King v. Toronto Police Services Board, 2009 HRTO 644

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy King

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: May 15, 2009

Citation: 2009 HRTO 644

Indexed as: King v. Toronto Police Services Board

WRITTEN SUBMISSIONS FROM

Ontario Human Rights Commission ) Christine Elwell, Counsel

Toronto Police Services Board, Respondent ) Rosanne Giulietti, Counsel

William Blair ) Sie-Wing Khow, Counsel

Nigel Thomas ) Joanne Mulcahy, Counsel

1This Interim Decision addresses three matters: first, the proposed bifurcation of the hearing in this matter to deal first with issues of liability and then with any issues of remedy; second, the Request by the Toronto Police Services Board (the “Board”) to dismiss the Complaint on the basis that the Board is not liable for the actions of individual police officers; and third, the Request by the Ontario Human Rights Commission (the “Commission”) for production of the personnel file of Officer Nigel Thomas and for certain other policy documents.

2A pre-hearing conference call in this matter was held on December 4, 2008. At that time, a schedule to receive written submissions on these preliminary issues was established, as confirmed by letter from the Tribunal to the parties dated January 27, 2009. In that letter, dates for the hearing in this matter were scheduled for June 16 to 18, 2009. Because the Board takes the position that the officer’s personnel file is in the possession of the Chief of Police for the Toronto Police Service (the “Chief of Police”), and not under the power or control of the Board, notice of the Commission’s production request was provided to the Chief of Police and he was afforded with an opportunity to make submissions.

3After submissions were received from the parties, the Tribunal released its decision in Washington v. Toronto Police Services Board, 2009 HRTO 217 dealing with the production of documents from police personnel files and addressing the recent decision of the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3. On March 4, 2009, the parties were invited to make further submissions in response the Washington and McNeil decisions.

4The Board and the Chief of Police subsequently requested that the decision regarding the Commission’s production request for Officer Thomas’ personnel file be deferred pending the hearing of a related judicial review application seeking to review my earlier decision in this proceeding regarding an order for production of certain aspects of the personnel files and other files pertaining to other officers whose actions are at issue in this proceeding: see King v. Toronto Police Services Board, 2008 HRTO 33. The judicial review application was found to be moot on the basis that no records existed in the officers’ files that were responsive to my order, but was adjourned rather than dismissed in the event that any records which are responsive to my order come into existence before this matter is determined: see Police Constable Kevin Cote v. Ontario Human Rights Commission, 2009 CanLII 22550 (ON S.C.D.C). A final opportunity for submissions was afforded to the parties in light of the Divisional Court’s decision on the judicial review application.

5While Officer Thomas is not a party to this proceeding, his counsel filed written submissions with regard to the Commission’s production request for his personnel file. As no party objected to my receipt and consideration of these submissions, I have considered them in rendering this Interim Decision.

Bifurcation of the Hearing

6At the pre-hearing conference call, the issue of the potential bifurcation of the hearing to deal first with issues of liability and then with any issues relating to remedy was raised. The Commission and the complainant agreed to bifurcate, and the respondent Board was to provide its position to the Tribunal on this issue by January 15, 2009. No submissions were received from the Board on this issue.

7In my view, it makes sense to bifurcate this hearing. The remedies sought by the Commission and the complainant are very broad and extensive, and the extent to which such remedies need to be considered or addressed very much will depend upon my specific factual findings and determination as to the basis for any liability in this case, if I so find.

8Accordingly, I find that the most fair, just and expeditious manner of proceeding is to bifurcate the hearing to deal first with issues of liability and then with any issues relating to remedy, after a determination on liability has been made and if a violation of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) is found.

The Board’s Request to Dismiss the Complaint

9As stated above, the Board has requested that the Complaint be dismissed on the basis that the Board is the only named respondent and the Board is not liable for the actions of individual police officers.

10The Board submits that at common law, a police officer is an independent officer of the Crown exercising original authority: Reference Re Power of a Municipal Council to Dismiss a Chief Constable or Other Police Officer Without a Hearing (1957), 1957 CanLII 110 (ON CA), 7 D.L.R. (2d) 222 (Ont. C.A.); New South Wales (Attorney-General) v. Perpetual Trustee Co., [1955] A.C. 457 (P.C.) at 489-490; R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565 at para. 27.

