleged employer of Officer Fitkin.
8In its responding submissions, the Commission has confirmed that the only Code violation alleged against the respondent Toronto Police Services Board is “on the basis that it is liable for the actions of police officers carried out in the course of employment.” As such, item (b) of the respondents’ Request for Particulars appears to no longer be in issue and will not be addressed in this Interim Decision.
POSITION OF THE PARTIES
9The respondents argue that the statement of facts contained in the Commission’s Hearing Brief (and as adopted by the complainant) is deficient because it fails to specify what elements of the allegations constitute the discriminatory conduct. The respondents highlighted six examples from the Commission’s statement of facts (paragraphs 11, 12, 14, 15, 16, & 18) where the respondents allege it is unclear whether or not the Commission advances those statements in the narrative as part of the alleged racial discrimination or merely narrative background. The respondents submit that “[i]t is the responsibility of the Commission and the complainant to particularize the allegedly discriminatory treatment and to do so exhaustively, and to explain how the complainant’s race was an improper factor in that alleged discriminatory treatment.”
10The respondents maintain that they should not have to guess from the Commission’s statement of facts what aspects of the July 9, 2003 incident are alleged to be discriminatory and why. The respondents rely on the decisions in Neusch v. Ontario (Ministry of Transportation), [2002] O.H.R.B.I.D. No. 11 “Neusch”; Kaminski v. Pilkington Glass, 2003 HRTO 2 “Kaminski”; Garrelhas v. ICE Consultants Inc., 2005 HRTO 51 “Garrelhas”; and Persaud v. Toronto District School Board et al. (No. 2), 2008 HRTO 12 “Persaud”, in support of their position that they are entitled to particularization of the specific parts of the alleged interaction that are at issue and a detailed explanation about how race was a factor in the alleged mistreatment.
11The Commission and the complainant submit that their statement of facts is sufficiently particularized so that the respondents have clear notice of the case they have to meet and additional particulars are unnecessary. The Commission contends that the authorities cited by the respondents are distinguishable. The Commission submits that in those cases the defect in particulars arose because those cases involved various disputed incidents, parties and periods of time, however the pleadings contained only partial lists and examples. In contrast, the Commission contends that the present case is about “one incident on one evening”, which, at its core, is a case about alleged racial profiling.
12In its responding submissions, the Commission also provided the following four points to assist in clarifying how the personal respondent engaged in the alleged discrimination and racial profiling:
Initially stopped the complainant (apparently under the pretext of a ‘crime management strategy’);
Subjected the complainant to a high level of scrutiny over his possession of a bike that was in ‘pristine’ condition;
Was overly suspicious of the complainant and wrongfully arrested him although there was no reliable evidence the bike had been stolen; and
Told the complainant that if he did not produce a bill of sale within 24 hours he would be rearrested.
13The complainant, in support of the Commission, takes the position that the particulars provided in the statement of facts and Responses are sufficient and proper given the nature of the allegations of racial profiling. The complainant submits that the adequacy of particulars must be considered in the context of the various legal authorities that have recognized that racial profiling is “rarely proven by direct evidence” and “as such, inferences must be drawn from the circumstantial evidence”, see for example R. v. Brown (2003), 2003 CanLII 26403 (ON CA), 65 O.R. (3d) 161 (C.A.).
DECISION
14The Tribunal’s Rules of Practice (January 31, 2008) require parties to serve and file, in advance of the oral hearing, Hearing Briefs, which must include a detailed statement of all facts and remedies which the parties intend to rely and claim (Rules 57 – 67). Rule 14(h) provides that the Tribunal may require a party to produce any “information” in order to facilitate the fair, just and expeditious resolution of the merits of a complaint. This power to order production of information is supported by section 5.4(1)(d) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, as amended, which states that, at any stage of the proceeding, a tribunal may order “the provision of particulars”.
15The object of these rules is to afford all parties an opportunity to state and frame their case and an opportunity to know and respond to the other side’s case so as to promote a fair, just and expeditious hearing process as mandated by section 40 of the Code. Human rights tribunals have recognized that the purpose of particulars is to define the issues, prevent surprise, to enable the parties to prepare for litigation and to facilitate the hearing process, see Neusch, supra, citing Fairbairn v. Sage (1925), 56 (O.L.R.) 462 (C.A.). The exchange of full particulars as early as possible in the litigation process is critical to avoid surprises and potential prejudice through the introduction of new facts or issues at the hearing.
