Macanovic v. Toronto Police Services Board, 2009 HRTO 642

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jemila Macanovic

Complainant/Applicant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board

Respondent

-and-

William Blair

Affected Party

-and-

Toronto Police Association

Intervenor

INTERIM DECISION

Adjudicator: Sherry Liang

Date: May 15, 2009

Citation: 2009 HRTO 642

Indexed as: Macanovic v. Toronto Police Services Board

APPEARANCES

Jemila Macanovic, Complainant/Applicant ) On her own behalf

Toronto Police Services Board, Respondent ) Robert J. Baldwin, Counsel

Ontario Human Rights Commission ) Sharon Abrahams, Counsel

William Blair, Affected Party ) Melany V. Franklin, Counsel

Toronto Police Association, Intervenor ) David Butt, Counsel

1In this complaint made under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), the Tribunal held an oral hearing to receive the submissions of the parties on the following issues:

• The Commission and the complainant’s request for further production of documents;
• The respondent’s request for further particulars of certain allegations in the pleadings;
• The respondent’s request to strike out certain portions of the pleadings, on the basis that they raise issues that form the basis of other complaints with the Commission, are not within the scope of the original Complaint, or are insufficiently particularized;
• The complainant’s request to have all her Complaints against the respondent heard together as part of the current Complaint;
• The appropriate manner of proceeding with Tribunal File No. 2009-01345-I, given its relationship to the subject-matter of the other Complaints filed by the complainant.

2Before setting out my determinations, I find it useful to briefly review the general framework within which I consider these issues. First, the Tribunal’s proceedings are governed by the rules of natural justice which require that parties know the case they must meet. Second, the hearing of a complaint or application by the Tribunal is not a public inquiry. Nor is it an investigation. It is a hearing into allegations of discrimination under the Code. The Tribunal’s power to order production of documents is exercised within the context of those allegations of discrimination. Third, in the ordinary course, the rational and orderly conduct of a Tribunal proceeding requires that allegations be made promptly and with sufficient particularity that a response can be made. Following this, parties are entitled to disclosure of all documents which are arguably relevant to the issues raised in the parties’ pleadings. Finally, although the Tribunal’s hearing is not necessarily restricted to the specific factual allegations contained in the original complaint or application form, neither should it become a “moving target” for a respondent. The Tribunal applies these principles and gives its directions with a view to the fair, just and expeditious resolution of the matter before the Tribunal.

3Having heard the submissions of the parties and reviewed the material before me, I make the following determinations.

AMENDMENT OF COMPLAINT/REQUEST TO STRIKE PLEADINGS

4In the original Complaint (Commission Complaint No. NRIX-6KBPMT) (the “August 2005 Complaint”) the complainant alleges discrimination in policing services on the ground of disability in two broad ways. The complainant self-identifies as mentally ill, and alleges that police officers with the Toronto Police Service (TPS) failed to respond appropriately to her need for police intervention and treated her differently in the provision of policing services on the basis of her mental illness. It is also alleged that the police failed to take her complaints about improper policing seriously because of her condition. She states generally that she “can no longer rely on the police to treat me fairly when attending a service call [n]or can I get proper service as others would get when I do call.”

5Commission Complaint No. RSEA-78SS4B (the “November 2007 Complaint”) is an additional complaint, filed by the complainant on November 6, 2007, and relating to events occurring on June 7, 2007. It is alleged essentially that the police were responsible for a denial of emergency medical services to the complainant on that date. It is alleged that the police acted on the basis of discriminatory assumptions about the complainant. The Commission’s pleadings in the Complaint before me (the August 2005 Complaint) refer to the events encompassed by the November 2007 Complaint. The respondent requests that those portions of the pleadings be struck, as they are the subject of another Complaint. The complainant has stated that she is willing to abandon the November 2007 Complaint if she is permitted to have those events litigated in the Complaint before me.

6I have decided to permit the portions of the pleadings referring to the events in the November 2007 Complaint to stand. They are reasonably covered by the scope of the August 2005 Complaint. Those events may be viewed as part of the continuum of events that the complainant alleges amount to unequal treatment in the provision of policing services on the basis of disability.