11The Board is governed by the Police Services Act, R.S.O. 1990, c. P.15, as amended (the “PSA”), which both establishes and limits its powers and functions. The Board relies upon subsection 31(3) of the PSA, which provides that the Board may give orders and directions to the Chief of Police (although not with respect to specific operational decisions or with respect to the day-to-day operation of the police force), but not to other members of the police force, and no individual member of the Board can give orders or directions to any member of the police force. The Board further notes that police officers are no longer under any “duty of obedience” to the Board, as this provision was removed from the former Police Act. While the Board has the power to appoint the Chief of Police and individual police officers, thereafter the Board submits that its role is generally limited to setting priorities and making policies and guidelines.

12In response, the Commission submits that the Board has a number of applicable statutory responsibilities under the PSA to ensure that police services are provided in accordance with the Code. The Commission notes that members of the police service are under the jurisdiction of the Board (PSA, s. 31(2)), and that it is the Board’s responsibility to ensure the provision of adequate and effective police services in a municipality, which includes ensuring that police services are provided in accordance with the Code. The Commission further relies upon the fact that the Board is liable for torts committed by individual members in the course of their employment (PSA, s. 50(1)), and that the Board may be sued in its own name (PSA, s. 30(1)).

13While the Commission acknowledges that the Board has no authority over the day-to-day operations of a police officer, the Commission takes the position that human rights matters, including the defence of a human rights complaint, are not mere operational or day-to-day matters. The Commission submits that safeguarding the fundamental rights guaranteed in the Code is at the very heart of the principles underscoring the Board’s provision of adequate and effective police services in this province.

14The Commission also relies upon prior decisions of this Tribunal, or its predecessor the Board of Inquiry, that have held police boards to be responsible for the actions of police officers, which include Nassiah v. Regional Municipality of Peel Police Services Board, 2007 HRTO 14 and Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), 4 CHRR D/1757 (Ont. Bd.Inq.). The Commission also relies upon the decision of the Court in M.E. v. Toronto Police Services Bd., 2008 CanLII 58428 (Ont.S.C.), in which it was held that the Board was vicariously liable for a police officer’s actions in relation to a sexual assault by the officer, stating that the

Board attempts to foster an environment that encourages its residents to obey and trust police officers in the course of executing their duties. Moreover, the defendant Board is in the most propitious position to regulate the conduct of its employees. (at para. 96)

15In this case, the specific acts complained of all relate to the actions of individual police officers, rather than to any direct actions or omissions by the Board. While it is correct that the Commission and the complainant are seeking various remedies that, if granted, may require actions on the Board’s part, the seeking of these remedies in and of itself does not provide a basis upon which the Tribunal can impose liability on the Board. Rather, if liability on the part of the Board is found in relation to the impugned actions of the individual police officers, then in the remedy portion of the hearing a determination would need to be made as to what appropriate remedies flow from the specific findings made in this case in relation to liability.

16As a result, in my view, the determination of the issue of the Board’s liability in this case hinges upon the proper interpretation of s. 46.3(1) of the Code, which states in its relevant part:

For the purposes of this Act…any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation [or] unincorporated association…shall be deemed to be an act or thing done or omitted to be done by the corporation [or] unincorporated association…”.

17Whether the Board is a “corporation” or an “unincorporated association”, the language of this provision is large enough to capture the Board as an organization. Further, in my view, a police officer clearly can be regarded as “an officer, official, employee or agent” of the Board, in light of the fact that police officers are appointed by the Board and in light of the Board’s statutory responsibility to provide adequate and effective police services, notwithstanding that the Board does not have the power to specifically direct an individual police officer.

