Gernon v. Toronto Police Services Board, 2009 HRTO 83

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Gernon

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board and Maureen Carey

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: January 26, 2009

Citation: 2009 HRTO 83

Indexed as: Gernon v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Mark Gernon, Complainant ) Vusumzi Msi, Counsel

Toronto Police Services Board and ) Heather Crisp, Counsel

Maureen Carey, Respondents )

INTRODUCTION

1This Interim Decision addresses the complainant’s request for production.

2The complaint, dated December 3, 2004, alleges discrimination on the basis of race, colour and sex in employment, and reprisal, contrary to sections 5(1), 8 and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complainant, a member of the police auxiliary, applied for a position as a regular member of the Toronto Police Service (the “TPS”). The complainant alleges he was advised that he was not given consideration equal to that given to other applicants because of his status as a white male. He alleges further that, when he complained of discrimination, he was subjected to reprisal in that he was “permanently screened out” from the employment process.

BACKGROUND

3By letter dated April 30, 2007, the Ontario Human Rights Commission (the “Commission”) referred the subject matter of the complaint, as it relates to the issue of reprisal only, to the Tribunal. The hearing commenced on June 1, 2007, with an initial conference call. Since that time, the parties have completed the exchange of pleadings and hearings briefs.

4At a pre-hearing conference call on November 17, 2008, hearing dates were set, commencing February 26, 2009. The complainant and the respondents also agreed to a schedule for the exchange of written submissions on the complainant’s production request. The Commission indicated that it would not be providing submissions on the production request.

5As agreed, the complainant’s submissions were filed on December 5, 2008, however, the respondents’ submissions, due December 15, 2008, were not received until January 9, 2009. On January 13, 2009, the complainant filed reply submissions, requesting that the Tribunal order disclosure as requested, without regard to the respondents’ submissions. Counsel for the respondents immediately clarified that she advised the Registrar-Transition on January 6, 2009, that she had inadvertently missed the deadline and that her clients intended to respond by January 9, 2009. In the circumstances, the Tribunal will consider the respondents’ submissions.

REQUEST FOR PRODUCTION

6The complainant submits that he made an earlier request for production to the respondents on June 20, 2008, and attached a copy of his earlier request to his current request. In the complainant’s current request for production, which appears to reiterate his earlier request, the complainant requests the following documents and information from the respondents:

1. The complete files and documents of the Toronto Police Service relating to Mark Gernon – including (but not limited to) Metropolitan Toronto Police Application files, Toronto Police Service Application Files, Metropolitan Toronto Police Employee Record files, Toronto Police Service Employee Record files, Metropolitan Toronto Police Unit files, Toronto Police Service Unit Files.

2. Memobooks/Notes of S/Sgt Paul Hogg 5669 for the period of 2004 September 01 to 2008 June 30 – in relation to Mark Gernon.

3. Memobooks/Notes of Sgt Martin Zakrajasek 3623 for the period of 2003 April 1 to 2008 June 30 – in relation to Mark Gernon.

4. Memobooks/Notes of PC Allyson Slater 2608 for the period of 2003 January 1, to 2008 June 30 – in relation to Mark Gernon.

5. Memobooks/Notes of Maureen Carey 88546 for the period of 2004 January 01 to 2008 June 30 – in relation to Mark Gernon.

6. Ontario Association of Chiefs of Police (O.A.C.P.) Selection Program and Criteria utilized by the Toronto Police Service in 2003-2008.

7. List of all Police Constables hired by the Metropolitan Toronto Police Service and the Toronto Police Service since 1992.

8. Copies of all O.A.C.P. certificates of Police Constables hired by Toronto Police Service since 1992.

9. Copies of all Police Constable applications for Police Constables hired since 1992 – noting application submission date, application interview date, application background commencement date, application background completion date, date hired.

10. List of all police constable candidates hired by Toronto Police Service since February 2004 when Mark Gernon’s background check was complete; with dates of application and dates of hire.

11. Of those hired – copies of all self declaration forms.

12. List of authorized hiring class numbers from 1992 to 2008, and number of candidates actually hired.

13. List of all Toronto Police Service police constables who since 1992 were charged with an offence under the Criminal Code of Canada and who were subsequently suspended/discharged or reinstated.

