HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Parminder Bharta
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Toronto Police Services Board, and William Blair
Respondents
Interim Decision
Adjudicator: Michael Gottheil
Indexed as: Bharta v. Ontario (Attorney General)
1These Complainants allege discrimination in the provision of services, goods and facilities contrary to section 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on the ground of creed. Specifically, the complainant, who is a Khalsa Sikh, was not permitted to enter Old City Hall courthouse with her kirpan.
2The parties, save for the Attorney General, have now submitted their hearing briefs. The complainant has indicated that she will rely upon the hearing brief submitted by the Commission. In accordance with the direction issued at the Initial Conference Call, the Attorney General has filed its Request for Order During Proceeding, in which it seeks to have the Complaint against it dismissed.
3This Interim Decision addresses certain procedural issues and provides directions in order that this matter may be determined fairly and expeditiously.
Request by Attorney General to Dismiss File HR-1717-08
4In its Request, the Attorney General states that it is not responsible for providing court security. It argues section 137(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended, (the “PSA”) provides that police boards are responsible for court security, and Regulation 3/99 made under the PSA provides that the Chief of Police is responsible for the development of procedures regarding court security and the supervision and training of court security personnel. It states that court security officers are members of the police service, and are not employees or agents of the Attorney General. The Attorney General submitted an affidavit from Lou Bartucci, Acting Director of Court Operations for the Toronto Region, explaining the respective roles and responsibilities of the Attorney General and the Toronto Police Service in relation to court security.
5The other parties have not provided their Responses to the Attorney General’s Request for Order. No later than May 15, 2009, the other parties must deliver to one another, and file with the Tribunal:
a) A statement indicating whether they consent to the dismissal of the complaint in Tribunal File HR-1717-08 against the Attorney General;
b) If they oppose the dismissal of the complaint against the Attorney General, submissions setting out the reasons for their position, along with legal argument;
c) If they oppose the dismissal of the complaint against the Attorney General, a statement indicating which portions of the affidavit of Mr. Bartucci they accept, and which potions they dispute. If any party disagrees with any portion of Mr. Bartucci’s affidavit, they shall provide an affidavit setting out the facts which they rely upon.
d) No later than May 22, 2009 any party may file a reply to the submissions of any other party.
6If any party opposes the Request of the Attorney General, the Tribunal will hear oral argument on the Request at the hearing scheduled below.
Other Procedural Matters
7The respondents Toronto Police Services Board (the “Board”) and the Chief of Police (the “Chief”) have raised the question of whether the Commission and the complainant allege direct, as well as indirect, discrimination. It appears clear that the Complaints allege that the policy relating to court security established (and enforced) by the respondent Board and/or Chief had a discriminatory effect on the complainant because of her creed. Although the facts set out in the Complaints and in the Commission hearing brief address the conduct of particular officers and what transpired on February 2, 2006, it is not clear whether the Commission and the complainant allege that conduct violated the complainant’s rights under the Code. The Commission and the complainant shall, at the same time as providing submissions set out above, indicate whether they allege that the particular conduct of the officers constituted a violation of the complainant’s rights, in addition to the allegation of the discriminatory effect of the policy.
8It appears to the Tribunal that there is not substantial disagreement on what transpired on February 2, 2006, although there is some dispute about the interaction between the officers and the complainant. As a result, the parties should consider the scope of the evidence and witnesses that may be necessary to establish the factual foundation to deal with the Complaints. The parties should be prepared to discuss, at the hearing scheduled below, what evidence, and which witnesses they propose to call, and whether certain facts may be agreed upon.
9In addition, both the Board and the Chief indicate that they intend to call expert witnesses and may call witnesses to address the issue of undue hardship. It appears that the question of undue hardship will likely be an issue in this case. As a result, the respondents should consider what evidence they will call in that respect. The respondents should also consider whether they can establish the evidence necessary for them to fully argue their positions by using the same experts. The parties should be prepared to discuss this matter at the hearing scheduled below.
10Any party wishing to raise any other procedural matter in relation to the hearing of these Complaints must identify such matters no later than May 22, 2009.
11The Tribunal will set dates for the hearing of the merits of this matter at the hearing scheduled below.
12The Tribunal may issue further case management directions in this matter.
Hearing Scheduled
13The Tribunal proposes that the hearing to address the Attorney General’s Request, if it is opposed, and the matters identified in paragraphs 8 and 9 of this Decision will be held on June 8, 2009. Should any party not be available on that date, they must advise the Registrar-Transition within 5 days of the date of this Direction, and provide five alternative dates on which they are available.
Dated at Toronto, this 28th day of April, 2009.
“Signed by”________________________
Michael Gottheil
Chair