18The parties are at odds as to whether a police officer is an “employee” of the Board. In this regard, I accept and adopt the observation of the adjudicator in Washington, supra where he states (at para. 29):

There are unique features about the relationship between municipal police services boards (“PSBs”) and uniform officers that make it different from a traditional employment relationship. These arise because of the legal status of police officers and the particular disciplinary regime in Part V of the PSA. Nevertheless, PSBs are, in very many ways, like the officers’ employer. The PSA provides that members of the police force are appointed by the PSB (s. 31(1)(a)), are “under the board’s jurisdiction” (s. 31(2)), the board may “terminate a police officer’s employment” during their probationary period (s. 44(3)) and may discharge a member because accommodation of a disability may result in undue hardship (s. 47). Under s. 126(3), PSBs bargain with police associations to reach agreements “dealing with the remuneration, pensions, sick leave credit gratuities and grievance procedures of the members of the police force and, subject to section 126, their working conditions”. They also establish guidelines for dealing with public and internal complaints against members of the force under Part V (s. 31(1)(i)). The PSB is the equivalent of an employer for most purposes, and certainly has an important role in relation to the discipline and complaints process.

19I also agree with the submission made by the Commission that the term “employment” in the Code should be broadly and liberally construed in order to best achieve the Code’s purposes and objectives: see Pannu v. Prestige Cab Ltd., 1986 CanLII 6476 (AB CA), [1986] A.J. No. 1717 (C.A.), at para. 15. In Pannu, the Court states that the terms “employed” and “employment” in human rights legislation should not be narrowly or technically construed, but should be read and understood in their broader or common-day usage in the sense of being “utilized”.

20In my view, in order to find that any acts or omissions of an individual police officer were committed in the course of her or his “employment”, it is not necessary for me to find that the police officer is an “employee”. To restrict the interpretation of s. 46.3(1) in this fashion would render superfluous the other identifiers of persons whose actions or omissions can form the basis of deemed liability under that provision, namely officers, officials and agents, who may not, technically speaking, be “employees”. Rather, in my view, the term “employment” should be broadly and liberally construed to mean that the person, whether officer, official, employee or agent, was acting in the course of her or his duties or responsibilities as assigned to her or him by the organization. I also note that, in the context of imposing liability upon the Board for torts committed by members of a police service, which would include police officers, the PSA refers to torts committed “in the course of their employment”, which is the same language as appears in s. 46.3(1) of the Code. This further reinforces that the phrase “in the course of their employment” is being used in a broader fashion than just restrictively applying to an employee of the Board.

21As a result, I am not prepared to dismiss the Complaint at this stage of the proceeding on the basis that the Board cannot be held liable for the actions of the individual police officers that are at issue in this case. Whether or not I make any finding of liability against the Board at the end of the day, of course, will depend upon my consideration of all of the evidence received at the hearing.

The Commission’s Request for Production

a) The Personnel File of Officer Thomas

22In his Complaint, the complainant alleges, inter alia, that while in his cell, Constable Thomas called him a “bitch” and told him he should be in the Don Jail “where the other bitches are.” In light of these allegations, the Commission has identified Constable Thomas as one of the police officers whose actions are at issue in this proceeding and are being relied upon to seek a finding of liability as against the Board. As a result, as the Commission did previously in this proceeding in relation to other officers whose actions are at issue, the Commission seeks production of “the complete personnel file of Officer Thomas, including any complaints made against him or disciplinary action taken regarding alleged discrimination under the Code on the basis of sexual orientation, including similar complaints under the Police Services Act”.

23In my previous decision on production, I found that the Commission’s request was over-broad, but did order production of documents in the personnel files of these police officers or from any other location that relate to the subject-matter of the Complaint in this proceeding or that relate to other complaints or allegations of sexual orientation discrimination against these police officers, on the basis that such documents were “arguably relevant” to the matters at issue in this proceeding: see King v. Toronto Police Services Board, 2008 HRTO 33.

24Since that decision was issued, the Supreme Court of Canada released its decision in R. v. McNeil, supra, regarding disclosure of police disciplinary records in the criminal context. As noted above, the R. v. McNeil decision was considered by this Tribunal in Washington v. Toronto Police Services Board, supra.

