Smith v. Peel Regional Police Services Board, 2009 HRTO 742

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lana Smith

Complainant

-and-

Peel Regional Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: June 2, 2009

Citation: 2009 HRTO 742

Indexed as: Smith v. Peel Regional Police Services Board

WRITTEN SUBMISSIONS BY

Lana Smith, Complainant ) Selwyn Pieters, Counsel

Peel Regional Police Services Board, ) Laurie Wall, Counsel

Respondents )

Ontario Provincial Police, ) Jinan Kubursi, Counsel

Proposed Respondents )

Ontario Human Rights Commission ) Bay Ryley, Counsel

1This Interim Decision addresses the complainant’s Request to add the Ontario Provincial Police (“OPP”) as a party to these proceedings.

BACKGROUND

2The complainant, Lana Smith, was a police constable with the Peel Regional Police Services Board (“Peel”) between 1989 and March 17, 2003. On August 10, 2004, she filed a Complaint with the Ontario Human Rights Commission (the “Commission”) under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) against the respondent, Peel. She alleged that, while it employed her, the respondent discriminated against her on the basis of race, colour, and sex and engaged in reprisals contrary to the Code. She also alleged that Peel engaged in continuing reprisals against her contrary to the Code after she left to join the OPP on March 17, 2003.

3On July 29, 2008, the Commission exercised its discretion under the Code not to deal with the part of the Complaint alleging discrimination because of colour, race, sex and reprisal during the period that the complainant was employed by Peel. The Commission concluded that the respondent would be significantly prejudiced were it required to provide a detailed defence in respect of the very general allegations dating back as many as 10 years earlier, from 1996 to 2003.

4The Commission decided to refer to the Tribunal only that part of the Complaint which relates to alleged discrimination and reprisals against the complainant by the respondent after March 2003.

THE REQUEST TO ADD THE OPP AS A PARTY

5On January 26, 2009, the complainant, through her counsel, brought a Request for Order during Proceedings to add the OPP as a respondent. The Request was heard in writing. The Commission did not file any submissions but supports and relies upon the complainant’s submissions. The OPP and Peel oppose the Request. For the reasons that are set out below, and after careful consideration of the submissions of the parties, I have concluded that the OPP should not be added as a respondent to these proceedings.

SUBMISSIONS OF THE PARTIES

6The parties agree that the test for determining whether the Tribunal should exercise its discretion to add a party to a proceeding is the two-part test developed in Payne v. Otsuka Pharmaceutical Co., 2001 CanLII 26231 (ON H.R.T.), and refined in Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22. That test interpreted and applied sections 39(2) and (3) of the old Code and requires the Tribunal to consider:

1. whether there are facts alleged in the Complaint which, if proven, and absent some defence by the respondent, could lead to a finding that the proposed respondent violated the complainant’s rights; and

2. whether the proposed respondent would suffer real and substantial prejudice that could not be alleviated or cured by a Tribunal order if it were made a party to the proceeding.

7The Tribunal has held that where alleged facts, if proven, could lead to a finding that the proposed respondent infringed the complainant’s rights under the Code; and the proposed respondent would not suffer real and substantial prejudice if added as a party to the proceeding, the proposed respondent may be added as a party to the proceeding, at the Tribunal’s discretion: Greenhorn, supra; Pieters v. Liquor Control Board of Ontario (Store 568), 2007 HRTO 22.

THE COMPLAINANT

8In 2002, while still employed with Peel, the complainant applied for employment with the OPP. After a series of written tests, she was interviewed. During a background check of the complainant as a potential candidate for the OPP, the complainant contends that anonymous telephone calls were made to the OPP advising against hiring the complainant. The complainant alleges that in light of these unsolicited negative calls, the OPP went beyond its normal background check and sought information about the complainant outside of the usual process. Specifically, the complainant alleges that on September 5, 2002, Human Resources Superintendent Jay Hope emailed one Kerlan Maclean to inquire to whom the OPP should be speaking for some unbiased feedback about the complainant. The complainant describes the September 5, 2002 email as “central” to her claim.

9The complainant alleges that she was subsequently offered a position with the OPP, which she accepted. On March 17, 2003, the complainant left the employ of Peel and joined the OPP. The complainant alleges that Peel maliciously attempted to undermine her chances of employment with the OPP by making it common knowledge among officers that she was going to the OPP and by providing an unfair and discriminatory assessment of her ability to the OPP.