7My decision to allow this aspect of the pleadings to stand is also based on the complainant’s undertaking to abandon the November 2007 Complaint if she is permitted to have these allegations litigated as part of the August 2005 Complaint now before me. In view of my decision, the Tribunal directs the complainant to confirm her withdrawal of Complaint No. RSEA-78SSB to the Commission, and file a copy of her correspondence with the Tribunal.

8The issues raised in Commission Complaint No. VMAS-7G4UEE (the “June 2006 Complaint”) will be struck from the pleadings, as they are distinct from those in the August 2005 Complaint and are not fairly encompassed by it. The June 2006 Complaint is about the disclosure of information about arrests under the Mental Health Act, R.S.O. 1990, c. M.7, as amended, as part of police reference checks. It is alleged that the police discriminate against persons with psychiatric disabilities through their policy on police reference checks. This is quite a different issue from the allegations of discrimination in policing services arising out of the interactions between the complainant and individual police officers, which are the basis of the Complaint before me.

9Given that the allegations about police reference checks are already the subject of a separate Complaint and can be adequately dealt with there, I see no reason to expand the Complaint before me to add those allegations. I also see no reason to hear the two Complaints together.

10The portions of the pleadings that allege discrimination in the application of the Mental Health Act to arrest the applicant are also struck. The original Complaint of August 2005 refers to unequal treatment by the police in responding to calls by either the complainant or her landlord. Among other things, it makes allegations that the police threatened the complaint with arrest under the Mental Health Act, for no legitimate reason, in response to her requests for service. In further pleadings, the complainant has clarified that the disputes between herself and her landlord, which led to police intervention, occurred on various occasions between December 3, 2003 and September 11, 2005.

11It is now apparent from the pleadings that the complainant was detained under the Mental Health Act on numerous occasions, before and after the incidents involving her landlord. The pleadings now raise issues about the validity of these arrests of the complainant, and whether the police had valid grounds for those arrests or were acting in a discriminatory manner. These allegations go back to 2001, well before the August 2005 Complaint. In my view, these allegations are an unreasonable expansion of the scope of the original Complaint and are not fairly encompassed by the issues raised in that Complaint. These additional allegations do not flow from or form part of the continuum of facts of the original Complaint, and would lead to a considerable expansion of the matters to be heard in this Complaint. I do not find it appropriate to allow the Complaint to be amended to include these allegations.

12I make the same finding with respect to the allegations made by the complainant that the police have tried to influence paramedics to arrest her under the Mental Health Act. These allegations are found at paragraphs 11, 12, 15, and 19 of the Commission’s pleadings, and at paragraph 7 of the complainant’s submissions of December 23, 2008. Other than the one instance of a threat to arrest the complainant under the Mental Health Act in response to events involving the complainant’s landlord, the complaint does not raise issues about police misuse of the Mental Health Act in her original Complaint. The allegations in these paragraphs do not flow from the original Complaint and, again, having regard to the potential impact on the hearing of the Complaint before me, I do not find it appropriate to amend the Complaint to include them.

13I allow paragraph 3 of the Commission’s pleadings to stand. The basis for the request to strike this paragraph is that no mention of events in December 2003 was made in the original Complaint, and that the first indication these events were at issue came in the Commission’s hearing brief. I find that the Complaint referred to disputes between the complainant, her landlord and other tenants and gave a time frame sufficient to enable the respondent to investigate the allegations.

14In sum, I allow the request to strike the following portions of the pleadings:

• Complainant’s Reply; paras. 2 – 6, 13, 17, 19, 24, and 27; and
• Commission’s Pleadings, paras.6 (first four sentences), 11, 12, 15, 19, and 23 to 28 (regarding background checks).

15In addition to or overlapping with the issues raised above, the complainant has requested in her submissions that she be permitted to include all the allegations contained in two letters she sent to the Commission, on September 11, 2006 and September 17, 2007, in her Complaint. Some of the allegations in those letters have been incorporated into the pleadings and have been allowed to stand. To the extent that some of those issues relate to arrests under the Mental Health Act or the police policy on reference checks, for the reasons given above, the request is denied.

16In her letter to the Commission of September 11, 2006, the complainant identifies four additional incidents in which she states “the police have failed to investigate some of my service call needs”:

• Harassment at 96 Gerrard Street;
• Harassment at Ryerson;
• An assault at Toronto Western Hospital; and
• An assault by Shoppers Drug Mart Human Resource manager.