25The Washington decision relates to a similar request by the Commission for production of information about any complaints of discrimination on the basis of race (the ground alleged in that case) made against respondent police officers and any discipline imposed as a result. While R. v. McNeil provides helpful guidance regarding the general issue of access to police disciplinary records, I agree with the adjudicator in Washington that one needs to be cautious about the application of cases decided in the criminal law context or even in the civil litigation context to human rights proceedings.

26Counsel for Officer Thomas, whose submissions are adopted and relied upon by the Chief of Police, takes the position that the Commission has not established the “arguable relevance” of the records sought and is embarking upon an impermissible “fishing expedition”. Constable Thomas submits that, in order to establish arguable relevance, the Commission is required to demonstrate a nexus between the records sought and the issues in dispute in this proceeding, and must establish the arguable relevance of these records as “similar fact” evidence. Constable Thomas further takes the position that, if arguable relevance is found, the records in this case are third party records and I must follow the O’Connor-type production procedure ordered in the Washington decision, whereby the records are produced first to the Tribunal for review and balancing of probative value versus potential prejudice.

27The Commission takes the position that the Tribunal’s prior decisions in King, supra and Nassiah, supra, in which no O’Connor-type procedure was ordered, are correct and that I should determine its production request on the basis of the ordinary governing principles whereby if a document is found to be arguably relevant, it should be ordered produced.

28With regard to the submission that the Commission is on a “fishing expedition” in this case and has not established the arguable relevance of these records, for all of the reasons previously expressed by me in prior decisions in this matter, including my decision on the request for a stay of my previous order pending judicial review (2008 HRTO 55 at para. 15), I do not agree.

29Further, Constable Thomas has made a submission about the need for the Commission to establish arguable relevance as “similar fact” evidence. There is a statement in the Washington decision that “the only arguable relevance of the records sought would be as similar fact evidence”. This statement needs to be read carefully in the full context of the Washington decision, and should not be interpreted in a manner that unduly narrows the potential relevance of the records to the issues in dispute. The term “similar fact evidence” has been afforded a much broader interpretation in the context of human rights proceedings, and may extend to evidence relating to other incidents of alleged discrimination on the same ground as alleged in the instant proceeding but which may not meet the traditional test for admissibility as “similar fact” evidence as that term has been interpreted and applied in the criminal law context. Such evidence may nonetheless be considered relevant and admissible in a human rights proceeding as evidence which reveals a discriminatory bias or prejudice on the part of the officer, provided that the probative value outweighs the prejudice, as considered in light of human rights values.

30For example, in the instant case, the allegations made by the complainant relate to comments made by various officers which are alleged to have involved the use of overt epithets that demeaned the complainant based on his perceived sexual orientation. It is possible that there may be records of complaints against one of the officers in question relating to alleged sexual orientation discrimination which do not involve the use of such overt epithets, but instead are based upon more subtle actions alleged to be discriminatory.

31In my view, at the stage of a party’s obligation to produce all arguably relevant documents, it would be unduly restrictive if this latter kind of evidence were not considered to be “arguably relevant” at least at the preliminary production stage. In my view, the approach taken in Nassiah, supra and in King, supra, whereby the scope of the obligation to disclose is defined by complaints relating to the relevant ground of discrimination alleged, provides the appropriate definition of the obligation at this preliminary stage. Whether or not the evidence is admissible at the hearing, either as “similar fact” evidence or as evidence relevant in some other way to the matters at issue, is a determination that is best left for adjudication at the hearing on the basis of any information brought forward by the parties regarding any actual other alleged incidents of discrimination for which records have been disclosed.

32In this regard, I note that in Washington, supra, the Tribunal ordered production of all complaints against the officers alleging racial profiling, racial discrimination and/or racial harassment, which were the grounds of discrimination alleged in that case, and thereby accepted, as the Tribunal did in Nassiah and King, that evidence of all other complaints on the same grounds was arguably relevant and subject to disclosure, subject to the O’Connor-type approach taken in that case.