14. List of all Toronto Police Service police constables who at the time of hiring had a record of either criminal offence(s) (whether or not pardon was granted) or provincial offence’s [sic], hired since 1992.

15. List of Police Constable Cadets hired by the Toronto Police since 1992 who did not successfully complete the Ontario Police College course and who were discharged, resigned, or returned to a previous position within the employ of the Toronto Police Service.

16. All correspondence passing between the Chief’s office and the Employment Unit or other Units of the T.P.S., as a result of the October 13 2004 letter from Mark Gernon, to Chief Fantino.

17. Copy of correspondence from Paul Hogg – Employment Unit to Ontario Association of Chiefs of police office(s) as a result of November 9, 2004 meeting between Manager of Employment Unit, Staff Sergeant Hogg of Employment Unit and Mark Gernon.

18. Reply from the O.A.C.P. to the above communication sent by the Toronto Police Service.

19. Copy of letter that was to be sent to Mark Gernon on December 3 2004 – when Manager of Employment Unit advised Mark that he was permanently screened out of hiring as police constable.

20. Copy of Justice Ferguson Report.

21. Copy of Police Service Board Draft From Race Relations Joint Working Group – September 2003.

22. Copy of Report – Policing a World within a City.

23. Copy of Toronto Police Service Rules and Procedures.

24. List of addresses (municipalities) shown on applications, of all Police Constables hired by Toronto Police Service, since 1992.

25. List of all Police Constables [sic] current home addresses (municipalities only).

26. Copy of the Toronto Police Service Program to target and hire individuals to increase diversity in the T.P.S..

27. Copy of Toronto Police Services Board approval of Program to target and hire individuals for diversity reasons.

28. Copy of the Agreement and protocol entered into by the Toronto Police Service with the Ontario Human Rights Commission.

29. Phone Record list (incoming and outgoing calls) for the following employees of the Toronto Police Service, for the periods below:

S/Sgt Paul Hogg September 1, 2004 – July 30, 2005

Sgt. Martin Zakrajasek April 1, 2003 – July 30, 2005

PC. Allyson Slater January 1, 2003 – July 30, 2005

Maureen Carey September 1, 2003 – July 30, 2005

The threshold for production and disclosure

7The threshold for production and disclosure of documents in a human rights proceeding is "arguable relevance". While described as “not a particularly high bar”, there must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute: see Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 at para. 37 (Ont. Bd. Inq.), referring to Biederman v. Banfai (2000), 38 C.R.R.R. D/395 at para. 14 (Ont. Bd. Inq.).

THE ISSUES IN DISPUTE

8With respect to the issues in dispute, the respondents submit that, although the Commission decided to refer the complainant’s “reprisal complaint” to the Tribunal, the Commission determined that the allegations of discrimination on the basis of race and sex would not be referred to the Tribunal. The respondents submit, therefore, that the only allegation before the Tribunal is whether the respondents infringed the complainant’s right to claim and enforce rights under the Code, specifically by permanently screening him out of competition as a police constable after he wrote to Chief Julian Fantino on October 13, 2004. The complainant, in his pleadings, states the issues are whether his “permanent screening out” was a reprisal within the meaning of the Code and what is the proper remedy. It appears, therefore, that the issues before the Tribunal are whether or not the respondents infringed the complainant’s right to claim and enforce his rights under the Code without reprisal, contrary to section 8 of the Code and, if so, what orders may be appropriate.

Documents already provided or do not exist – Items 1, 15, 16, 17, 18 and 19

9With respect to the request for the complete files and documents of the T.P.S. relating to the complainant, the respondents submit that they have already provided all the file information held by the T.P.S. regarding the complainant to all parties. The respondents also submit that all correspondence between the Chief’s office and other units of the T.P.S., with respect to the complainant’s letter of October 13, 2004, and all correspondence to and from Paul Hogg to the Ontario Association of Chiefs of Police (the “O.A.C.P.”), has been provided to the parties. This does not appear to be disputed in the complainant’s reply submissions.

10The complainant also requested a copy of a letter that was to be sent to him on December 3, 2004, when he was advised that he was permanently screened out. The respondents submit that no such document exists.

11Accordingly, it is not necessary for the Tribunal to issue any orders with respect to these requested items that have already provided or do not exist.