17Although the above incidents were not referred to in the Complaint or in the pleadings, the complainant now seeks to have them added to her Complaint. I have decided against incorporation of these allegations into the Complaint before me. Although dates were not given, it is evident that these events occurred sometime before September 2006. The Commission and the complainant have known about them since at least September 2006. These incidents were not brought to the attention of the respondent until very recently, and in my view, it would be unfair to require the respondent to defend claims about events not referred to in the original Complaint and not raised until more than two years after they occurred.

APPLICATION UNDER SECTION 34

18The Application under section 34 is now duplicative of some, but not all of the issues in this Complaint. Based on the applicant’s request, the Tribunal grants leave to the applicant to amend the Application under section 34 to withdraw the allegations in the November 2007 Complaint, as they have been allowed to stand in the pleadings in the Complaint before me.

19The portions of the Application under section 34 dealing with background checks cannot proceed because of section 53(8), which states:

No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

20The complainant may bring an application to the Tribunal under section 53(5) with respect to her Commission Complaint about background checks. In this respect she is referred to the Tribunal’s Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code, and the corresponding provisions of the Code, which establish a deadline of June 30, 2009 for bringing such an application.

21The remaining portions of the Application under section 34 deal with arrests under the Mental Health Act. Given my determination that these allegations will not form part of the Complaint before me, the Application shall be processed by the Tribunal in the normal course. The Registrar will deliver Notice of this Application on the respondent, along with a copy of this Interim Decision.

22The Tribunal also notes that the complainant may have an outstanding Complaint against the City of Toronto Emergency Medical Service (EMS), which has not been referred to the Tribunal by the Commission or brought to the Tribunal as a transition application under sections 53(3) or (5). There has been no request made for me to deal with the issues against the EMS as part of hearing this Complaint and I make no determinations about that other matter.

REQUEST FOR PARTICULARS

23The respondent’s Hearing Brief of August 22, 2008 raised issues about the sufficiency of the Commission and the complainant’s pleadings. It was said that for many of the allegations, there were insufficient particulars to permit the respondent to properly understand or respond to the Complaint.

24Following this, the complainant filed a Reply in which greater detail about the events was provided, including dates and descriptions of specific interactions. The complainant’s later written submissions also responded to the request for further particulars.

25The particulars which have been provided improve on the initial pleadings and for the most part are sufficient. Specific dates are given and events described. However, for some of the events I find insufficient clarity about what the complainant alleges to be discriminatory actions by the police. Although events are recounted, it is not clear what the complainant alleges the police to have done or not done, in violation of the Code. I will therefore order further particulars with respect to some of the events. From my review of the pleadings (excluding the portions of the pleadings that I have struck), the following are the portions which require further particulars about whether and why the events amount to discrimination:

• Complainant’s Reply; paras. 7 – 12, 14 – 16, 18, 20 – 22, 25, 28, 29, 33, and 34.

26Although the complainant has described actions taken by the police in the above interactions, it is not clear what conduct the complainant alleges is discriminatory in those interactions. To ensure the rational and orderly hearing of the issues, it is necessary for the respondent, and for the Tribunal, to understand the nature of the discrimination being alleged. I will therefore direct further particulars be provided, in the manner described above.

27Finally, in written submissions by the complainant (dated January 16 and 23, 2009), she refers to three occasions, September 4, 2008, December 6 or 7, 2008, and January 23, 2009, in which she states she called the Toronto Police Communication Centre for assistance. She also refers to six dates on which “the police were called and asked to check up on my mental health”. As well, she refers to a written complaint she filed in March 2008, to which she did not receive a response. Although the references to these events are framed as requests for disclosure of records relating to the events on those dates, it is apparent that the complainant wishes to add them to the allegations in her Complaint.

28I will permit the Complaint to be amended to add the events of December 6 or 7, 2008 and January 23, 2009 to the matters before me, as they are arguably part of a continuum with the allegations of discrimination in the provision of policing services on the basis of a mental illness. I will also allow the allegation about a complaint filed in March 2008 to be added to the Complaint, on the same basis.