33With regard to the contrary submissions by the parties regarding the application of an O’Connor-type procedure to the Commission’s request, I decline to apply an O’Connor-type procedure when dealing with the Commission’s production request for two reasons. First, as recognized by the adjudicator in the Washington decision, the procedure set out by the Supreme Court of Canada in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 only applies when records are being sought from a third party. Even then, the O’Connor decision was made in the criminal law context. While it has been applied in the context of civil litigation and while similar-type processes have sometimes been applied in the context of human rights proceedings, the O’Connor decision is not directly applicable to the issue of production from third parties in the context of a human rights proceeding.

34In the instant case, both the Chief of Police and the officer distinguish Washington on the basis that the officer about whom records are being sought is not a party respondent to this proceeding, and take the position that the records sought in this case are “third party records”. In my view, this is not correct. As previously noted, the records being sought do not belong to the police officer; they are records maintained by the Toronto Police Service and are in the possession of the Chief of Police. As a result, whether or not the individual police officer about whom records are sought is or is not named as a party respondent to the proceeding makes no difference to the issue as to whether these records are first party or third party records.

35This leaves the question as to whether the fact that the records are in the possession of the Chief of Police, who is not a party respondent, and not in the possession of the Board, which is the only party respondent in this case, means that these records are third party records. On this point, the Chief of Police takes issue with the determination in the Washington decision that records maintained by and in the possession of the Chief of Police are first party records. The Chief of Police argues that these records relate to the day-to-day operation of the police service, and that the Board is statutorily barred by s. 31(4) of the PSA from directing the Chief of Police on operational decisions and the day-to-day operations of the police service. On this basis, the Chief of Police takes the position that the Board has no power to direct him to produce these records. Hence, as the Board and not the Chief of Police is the only party respondent, the Chief of Police argues that these records are third party records.

36I agree with the determination in Washington that this argument cannot succeed and that the records sought are in fact first party records. I also observe that in R. v. McNeil, supra, the Supreme Court held that even though the investigating police service is separate and distinct from the Crown, nonetheless the Crown’s first party disclosure obligation extends to documents in the possession of the police service. In my view, the determination that the records sought are first party records in the instant case is fortified by R. v. McNeil, in light of the even closer relationship between a Police Services Board and a police service.

37In addition, however, I do not agree that the records being sought are beyond the power and control of the Board. Section 41(2) of the PSA provides that “the chief of police reports to the board and shall obey its lawful orders and directions”. This general authority of the Board is reinforced by section 31(3) of the PSA, which states that “the board may give orders and directions to the chief of police”. This general authority of the Board to give orders and directions to the Chief of Police is then limited by s. 31(4) of the PSA, which states that “the board shall not direct the chief of police with respect to specific operational decisions or with respect to the day-to-day operation of the police force”.

38As a result, it is clear that the Board has authority to order and direct the Chief of Police to produce records in the context of a human rights proceeding, unless such direction can be regarded as being “with respect to specific operational decisions” or “with respect to the day-to-day operation of the police force”. While there is no doubt that the records themselves are maintained by the Chief of Police as part of the day-to-day operation of the police service, this does not mean that a direction to the Chief of Police to disclose these records in the context of a human rights proceeding is part of the “day-to-day operation” of the police service or with respect to any “specific operational decision”. Quite the contrary, a human rights proceeding brought against a Police Services Board is a legal proceeding in which allegations are raised in respect of which the Board may be found liable and where the Board requires access to documents in order not only to defend itself but to comply with its obligations of disclosure and production. No “specific operational decision” is engaged in this context, nor is litigation against the Board part of the “day-to-day operation” of the police service. As a result, I do not accept the argument that I cannot order the Board to direct the Chief of Police to produce documents and records in his possession in the context of a human rights proceeding.

39Despite having found that the records being sought are first party records and not third party records, I am cognizant of the fact that an O’Connor-type procedure nonetheless was applied in the Washington decision. As adverted to above, there is a second and more fundamental reason that I do not believe that an O’Connor-type procedure is appropriate in terms of determining access to records relating to a police officer. In my view, the use of an O’Connor-type procedure is an extraordinary departure from the ordinary principles that apply to production and disclosure in a human rights proceeding, and can only be justified in the most exceptional circumstances. This is because the use of this type of procedure puts a double burden on the party seeking disclosure: first to demonstrate arguable relevance; and then, in the absence of access to the records at issue, to satisfy the Tribunal as to the “likely relevance” or the “true relevancy of the targeted records”: R. v. McNeil, 2009 SCC 3 at paras. 34 – 39.