Notebook records – Items 2, 3, 4 and 5

12The complainant submits that the documents sought are from T.P.S. employees or members who actually met or spoke with the complainant in the course of his 2003-2004 application. The respondents agree that the notebook records of the uniform officers from 2003-2004 are relevant and they have agreed to produce them. The respondents submit, however, that Maureen Carey did not keep notes, other than those already produced.

13The respondents also submit that any notebook records subsequent to December 2004 are irrelevant to the complaint, since the acts leading to the alleged reprisal and the complainant’s “permanent screen out” occurred prior to the end of December 2004. The respondents submit, in addition, any references to the complainant subsequent to the filing of his complaint in 2005 are subject to litigation privilege.

14In light of the parties’ submissions, the respondents are ordered to produce the requested notebook records of the uniform officers for the time periods requested prior to 2005.

Selection program, criteria and constables hired – Items 6, 7, 8, 9, 10 and 11

15With respect to these items, the complainant submits that he self-declared as “white” and “male” in his application, that use of that information to judge his quality as a candidate is specifically prohibited, and that he was advised that if he self-declared it would not be used against him. He submits he was then advised that the self-declared information was placing him in a category of lower consideration. The complainant also submits that the race and gender status of persons who competed directly against him is relevant to the question of “whether the T.P.S. was actually hiring persons who declared at all, and if so, in a way similar to” him.

16The respondents submit that the information requested in items 7 to 11, regarding police constables hired, is not relevant to the issue of reprisal that is before the Tribunal. With respect to selection program and criteria requested in item 6, the respondents submit that an outline of the constable selection process is available on the O.A.C.P. website and can be downloaded.

17I find that the documents and information sought in items 6 to 11 are not relevant to the issues before the Tribunal. The complainant’s request for production of the information in items 6 to 11 is denied.

Authorized hiring class numbers, constables charged and constables who did not complete the Ontario Police College course – Items 12, 13 and 15

18In support of his request for the information in items 12 and 13, the complainant submits that the respondents plead that permanent screen out decisions are usually made when background checks or the interview reveal something that makes the applicant clearly unsuitable for police work. He submits, further, that the respondents allege in their pleadings that the decision to permanently screen him out was made after Ms. Carey considered his entire application file, and determined that his background history was “troubling”.

19In my view, the complainant has not established how information concerning either the authorized hiring class numbers from 1992 to 2008, the number of candidates actually hired from 1992 to 2008, or the names of police constables who have been charged with a crime after hiring, is arguably relevant to the issues before the Tribunal. Similarly, I find that the complainant has not established how information concerning hired police constables who did not successfully complete the Ontario Police College course and who were discharged, resigned, or returned to a previous position within the T.P.S. is relevant to the issues in dispute. The complainant’s request for production of these items is denied.

Constables hired with offence records – Item 14

20The complainant requests a list of all T.P.S. police constables hired since 1992, who, at the time of hiring, had a record of either criminal or provincial offence(s). He submits that the corporate respondent has routinely hired as regular constables individuals who, unlike the complainant, have a record of criminal convictions. He submits further that, if no such person has been hired, the disclosure will be non-existent. However, if such persons have been hired, that fact goes to the question of whether the decision made in his case can be said to have been made without an intention to reprise.

21In response, the respondents deny the complainant’s allegation that the T.P.S. routinely hires persons with a record of criminal convictions. They submit that the complainant has provided no basis whatsoever for this allegation and that the complainant is clearly on a “fishing expedition”. They submit that the onus is on the complainant to provide some evidence to support the allegation beyond his personal belief and, without such evidence, the production request is improper. The respondents also submit that the request is both irrelevant and onerous. They submit that the applications of persons prior to 2007 are no longer available and a record search of successful applications from 2007-2009 would involve a manual pulling and review of over 700 files that are at least three years removed from the events in question.

22The complainant’s request appears to be speculative. I also find that the arguable relevance of evidence of individuals with offence records being hired to the issues in dispute, if such evidence exists, is tenuous at best. It is also my view that any potential arguable relevance would be seriously diminished by the passage of time between the alleged reprisal in December of 2004, which is at issue in this proceeding, and the time period of the available application records (2007-2009). I find, therefore, that the complainant has not established a sufficient nexus between any such information, should it be found to exist, and the issues in dispute before this Tribunal. Consequently, it would not be appropriate to require the respondents to undertake the onerous task of manually reviewing over 700 files in an attempt to gather any such information. The complainant’s request for production of this information is denied.