29I do not permit the amendment of the Complaint to encompass events on September 4, 2008, May 18, 2007, February 2, 2005, April 27, 2005, November 7, 2005, June 5, 2005, June 7, 2005 and September 4, 2008. There are no particulars provided to support a finding that the respondent violated the complainant’s rights under the Code.

JURISDICTION OF THE TRIBUNAL

30The respondent submits that the Tribunal does not have jurisdiction to consider the allegations that the internal investigation done by the TPS of her complaints about police services was inadequate or improperly performed. It is said that the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”) provides a complete statutory code for the review and handling of civilian complaints against members of the police, including a route of appeal. The respondent submits that if the complainant was unsatisfied with a decision of the police regarding how any specific complaint was handled or reviewed, she was required by the PSA to appeal that decision to the Police Services Commission. The respondent states that the jurisdiction to review decisions of the TPS regarding the handling of a complaint filed with the TPS has been given exclusively to the Police Services Commission.

31At the oral hearing, the respondent relied on a decision of the Ontario Court of Appeal, Toronto Police Association v. Toronto Police Services Board [2007] O.J. No. 4156, in support of its position.

32I am satisfied that the Tribunal has jurisdiction over allegations that the internal investigations of the complainant’s complaints under the PSA were discriminatory. I was pointed to no provision in the Code that exempts such investigations from the guarantees and obligations under the Code. I was also not pointed to any provision in the PSA giving it exclusive jurisdiction over allegations of improper investigations of complaints under the PSA, including allegations of discrimination in those investigations.

33It may be that an individual who believes that an investigation of his or her complaint under the PSA was discriminatory could raise this issue in an appeal to the Police Services Commission. But this does not in itself preclude the Tribunal from considering the same allegations. Where the Tribunal has the jurisdiction to hear a complaint raising issues about discrimination in services, the fact that there may also be another forum in which to raise those issues does not in itself displace the Tribunal’s jurisdiction.

34I also note that no one took the position that the PSA ousted the Tribunal’s jurisdiction to consider other aspects of the complainant’s allegations of discrimination in policing services. It was not asserted, for instance, that because individual police officers may be disciplined under the PSA for discriminatory treatment in the exercise of their duties, the Tribunal would have no jurisdiction to deal with a complaint about discriminatory conduct by a police officer.

35I am not convinced that the decision in Toronto Police Association leads to the conclusion that the Tribunal has no jurisdiction over these issues. In that decision, the Court of Appeal found that the PSA sets out a complete code with respect to police discipline. The courts therefore have no jurisdiction to deal with a civil suit whose essential nature is about the discipline of police officers.

36The circumstances in Toronto Police Association are different from those before me. The central nature of this Complaint is about discrimination in the provision of services, which is squarely within the Tribunal’s jurisdiction. Its essential nature is not about police discipline. The subject matter of this part of the Complaint is not about whether certain officers should have been disciplined, or how, but about whether the persons in charge of investigating complaints about police officers discriminated against the complainant on the basis of disability. I therefore deny the respondent’s request to strike from the pleadings the allegations concerning discrimination in the handling of the complainant’s complaints under the PSA.

37After the oral argument, counsel for the respondent submitted an additional decision, Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] S.C.J. No. 35, which he states contains at least some overlap with the issues before the Tribunal. I have reviewed that decision and do not find support there for the contention that the Tribunal has no jurisdiction over allegations that the respondent discriminated against the complainant in the manner in which it dealt with her complaints about police services.

PRODUCTION OF DOCUMENTS

38I now turn to consider the request by the Commission and the complainant for further production of documents. As I have struck portions of the pleadings, I will not consider requests for production relating to issues that are no longer part of the Complaint before me.

39My direction to the Commission and the complainant to provide further particulars does not stand in the way of ordering production of arguably relevant documents. I do not agree with the submissions of the respondent, the affected party and the Toronto Police Association (TPA) that there is insufficient particularity in the pleadings to support production. As I have indicated, the complainant has given details about the dates and nature of events at issue. She has also listed, by date and file number, her complaints under the PSA. She has also provided particulars of a complaint she states she filed in writing in March 2008. The only portions of the pleadings for which I conclude further particulars are required are those parts of the complainant’s Reply referred to in paragraph 25 above. No production of documents is required in relation to those allegations pending further particulars.

