F.Z. v. Toronto Police Services Board, 2009 HRTO 535

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

F. Z. Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Toronto Police Services Board and William Blair Respondents

AND B E T W E E N:

F. Z. Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Toronto Transit Commission Respondent

interim DECISION

Adjudicator: Jay Sengupta Date: April 29, 2009 Citation: 2009 HRTO 535 Indexed as: F.Z. v. Toronto Police Services Board

written submissions by:

F.Z., Complainant ) Marie Chen, Counsel Toronto Police Services Board, Respondent ) Rosanne Giulietti, Counsel William Blair, Respondent ) Kevin McGivney and Naomi E. Calla Counsel Toronto Transit Commission, Respondent ) Lucy Siraco, Counsel Ontario Human Rights Commission ) Prabhu Rajan, Counsel

INTRODUCTION

1These are two complaints brought under the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") by F. Z. alleging that the respondents infringed her right to equal treatment in services because of her age, ancestry, colour, ethnic origin and race. A decision was made by the Commission on November 18, 2008 to refer the complaints to the Tribunal pursuant to s. 36(1) of the Code. The referral, dated December 2, 2008, was received by the Tribunal on December 4, 2008.

2On December 18, 2008, the Tribunal issued a Notice indicating that the Initial Conference Call ("ICC") would take place on January 6, 2009.

3This Interim Decision addresses a number of preliminary issues raised by the parties during the Initial Conference Call ("ICC"). The ICC was adjourned to receive written submissions from the parties on the following three issues:

(a) a request by the Toronto Police Association to intervene in the proceedings on a limited basis;

(b) the status of the Commission in the proceedings; and

(c) use of records governed by the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA").

Submissions have now been received and the ICC is due to resume on May 5, 2009.

4The YCJA contains a provision prohibiting the publication of information identifying a young person dealt with under that Act (see section 110(1)). Although there are exceptions to the prohibition which might apply to the Tribunal's decisions on this complaint, the Tribunal will take the precautionary measure of referring to the complainant by initials only, on an interim basis. At the continuation of the ICC, the Tribunal will hear the parties' submissions on whether it should continue to refer to the complainant by her initials.

REQUEST TO INTERVENE BY THE TORONTO POLICE ASSOCIATION

5The Toronto Police Association seeks to intervene in these proceedings on a limited basis; specifically and solely to address two production requests made by the Commission that could have an impact on members of their association.

6The complainant, the Commission and the respondent, Toronto Transit Commission ("TTC") take no position on this limited intervention request. The Toronto Police Services Board (the "TPSB") and the personal respondent, William Blair (the "Chief of Police"), have indicated that they believe intervention by the Association to address the production issue is appropriate.

7The Tribunal grants the Toronto Police Association limited intervenor status in these proceedings to address two production requests made by the Commission.

STATUS OF THE COMMISSION

8The TTC has made a request for an order that the Commission is not a party to the proceedings as of right and that if the Tribunal so finds, seeks an order that the Commission not be made a party or be permitted to intervene in the proceedings. Their submission is relied upon and adopted by the TPSB and the Chief of Police.

9In support of its contention that the Commission is not a party as of right, the TTC relies on sections 55(3)(b) and 55(4)(b) which state:

55(3) The Commission,

(b) subject to subsection (4), shall not be a party to a complaint referred to the Tribunal during the six-month period referred to in subsection 53 (2).

55(4) The Commission shall continue as a party to a complaint that was referred to the Tribunal during the six-month period referred to in subsection 53 (2) if,

(b) the Tribunal sets a date for the parties to appear before the Tribunal before the end of the six-month period.

10The TTC submits that the appropriate interpretation of s.55(4)(b) is that for the Commission to continue as a party on a complaint referred during the six month period, the date set for the parties to appear before the Tribunal (the ICC) must be before the end of the six month period (December 31, 2008). Counsel for the TTC argues that as the ICC did not commence until January 6, 2009, the Commission cannot continue as a party to the proceeding as of right.

11The TTC argues that a purposive analysis of the provision in its context would result in adoption of the view that the Commission cannot be considered a party as of right. Counsel suggests that, as a statutory exception, s.55(4)(b) should be strictly construed and that the following language could have been used by the legislature had it intended that the Commission continue as a party even if the ICC had not taken place before December 31, 2008:

The Commission shall continue as a party to a complaint that was referred to the Tribunal during the six month period referred to in subsection 53(2) if...before the end of the six month period, the Tribunal sets a date for the parties to appear before the Tribunal (before the end of the six month period) although the date itself may be after the end of the six month period. (emphasis added)

12The TTC also argues that any ambiguity should be read in favour of the respondent as the timing of the referral was within the Commission's control. They submit that this is a complaint that has been allowed to languish and that the Commission could have referred the matter earlier than it did. The respondent TTC also suggests that the interpretation being advanced is consistent with the purpose of the Code as it supports a move to direct access to the Tribunal by complainants and applicants and is also in keeping with the changing role contemplated for the Commission.