10The complainant submits that the above facts, if proven, could lead to finding that the OPP violated her rights under the Code within the meaning of the first part of the test in Payne. The complainant submits that the onus to show that it would suffer real and substantial prejudice if it were added as a party to these proceedings rests on the OPP and that there is no evidence that the OPP would suffer such prejudice.

THE OPP

11The OPP submits that the facts alleged by the complainant, if proven, could not lead to a finding the OPP violated the complainant’s rights under the Code. Although there are references in the complainant’s allegations to the OPP, and to the OPP’s hiring of the complainant, the Complaint alleges that it was Peel which infringed the complainant’s rights under the Code, not the OPP.

12The OPP further submits that, even if the two-part test in Payne is met, the Tribunal has discretion not to add it as a party: Arzem v Ontario (Minister of Community and Social Services), 2006 HRTO 12. It submits that the complainant and the Commission chose not to add the OPP as a party when the Complaint was originally filed, although it was open to them to do so. The OPP submits that the complainant has not provided any reason for the four and a half year delay in seeking to add it as a party and that, in the absence of a good reason for the delay, the Tribunal should exercise its discretion not to add the OPP as a party.

13The OPP further submits that it would suffer substantial prejudice if it were added as a respondent at this stage in the proceeding. It submits that to add it as a respondent after such a lengthy and unjustified delay would be contrary to the fair, just and expeditious resolution of the Complaint and would bring the administration of justice into disrepute: Jeffrey v. Dofasco Inc., 2004 HRTO 5 at para. 174; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S. C.R 307 at para. 122.

PEEL

14Peel submits that the facts alleged in the Complaint do not disclose a violation of the Code by the OPP and that therefore the first part of the test in Payne has not been met and the Request should be dismissed. Peel submits that because the complainant was hired by the OPP, she was not subjected to differential treatment by the OPP on the basis of any alleged statements about her by Peel. Moreover, Peel submits that there are no other facts alleged which, if proven, could support a finding that the OPP violated the complainant’s rights under the Code.

15With respect to the second part of the test, Peel submits that it and the OPP, would suffer significant incurable prejudice in their ability to make full answer and defence to the complainant’s allegations if the OPP were added as a party at this stage in the proceedings. Adding the OPP as a respondent at this stage would, Peel submits, expand the facts and issues in dispute. Since it has been over five years since the alleged incidents occurred, Peel submits that it would be unable to properly investigate and respond to the expanded allegations resulting from the OPP’s addition as a party. Peel further submits that it would suffer actual prejudice as the result of the potential destruction of evidence, the difficulty in locating witnesses, and witness memory decay in respect of events which were not investigated in a timely way.

16Peel submits that it would be inconsistent with the Tribunal’s mandate to ensure a fair, just and expeditious resolution of the Complaint to add the OPP at this stage of the proceedings. Peel submits that the principles of procedural and substantive fairness require that the parties identify significant requests such as the addition of a respondent as early in the process as possible: Sinclair v. London (City), 2008 HRTO 11. The original Complaint contained numerous references to the conduct of the OPP and the complainant and the Commission were fully aware of all of the alleged facts relating to the OPP at the time the Complaint was filed. However, neither the Commission nor the complainant sought to add the OPP as a respondent until years after the Complaint was filed. Peel submits that the Tribunal should decline to add the OPP as a party in the absence of a good and compelling reason for the four and a half year delay in seeking to add the proposed respondent.

17Peel further submits that adding the OPP would significantly delay the proceedings and be inconsistent with the expeditious resolution of the Complaint. If added as a party, the OPP would have to be given a sufficient opportunity to investigate the allegations and to file pleadings in response to the complainant’s allegations. Further, the participation of another party in the hearing would require more hearing time to allow the additional party to call evidence and make submissions and to allow the other parties to respond.

18Peel also submits that adding the OPP as a party would change the issues as they have been defined, expand the facts and issues in dispute and necessitate more extensive pleadings by all parties.

19In addition, Peel submits that the Tribunal should exercise its discretion not to add the OPP as a party because the complainant missed the Tribunal’s deadline for her to submit her written Request by six weeks without any explanation.

DECISION

20Pursuant to s. 55(2) of the Code, the Tribunal must deal with this Complaint in accordance with the new Part IV of the Code as though it were an application made to the Tribunal under that Part. Thus, while the parties’ submissions refer to s. 39(3) of the old Code, the section of the Code governing the parties to the Complaint is s. 36:

36. The parties to an application under section 34 or 35 are the following:

37. In the case of an application under subsection 34 (1), the person who made the application.

38. In the case of an application under subsection 34 (5), the person on behalf of whom the application is made.

39. In the case of an application under section 35, the Commission.

40. Any person against whom an order is sought in the application.

41. Any other person or the Commission, if they are added as a party by the Tribunal.

21As under the applicable provisions of the old Code, under s. 36(5), the Tribunal has a broad discretion to add parties to an application.