40The Commission initially framed its production request very broadly, without reference to specific dates or incidents. Following this initial request, the complainant provided particulars of the events at issue in the Complaint, with reference to specific dates or complaints made by her under the PSA. The Commission has now narrowed its production request to encompass documents arguably relevant to those events and complaints. As it currently stands, in relation to the pleadings I have allowed, the Commission’s request covers the following documents:

1. documents relating to complaints filed by the complainant under the PSA and bearing the following file numbers: EXT-0226, 0227, 0228 (all withdrawn) EXT-0442, 0056, 0123, 0235, 0236, 0237, 0408, 0409, 0477;
2. incident/event reports and police officer notebooks relating to the following dates and arising out of disputes between the complainant and her former landlord: December 3 and 16, 2003, May 17, 2005, August 3, 9 and 31, 2005, September 9 and 11, 2005;
3. logs of calls from the complainant;
4. notes and notebooks by five named officers: Inspector R.H. Allen, Inspector Len Faul, Police Constable John Pierrepoint, Staff Sergeant Christ White, and Inspector David Marks;
5. recordings of calls made by the complainant to the Toronto Communication Centre;
6. copies of complaints filed by the complainant under the PSA; and
7. any other arguably relevant documents.

41In her written submission of November 27, 2008, the complainant also requested:

• A copy of P.C. Fleischmann and P.C. Pierrepont’s job descriptions as they were when they were dealing with me from 2003 – 2005;
• Any documented communication the police may have had with any of the hospitals in the Toronto area; and
• The notes and notebooks of officers that ever dealt with me from 2003 – 2008.

42In her written submission of December 23, 2008, the complainant requested production of the following:

• Any recorded documentation sent or recorded between the Police chief’s administrative staff, the Toronto Police Service Communication Centre, Constable Fleischman of the “Vulnerable Persons” Office and Superintendent Jane Dick’s office, or with divisional stations, in relation to the complainant; and
• Any communication the police may have had with any staff employed by the Toronto hospitals or their mobile crisis team.

43January 16, 2009, the complainant requested the following documents:

• Audio records, ICAD reports and officers’ notes from May 18, 2007, February 2, 2005, April 27, 2005, November 7, 2005, June 5 and 7, 2005, September 4, 2008 and December 6 or 7, 2008;
• Any recorded communications between “the surrounding Toronto hospitals and the Toronto Police”; and
• Records relating to a written complaint the complainant states she filed with 14 Division Staff Sgt. Brookes in March 2008.

44On January 23, 2009, the complainant requested disclosure of documents in relation to a service call on that date. It is alleged that a police officer harassed the complainant.

45I find that the documents encompassed by #1 and #6 in paragraph 40 above, with the exception of documents relating to complaints under the PSA which were withdrawn by the complainant, are arguably relevant to the Commission and complainant’s contention that on those dates or in relation to the handling of PSA complaints, the police accorded the complainant unequal treatment because of a disability. I also find arguably relevant to the issues in the complaint, the documents in #2 as well as documents encompassed by #3 and #5 which relate to the dates listed in #2.

46In support of her request in #4 of paragraph 40 for the notes of the five named officers, the complainant states that she frequently communicated her concerns to Constable Pierrepont, Superintendent White and Detective Allan of Professional Standards. She states that their notes will provide the Commission and complainant an insight into the responsiveness of the Toronto Police Service in regards to the complainant’s concerns. Unless they are encompassed by the documents in #1 of paragraph 40, I am not convinced that the arguable relevance of their notes has been established.

47Likewise, I do not find a sufficient basis in the pleadings to assess the arguable relevance of the notes of Inspectors Len Faul and David Marks.

48I will not order the production requested by the complainant in her November 17 or December 23, 2008 submissions. The arguable relevance of the job descriptions of the two officers has not been established. The other requests are overly broad and are not linked to any specific allegation. If any of these documents are covered by other categories of documents I have ordered produced they will be disclosed in any event.

49I will not order production of communications between the police and any staff employed by the Toronto hospitals or their mobile crisis team. The request is overly broad and is not linked to specific allegations.