13Commission counsel submits that the interpretation being advanced by the TTC is neither reasonable nor plausible and argues that the logical and obvious interpretation of that section is that a date for appearance (the ICC) must be set before December 31, 2008. In support of this, counsel points to a number of authorities that support the principle of statutory interpretation that every word and provision found in a statute is presumed to have a meaning and suggests that, if the interpretation that is being advanced by the TCC were to be accepted, a number of words in the section would be rendered unnecessary:

The Commission shall continue as a party to a complaint that was referred to the Tribunal during the six month period referred to in subsection 53(2) if...the Tribunal sets a date for the parties to appear before the Tribunal before the end of the six month period. (emphasis added)

14Counsel for the complainant adopts and relies on the submission of the Commission on this issue and submits that a plain reading of s. 55(4)(b) requires that a date be set by the Tribunal before December 31, 2008 and that requirement was met when the notice setting the date for the ICC, dated December 18, 2008, was sent to the parties.

15Having considered the arguments raised by the parties, I am unable to accept the interpretation of s. 55(4)(b) being advanced by the respondents. A plain reading of the provision supports the view advanced by the Commission and adopted by the complainant.

16The Code contemplates that the Commission could have made referrals up to and including December 31, 2008. An interpretation of the provision that also required an appearance to take place before that date would be an absurd result that could not have been intended. Instead, a reading of the section that suggests that a date for the appearance being set would satisfy the requirement is more supportable.

17Considering the purpose of this section within the transition provisions, and the Code as a whole, I am satisfied the Legislature clearly intended the Commission to remain as a party as of right on referrals made prior to December 31, 2008. While I agree it might have been more convenient had the Commission decided all remaining referrals within a time that permitted the Tribunal to receive them and schedule the ICC in advance of the Christmas/New year holidays, mere convenience is not sufficient to oust rights to participate. The fact is the Commission's powers to make such decisions continued until 11:59 pm on December 31, 2008. The right to refer and the right to participate as a party are bound up together. Absent clear language in the statute it would defeat the purpose of this provision to interpret the section as the respondents suggest.

18The Request for an order that the Commission is not a party is denied.

19Having decided that the Commission is a party, the conditions in s. 55(4)(b) having been met, it is not necessary for me to deal with the TTC's request for an order that the Commission not be permitted to intervene in these proceedings.

RECORDS GOVERNED BY THE YCJA

20Counsel for the Chief of Police has identified that records relied upon by the Commission and records for which the Commission seeks production that relate to the arrest and trial of the complainant who was then a minor are governed by the YCJA.

21Counsel submits that that the Tribunal is without jurisdiction to order production of or access to the records in question without an order from a youth justice court judge pursuant to s. 138(1) of the YCJA and that reliance on the records without such an order is contrary to that act and potentially an indictable offence. Counsel for the Chief of Police suggests that the appropriate course of action would be for the Commission to bring a motion before a justice of the youth justice court under s. 123 of the YCJA.

22The TPSB and TTC adopt and rely upon the submission of the Chief of Police on this issue.

23Neither the Commission, nor the complainant, argue with the identification of the records in question as being governed by the provisions of the YCJA. Counsel for the Commission does submit, however, that it can only make application for access and use on its own behalf and that any other party seeking to rely on the records would need to make a similar application themselves. The Commission expects that the respondents may, themselves, wish to rely on the records in question.

24The complainant has indicated that she intends to use and rely on the records and is amenable to making a joint application with the Commission.

25In its submission, the Commission has proposed that the parties make a joint application or separate applications under the YCJA to be argued on the same day with the consent of the parties. The Commission takes the position that it does not require the documents in order to proceed with mediation. Alternatively, the Commission submits that any use of the records in a confidential mediation process would not constitute a violation of the YCJA in actuality or in spirit.

26None of the respondents have yet indicated whether they intend to make application under the YCJA to seek access to or rely upon the records in question during these proceedings. The Respondents have not weighed in on the questions of whether they are interested in participating in mediation or whether they agree with the Commission's position that mediation can proceed either without the use of the records or that use of the records in the confidential mediation setting would not constitute a violation of the YCJA.

27At the ICC, scheduled to resume on May 5, 2009, the parties should be prepared to address the questions outlined in paragraphs 26 and 4 (above).