40Whether such a procedure is appropriate in an individual case will very much depend upon the nature of the privacy interests at stake. For example, in circumstances such as McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13 where sensitive medical records of a party are at issue, such a procedure may be appropriate as the privacy interests engaged go to the very core of the medical and therapeutic relationship between doctor or therapist and patient and providing too easily available access to such records in the context of a legal proceeding may have harmful and deleterious effects on that important relationship.

41In my view, no similar compelling interests are engaged when a party is seeking access to records relating to complaints against a police officer pertaining to the ground of discrimination at issue sufficient to justify the utilization of an extraordinary O’Connor-type procedure. No important relationship is put at risk by the disclosure of such records, and no similar harmful or deleterious effects are caused. Unlike a doctor or therapist and patient, a person who makes a complaint of discrimination against a police officer is highly unlikely to have an ongoing, significant relationship with the officer that it is in a broader societal interest to protect and foster. No harm could be caused to the relationship between the person making the complaint and the police officer as a consequence either of disclosure or the risk of disclosure.

42I am cognizant of the observation by the Supreme Court in R. v. McNeil, supra that the very nature of police work puts officers at risk of being subject to such complaints. However, that in my view goes to issues relating to the admissibility of and weight to be accorded to any such evidence, which are matters best determined by the adjudicator in the context of the hearing, rather than being a reason for adopting an extraordinary O’Connor-type procedure and putting a double burden on the party seeking disclosure at a preliminary stage of the proceeding.

43I also recognize, as noted by the adjudicator in Washington, that there are privacy interests at stake beyond those of the officer: namely the privacy interests of any persons who have made complaints against the officer. Once again, however, when examined in context, I do not see the privacy interests of persons who make such complaints as justifying the adoption of an extraordinary O’Connor-type procedure. In light of the fact that the person made the complaint either to the police service or in such manner that the complaint came to the attention of the police service (otherwise there would be no record to produce), the person making the complaint cannot be regarded as having any reasonable or compelling expectation of privacy. It is not as if, for example, the complaint against the officer was made in private to a doctor, therapist or other confidante. The complaint necessarily was made for the purpose of coming to the attention of the police service so that some action would be taken or redress provided. I can appreciate that such persons may not have expected that these records would be disclosed to a third party in the context of a human rights proceeding relating to some other incident in which the person was not involved, and such persons may be reluctant or unwilling to become involved in the human rights proceeding if the records and incident are found to be relevant and admissible at the hearing. However, the same can be said of many witnesses who are not directly involved in a proceeding but who possess relevant evidence.

44The Chief of Police and the officer also take the position that production should be restricted only to instances where a “finding” of discrimination has been made. I also do not agree, and concur with the reasons expressed by the adjudicator in Washington, supra at paras. 22 – 23 in this regard.

45Counsel for the police officer takes issue with the Commission’s delay in seeking disclosure of the records pertaining to Constable Thomas when production of similar records relating to other officers whose actions are at issue in this proceeding was raised at a much earlier time. While I agree that it would have been preferable for the Commission to have raised its production request regarding records relating to Constable Thomas at the same time as its request pertaining to the other officers, this is not a reason for denying the Commission and the complainant access to arguably relevant documents prior to the hearing.

46In the end, in my view, the normal principles relating to production and disclosure should apply to the records sought by the Commission in this case, and I make the same order that I made in my previous decision, namely that the Board and/or the Chief of Police make full disclosure and production of any documents in the personnel file of Constable Nigel Thomas or from any other location that relate to the subject-matter of the complaint in this proceeding or that relate to other complaints or allegations of sexual orientation discrimination against Constable Nigel Thomas. Despite the fact that I have found that these documents are within the power and control of the Board, such that a specific order against the Chief of Police is not strictly necessary, I am making my order applicable to both the Board and the Chief of Police to ensure expeditious compliance. The hearing in this matter is scheduled to commence on June 16, 2009 which is a month away. Unavoidable delay has been caused by developments in the law in this area that the parties needed to be afforded an opportunity to address and due to the timing of the judicial review application. As a result, however, the hearing is very close at hand and production of any documents responsive to my order needs to be made in a highly expeditious fashion. For these reasons, my order is that any such documents be produced within the next seven calendar days.