50In relation to the January 16, 2009 request, I will order production of any ICAD or audio records created of conversations between the complainant and the Toronto Police Communication Centre on December 6 or 7, 2008. I will also order production of documents relating to a written complaint filed by the complainant with 14 Division Staff Sergeant Brookes in March 2008. Apart from those documents, and having regard to my determinations on the scope of the Complaint above, there is no basis to order production of any of the other documents requested.

51I will order production of documents requested in relation to the January 23, 2009 incident. I have permitted the Complaint to be amended to encompass this incident and the Commission and complainant are entitled to disclosure of documents arguably relevant to those events.

Whether the Tribunal Should Apply the Process in R. v. O’Connor

52It was argued before me that even if I find documents about the PSA complaints to be arguably relevant, I should order production initially to the Tribunal and apply the procedure in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, to a further determination of whether they should be produced to the Commission and complainant. The parties referred me to the recent Tribunal decision in Washington v. Toronto Police Services Board, 2009 HRTO 217, in which such a two-step process was applied, as well as to the decision of the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3.

53The Tribunal has discretion to order the production of documents to the Tribunal for inspection, before making a determination as to whether to order disclosure to the parties. The question is whether I am either required, or should exercise my discretion, to order such a two-step process in this case. Having considered the issue, I find it unnecessary to make this kind of order in the case before me. The documents sought relate to the complainant’s own complaints about policing services and how her complaints were dealt with by the police. As such, they are certainly at least arguably relevant to the material issues at the heart of this part of the complaint. This is not a case where the documents are said to be relevant to similar fact evidence, credibility, or collateral issues, or where issues of privilege are involved. This is also not a case which raises the possibility of privacy interests of other, unrelated complainants of police misconduct, as in Washington. The parties are bound by an implied undertaking requiring them not to use the documents for purposes unrelated to the hearing before the Tribunal. In all these circumstances, I find it unnecessary to encumber the process of production under the Tribunal’s Rules with an additional procedural step.

54There are other cases where the Tribunal will find it appropriate to apply the O’Connor two-step process to the production of records. Washington is one example of such a case. But I am satisfied that the circumstances there were different from those before me.

55The decisions in either R. v. O’Connor or R. v. McNeil do not remove the Tribunal’s discretion about whether to apply a two-step process to the production of documents where complaints about police conduct are involved. Those decisions were made in the context of Crown disclosure obligations in a criminal trial, where the records sought were arguably beyond the scope of the Crown’s first party disclosure obligations. They are not directly applicable to a request for production under the Code. The principles expressed by the Supreme Court of Canada are relevant insofar as they set out considerations that bear on whether the Tribunal ought to exercise its discretion to order production through a two-step process. In the circumstances of this case, as I have indicated above, I see no reason why such a process is warranted.

56I recognize the possibility that some police officers, who are not party to this Complaint, may have some level of privacy interests in the records which may be disclosed. But the existence of a privacy interest does not by itself lead either to a two-step process or refusal of production. It can be fairly assumed that many records routinely disclosed as part of a human rights proceeding, or other litigation, contain some information in which individuals may have privacy interests. In a case alleging workplace harassment, for instance, an employer who is a respondent may be required to disclose records about its actions in response to the alleged harassment. Those records may contain information about other employees in the workplace. In this case, some of the records sought by the Commission and complainant may contain information about the complainant’s former landlord. It cannot be said that the Tribunal is required to apply the O’Connor process to all records which are arguably relevant to the material issues in a matter before it, simply on the basis that they may contain information about individuals who are not parties to that matter.

57Similarly, the Tribunal does not routinely require notice to all individuals whose information may be found in records before they are ordered produced. Although such a step was taken in Washington where all prior complaints in the personnel records of a particular officer were sought, again, the circumstances there were different from the ones before me. The documents sought here relate to the handling of the complainant’s own complaints. They are not about potential undisclosed similar facts. I see no reason in the case before me to require notice to the officers who were the subject of the complainant’s own complaints about policing services, before considering whether to order production.