22As the Tribunal noted in Santo and Claman v. Toronto Police Services Board, 2008 HRTO 56, the test to determine whether to add a party to proceedings before the Tribunal is not applied in a mechanical way. The fundamental question the Tribunal must always answer when determining whether to exercise its discretion to add a party is whether it is appropriate to do so in a given case. In exercising that discretion under the new Code, the Tribunal must also be mindful of its mandate to dispose of applications before it in a “fair, just and expeditious” manner.

23While it is appropriate, therefore, to continue to refer to and make use of the two-part test developed in Payne, in exercising its discretion to add a party under the new Code, the Tribunal will consider whether adding a party would be consistent with the fair, just and expeditious resolution of the Complaint. In this regard, the Tribunal may decline to add a party where to do so would alter the fundamental nature and scope of the Complaint and would not serve the Tribunal’s guiding principle to resolve matters in a fair, just and expeditious manner: see Santo and Claman, supra at paras. 27 and 28 and Sinclair, supra, at paras. 15 and 17.

24The first part of the test in Payne and Greenhorn relates to whether there are allegations that could lead to the finding that the proposed respondent infringed the complainant’s rights under the Code. A party may only be added if there are facts alleged, which, if proven, could support a finding that the proposed respondent violated the complainants’ rights. These allegations must be more than frivolous or mere puffery: Arzem, supra, at para. 61.

25In this case, I decline to exercise my discretion to add the OPP as a party because the first part of the test in Payne has not been met and because to add the OPP as a party of this stage of the proceedings would be inconsistent with the Tribunal’s mandate to resolve disputes in a fair, just and expeditious manner.

26In support of her Request, the complainant relies chiefly on the allegation that the OPP wrote an email seeking information about the complainant outside of the usual OPP background process before hiring her. The OPP had received unsolicited and anonymous negative calls about the complainant. Its alleged response was to attempt to identify a source of unbiased feedback about the complainant. Ultimately, the complainant was hired by the OPP. In my view, these facts could not give rise to a finding that the OPP subjected the complainant to differential treatment on the basis of any prohibited ground under the Code or as a reprisal.

27Even if I look beyond the Request to the Complaint itself, it does not contain facts upon which the Tribunal could find that the OPP infringed the complainant’s rights. In essence, the complainant alleges that, after she commenced employment with the OPP, it mistreated her on certain occasions. However, she does not allege facts which, if proven, would allow the Tribunal to conclude that the OPP’s actions were based on a prohibited ground under the Code or constituted a reprisal. Rather, the focus of the Complaint is on Peel’s allegedly discriminatory conduct towards the complainant including attempts to damage her reputation with the OPP. Accordingly, I find that the facts alleged, if proven, could not give rise to the finding that the OPP violated the complainant’s rights under the Code as required by the first part of the test in Payne.

28Moreover, I decline to exercise my discretion to add the OPP as a party to this proceeding because doing so would alter the fundamental nature and scope of the Complaint. In essence, the complainant filed a Complaint against her former employer alleging that it discriminated against her on the basis of race, colour and sex, and, when she left its employ, continued a campaign of harassment and discrimination against her by spreading negative rumours about her and attempting to poison her new work environment. Insofar as it related to things which happened to the complainant after she joined the OPP, the Complaint was directed at Peel as the cause of the complainant’s problems, not the OPP. According to the Complaint, the OPP workplace was the merely new environment in which the complainant’s former employer allegedly continued to infringe on her rights under the Code. The complainant initially held Peel liable for the alleged mistreatment she experienced after starting work with the OPP. If successful in adding the OPP as a respondent, she would seek to argue that the OPP is liable as a discriminator in its own right. To permit the complainant to fundamentally alter the nature and scope of her Complaint in this manner more than four years after it was filed would be inconsistent with the Tribunal’s mandate to resolve Complaints in a fair, just and expeditious manner.

29For all these reasons, the Request to add the OPP as a respondent is dismissed. In these circumstances, it is not necessary to consider whether the adding of the OPP as a party to this proceeding would cause real and substantial prejudice, incapable of being cured by a Tribunal order.

30I am not seized. The Registrar-Transition will set dates for the exchange of hearing briefs and a pre-hearing conference call, as required by the Tribunal’s Rules.