Reports and TPS Rules and Procedures – Items 20, 21, 22 and 23

23The complainant submits that these documents inform an understanding of the rationale for his complaints to the Chief of Police. He submits that an appreciation of his frustration with the process he was subjected to as a “lesser” candidate, is relevant to the issue of whether the decision to screen him out can be considered to have been a reasonable decision in the circumstances.

24The respondents, on the other hand, submit that these documents are not relevant to the issue before the Tribunal. They also submit that the “Ferguson Report”, the “Police Service Board Report From the Race Relations Joint Working Group”, and the “Policing a World within a City” documents are all available on the T.P.S. website. They submit that the latter two documents relate to issues of race relations and diversity in policing and submit that the complainant’s request appears to be linked to his belief that he was considered a “lesser” candidate on the basis of gender and skin colour. I have no submissions on the content of the Ferguson Report.

25These three documents are publicly available and, therefore, the complainant can obtain copies of these materials independent of this process. The complainant’s request for production of these documents is denied.

26With respect to the request for production of the T.P.S. Rules and Procedures, the respondents submit that the complainant has not articulated a clear reason why he has requested these, why he has requested every procedure, or how the Rules and Procedures might be relevant to the issue before the Tribunal. They submit, therefore, the request is vague and overbroad. They also submit that, if the complainant’s knowledge of these Rules and Procedures somehow provides an understanding of the rationale for his complaint to the Chief of Police, as seems to be his submission, then this information is already within the knowledge of the complainant.

27I find that the complainant has failed to demonstrate a nexus between the documents sought and the issues before this Tribunal that would warrant an order for production in the circumstances.

Municipal addresses – Items 24 and 25

28The complainant requests the municipal addresses shown on the applications of all police constables hired by the T.P.S. since 1992 and a list of all current municipal home addresses of T.P.S. constables. He submits that these requests go to the question of whether the complainant’s place of residence is a reasonable and bona fide requirement of the job.

29It is not clear from the complainant’s submissions how the question of whether place of residence is a reasonable and bona fide requirement of the job may be relevant to the reprisal issue before the Tribunal. Further, as the respondents previously submitted, they have not maintained applications prior to 2007. Any potential relevance of the municipal addresses of applicants is seriously diminished by the passage of time between the alleged reprisal in December of 2004, which is at issue in this proceeding, and the available application records (2007-2009). The complainant has also not established how the current municipal addresses of constables are arguably relevant to the issues in dispute. The complainant’s request for production of this information is denied.

Diversity program and agreement with Commission – Items 26, 27 and 28

30The complainant submits that these documents address hiring meant to ameliorate historical patterns of invidious discrimination against targeted groups and it is unlikely that they seek to justify new patterns of discrimination against white males. The respondents submit, and I agree, that these documents are not relevant to the issues before the Tribunal.

Phone records – Item 29

31The complainant submits that the phone records of incoming and outgoing calls of the personal respondent and three others would tend to either support or contradict the complainant’s relation of the facts of this matter, from the time that he was invited to apply in 2003, until the time of the respondents’ response to the original complaint, in July 2005.

32The respondents submit that current records of telephone calls date only from January 1, 2005. They submit that, since the alleged act of reprisal occurred in December 2004, telephone records after that date are irrelevant. Moreover, even if such records were produced, they would reveal only the telephone numbers called on certain telephones and would not show who made a call or what the content of any conversation was. They submit the production of the existing telephone records will not provide more or better information than is already available in the file records and notes which the respondents have produced or are willing to produce.

33Having considered the parties’ submissions and the materials filed, the request for telephone records appears overly broad. I am not able to find that production of telephone records from 2005 may provide arguably relevant evidence in relation to the issue of reprisal before the Tribunal which allegedly occurred on December 3, 2004. Accordingly, the complainant’s request for production of the telephone records is denied.

ORDER

34The Tribunal makes the following Order:

Within 10 days of the date of this decision, the respondents shall provide directly to the other parties the requested notebook records of the uniform officers for the time periods requested prior to 2005.