58I also recognize that to the extent I am ordering production, it is as against the Chief of Police, who is not the named respondent to the Complaint but has participated as an affected party. Rule 1.7(p) gives the Tribunal the authority, in order to provide for the fair, just and expeditious resolution of any matter before it, to require a party or other person to produce a document. No party submitted that I did not have the authority to order production, apart from raising the issues discussed above. Although in another case it may be appropriate, in applying Rule 1.7(p), to inspect the documents before ordering them produced to a party, I find it unnecessary in this case. This is not a case where production is being sought from someone wholly unconnected to the proceedings. The Complaint is about policing services, and in part about the response of the police service to complaints about itself. Even if the respondent, the Board, is a separate legal entity from the Chief of Police, with whom the documents are said to reside, it can hardly be said that the Chief of Police is a stranger to the issues in the complaint.

Section 80 of the Police Services Act

59Finally, during the hearing of the motion, the parties asked for additional time to address the applicability of section 80 of the PSA to part of the production request, pertaining to the investigation of the complainant’s complaints under that Act. That section states:

Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,

(a) as may be required in connection with the administration of this Act and the regulations;

(b) to his or her counsel;

(c) as may be required for law enforcement purposes; or

(d) with the consent of the person, if any, to whom the information relates.

60The affected party has written to the Tribunal stating:

In the course of the hearing, there was some discussion as to the application of section 80 of the Police Services Act (“PSA”) to these proceedings. Specifically, a question was raised as to the Tribunal’s jurisdiction to make a production order in respect of documents obtained under Part V of the PSA. Subject to the request for particulars and the application of the O’Connor process, as adopted by the Tribunal in the Washington decision, the reports will be produced. As such, there is no need for a Tribunal order or consideration of s. 80.

61It is not clear from the above whether the affected party has agreed to production of these documents conditional on the application of the O’Connor process and receipt of further particulars, or whether he is merely indicating that his agreement to produce is subject to his positions taken at the hearing on those issues. As I have ruled that no further particulars are required before production, and that the Tribunal will not apply the O’Connor process in the circumstances of this case, it is necessary to seek clarification from the affected party on his position. The Tribunal therefore requests clarification from the affected party, in light of my determinations above, about whether he takes the position that section 80 of the PSA precludes production of the documents obtained under Part V of the PSA. If so, he must file submissions on this issue. The affected party’s response and submissions if any must be provided by May 27, 2009.

REQUEST FOR ORAL HEARINGS

62By email dated March 30, 2009, the complainant has requested that any further motions in this matter be scheduled for oral hearings. She refers to her difficulties in researching and making written submissions.

63It is unnecessary to make a general determination on the request at this time. If further issues arise requiring submissions from the parties the Tribunal will decide how to deal with them, having regard to the complainant’s request.

ORDERS

64To summarize, my orders are as follows:

a. The following portions of the pleadings are struck:

Complainant’s Reply; paras. 2 – 6, 13, 17, 19, 24, and 27; and

Commission’s Pleadings, paras. 6 (first four sentences), 11, 12, 15, 19, and 23 to 28 (regarding background checks).

b. The complainant’s Application under section 34 will be delivered to the respondent, along with a copy of this Interim Decision.

c. The complainant is directed to provide further particulars, by June 3, 2009, on whether and why the events described in the following portions of her pleadings amount to discrimination:

Complainant’s Reply; paras. 7-12, 14 – 16, 18, 20 – 22, 25, 28, 29, 33, and 34.

d. The Complaint is amended to include the allegations relating to events on December 6 or 7, 2008 and January 23, 2009 and a written complaint made in March 2008 by the complainant, as described in the complainant’s written submissions of January 16 and 23, 2009.

e. With reference to the documents listed in paragraph 40, above, the affected party is directed to produce, by June 3, 2009 the documents in #2, as well as those in #3 and #5 which relate to the dates listed in #2.

f. The affected party is directed to produce, by June 3, 2009, any documents arguably relevant to conversations between the complainant and the Toronto Police Communication Centre on December 6 or 7, 2008, to a written complaint filed by the complainant with 14 Division Staff Sergeant Brookes in March 2008, and to the events of January 23, 2009 as described in the complainant’s written submissions.

g. The affected party is directed to clarify whether he takes the position that section 80 of the PSA precludes production of the documents obtained under Part V of the PSA, in view of the findings in this Interim Decision. If so, he must file submissions on this issue. His response and submissions if any must be provided by May 27, 2009.