Lawrence v. Toronto Police Services Board, 2010 HRTO 161

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Collin Lawrence

Applicant

-and-

Toronto Police Services Board and William Blair

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: January 25, 2010

Citation: 2010 HRTO 161

Indexed as: Lawrence v. Toronto Police Services Board

1This is an Application filed on May 15, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of services because of race, colour, ancestry, place of origin, ethnic origin, sex and age.

2The applicant alleges that he was subjected to racial profiling when the vehicle he was driving was stopped, he was threatened with a Taser and he and his vehicle were searched by three officers.

3The respondent, Toronto Police Services Board (“TPSB”), filed a Response in which it denied responsibility and liability for the conduct of individual officers and sought to have the Application against it dismissed. The Tribunal issued an Interim Decision, 2009 HRTO 1645, in which it ruled that the issue of liability of the TPSB could not be addressed on a preliminary basis and directed that the Application proceed in the normal course.

4The applicant has subsequently filed a Request for Order During Proceedings in which he seeks to add William Blair, Chief of Police for Toronto, and four police officers, Scott Aikman, William McGarry, Graziella Creszenci and Marc Lefebvre, as parties to this Application. The Tribunal has received a Form 11 in response to the applicant’s Request from the proposed respondents. In it, the Chief of Police consents to the request that he be added as a respondent and the remaining individual respondents oppose the request that they be added as respondents. The Tribunal has not received a Form 11 from the TPSB. This Interim Decision addresses the request to add personal respondents.

5In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal addressed the question of whether to add a respondent and set out a number of considerations:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

The application of the first stage involves considering whether there are allegations made in the Application or amendments sought to it that could lead to a finding that the Code was infringed. At the second stage, the Tribunal applies the Persaud factors, which focus in most cases on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the application is allowed.

6In the present Application, there are allegations which, if proven, could support a finding that the proposed respondents violated the Code.

7In the Form 11 filed on behalf of all the proposed respondents, William Blair, the Chief of Police, confirms that the Chief sets and enforces police procedure, that institutional responsibility for the actions of the individual officers rests with the Chief and that the Chief is “effectively, the corporate respondent who accepts responsibility for the actions of the officers, can respond to any production requests and will comply with any order that may eventually be made by the Tribunal”.

8Given the consent of the Chief of Police and considering the position taken by the TPSB regarding liability and responsibility for the conduct of individual officers, it is appropriate to add William Blair as a respondent in this Application.

9In support of his request to add the individual officers as respondents, the applicant states that he seeks letters of apology from the individual officers, the individual officers were described and mentioned in the original Application as he did not know their names at the time, and this request is being made early in the process. Having considered these arguments, in my view, there is no compelling reason for the individual officers to be added as respondents to this Application.

10As the Tribunal in Abdallah v. Thames Valley District School Board, 2008 HRTO 230, stated:

Historically, the jurisprudence of this Tribunal has generally declined to order parties to provide an apology on the basis that such orders are viewed as inappropriate or an ineffective remedy and raise potential freedom of expression concerns; see summary of caselaw in Turnbull v. Famous Players, (2001) 2001 CanLII 26228 (ON HRT), 40 C.H.R.R. 333 at para. 264.

11Given the above, the request for apologies from the individual officers is not a strong consideration in favour of adding them as parties. All the remaining remedies being sought by the applicant are within the power of the institutional respondents to give effect to if ordered by the Tribunal. Further, applying the other factors used to determine whether respondents ought to be removed outlined in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 and Persaud v. Toronto District School Board, 2008 HRTO 31, weigh against adding the individual officers as parties.

12In the circumstances of this Application, the Tribunal does not find it appropriate to add the individual officers as parties.

13Accordingly, the request to add William Blair is granted and the request to add the individual officers, Scott Aikman, William McGarry, Graziella Creszenci and Marc Lefebvre, as parties to this Application is denied.

14William Blair is directed to file a Response within 35 days of receipt of this Interim Decision. The applicant may file a further Reply in accordance with the Rules.

15I am not seized.