16Numerous human rights cases have established that parties’ pleadings must identify “material facts”. The Tribunal in Garrelhas, supra, explained at para. 21:
The Commission has an obligation to plead all of the material facts upon which it intends to rely. Generally speaking this should include particulars of the dates when, the places where, and the persons who, engaged in the allegedly improper actions or behaviour.
17This is not a situation in which the “material facts”, as described in Garrelhas to be generally the ‘who, what, when and where’, are missing from the pleadings. Based on the parties’ materials, it appears that the parties are in agreement about the identity of the individuals, location and time of the incident and even, to some extent, what took place. Rather, the present case is more akin to the circumstances as observed in Persaud, supra, where there was an absence of particularity regarding the specific nature of the alleged contravention of the Code.
18In addressing adequacy of particulars, the Tribunal in Persaud, supra at paras. 15 – 18, determined that the respondents were entitled to know the precise aspects of the Commission’s and the complainant’s concerns that were being pursued as allegations of Code violations. The Tribunal noted the general references in the Commission’s pleadings to certain comments and conduct that did not provide sufficient clarity for the respondents to know if those concerns were being specifically relied upon in support of an alleged violation upon which the Tribunal was being asked to rule.
19I find the Commission’s statement of facts in the present case, as was the situation in Persaud, lacking in sufficient particularity regarding the precise nature of the impugned conduct in dispute. As stated by the Board of Inquiry in Neusch, supra at para. 53, the purpose of the complaint and its accompanying pleading is to “inform a respondent of the particular issues toward which proof must be directed”. Particulars can be more than simply facts and may constitute details, explanations, clarifications of matters, and also may include legal points: see Neusch, supra, and Kaminski, supra. Importantly, particulars alert parties and the Tribunal as to what alleged facts and legal issues give rise to a breach of the Code, so that parties and the Tribunal proceed into the hearing aware of what needs to be proved or rebutted.
20I understand the complainant’s position that the proper degree of particularization must be assessed in the context of the nature of the case. The complainant emphasizes that allegations in this case are put forth as racial profiling, a phenomenon which the complainant alleges is “a form of stereotyping based on preconceived ideas about a person’s character”, and therefore “attention must be paid to the circumstances in their entirety”. The Commission defines racial profiling as:
(…) any action taken 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.
I appreciate that the Commission’s statement of fact must be read with this theory of the case in mind. However, prior to its Response submissions, the Commission had not identified which facets of the incident allegedly constituted “stereotyping”, lack of “reasonable suspicion” and/or targeting. The Commission’s statement of fact had merely narrated the events of July 9, 2003 incident. As such, I find that greater specificity is necessary in order to ensure the respondents are informed about what issues require proof. To be clear, I am not directing the Commission and the complainant to catalogue discrete facts or dissect the alleged incident; however, I am directing the Commission and the complainant to identify what indicia of racial profiling they will be relying on to allege an infringement of the Code.
21While the respondents have been apprised of the material facts, and to some extent are in agreement about those general facts, the respondents are unaware of the extent of the case with respect to the allegations of racial profiling that will need to be met. The Commission and the complaint should be able specify, from their perspective, what elements of the impugned incident and alleged consequences of the incident that they claim manifested as racial discrimination and/or racial profiling.
22The Commission and complainant are directed to identify what elements of the narrative set out in their statement of facts are being relied upon as indicators of racial profiling which they assert are part of the Code contravention. If no other elements of the narrative will be relied upon in asking the Tribunal to find a Code violation other than those already identified in the Commission’s and complainant’s pleadings and submissions, the Commission and the complainant are ordered to confirm that they have furnished all reasonable information of the allegations of racial discrimination and racial profiling.
ORDER
23In conclusion, within 10 days of the date of this Interim decision, the Commission and the complainant must deliver to the respondents and file with the Tribunal correspondence:
Identifying the specific aspects of the statement of facts that are alleged to constitute racial discrimination and/or amount to racial profiling; or
If no other elements of the statement of facts will be relied upon by the Commission or the complainant as a basis for arguing a Code contravention, the Commission and the complainant are ordered to confirm their position that there are no further particulars regarding the alleged facts and issues that they intend to prove.
24Subject to receipt of further particulars or confirmation, the respondents requested additional time to file an amended Hearing Brief. Within 10 days after receipt of the Commission’s and complainant’s correspondence, the respondents may serve and file an amended Hearing Brief.
Dated at Toronto, this 23rd day of March, 2008
“Signed by”
Ena Chadha
Vice-chair```