47I am aware that in response to my last order, the affected officers commenced an application for judicial review and, after some delay, requested a stay of my order, which I denied. I also am aware that, in the absence of any stay of my order, the Chief of Police nonetheless failed to make disclosure in compliance with my order. To be clear, my expectation is that the Board and the Chief of Police will comply with my order within the next seven calendar days, unless prior to the expiry of that time a stay has been granted either by this Tribunal or by the Court.

b) Policy Documents Requested by the Commission

48The Commission also seeks the disclosure and production of the Toronto Police Service Training and Education Unit’s learning program, including course content, and delivery plan on LGBT (Lesbian, Gay, Bisexual and Trans-gendered) sensitivity training that was to have been completed by August 2005, as set out in Minutes of Settlement between the Toronto Women’s Bathhouse Committee, the Toronto Police Services Board et. al. and the Commission in other proceedings before this Tribunal.

49In my prior decision dated June 4, 2008, I ordered the Board and/or Chief of Police to produce “training manuals and/or materials and policy documents relating to anti-discrimination and sexual orientation”. In response to this order, the Board states that it has produced its policy on the search of transgendered persons, and its policies on Equal Opportunity, Discrimination and Workplace Harassment and Race and Ethnocultural Equity. For his part, the Chief of Police states that he has produced the following materials:

• “Ethics and Professionalism in Policing”, current to 2005;

• “Crisis Resolution and Officer Safety” (CROS), current to December 31, 2007;

• “Policing and Community Expectations Course” (PACE) – LGBT Issues and Policing; and

• Civilian Diversity Course.

50If there are other training manuals and/or materials in existence relating to anti-discrimination and sexual orientation, whether in the context of providing LGBT training pursuant to the aforementioned settlement or otherwise, then these materials would be responsive to my original order and ought to be produced. While the Commission may have had involvement in the preparation of this training and the Board and the Chief of Police as a result may have some legitimate expectation that the Commission already has possession of these documents, this does not relieve the Board and the Chief of Police from making full disclosure in accordance with my order.

51On the other hand, if all materials responsive to my original order already have been produced, then there is no requirement for any further production. It is not an issue before me as to whether or not the Board and/or the Toronto Police Service has complied with a settlement reached in another proceeding, certainly not at the first stage of the proceeding where I am only dealing with issues relating to the potential liability of the Board.

52As a result, I confirm my original order and direct that the Board and the Chief of Police produce any other or further training manuals and/or materials in existence relating to anti-discrimination and sexual orientation, whether in the context of providing LGBT training pursuant to the settlement with the Commission and the Toronto Women’s Bathhouse Committee or otherwise. This production should be made within the next seven calendar days.

ORDER

53For all of the foregoing reasons, the Tribunal makes the following Order:

1. the hearing in this matter is bifurcated to deal first with issues of liability and then with any issues relating to remedy, if necessary, only after a determination on liability has been made;

2. the Board’s request to dismiss the Complaint on the basis that it is not liable for the actions of individual police officers is denied; and

3. within 7 calendar days of the date of this decision, the respondent and/or the Chief of Police shall make full disclosure and production of the following:

   1. any documents in the personnel file of Constable Nigel Thomas or from any other location that relate to the subject-matter of the Complaint in this proceeding or that relate to other complaints or allegations of sexual orientation discrimination against Constable Nigel Thomas; and

   2. any other or further training manuals and/or materials in existence relating to anti-discrimination and sexual orientation, whether in the context of providing LGBT training pursuant to the settlement with the Commission and the Toronto Women’s Bathhouse Committee or otherwise.