Roger Shallow v. Toronto Police Services Board, 2010 HRTO 1752

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roger Shallow Applicant

-and-

Toronto Police Services Board, Gail Shields, Paul Clarke, Michael Harnish, Rob Lyon, Arlene Duffy and the Toronto Police Association Respondents

INTERIM DECISION

Adjudicator: Judith Keene Date: August 25, 2010 Citation: 2010 HRTO 1752 Indexed as: Shallow v. Toronto Police Services Board

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on October 6, 2008. The Application alleges discrimination with respect to services on the grounds of race and colour. The Application was deferred pending the outcome of related criminal proceedings: 2008 HRTO 364.

2On July 22, 2010, the applicant's representative filed a Request for an Order During Proceedings (Request) asking to amend the Application to add the ground of reprisal, to add a claim for a financial remedy of $500,000, and to add additional respondents: the Toronto Police Association, and two named individuals whom the applicant asserts “were members of the Board of Directors for the Toronto Police Association at the material time”.

3The respondents acknowledged receipt but have not replied to the Request, requesting that a planned mediation be cancelled and rescheduled. The Toronto Police Association has been notified of the Request but has not responded. The time for responding to the Request has now elapsed.

Addition of an Allegation of Reprisal, and a Request for a Financial Remedy

4In Boldt-Macpherson v. The Hoita Kokoro Centre, 2008 HRTO 16, which dealt with an allegation of reprisal in addition to other requested amendments, the Tribunal laid out some of the factors considered when determining whether to allow an applicant to amend an application or add additional allegations including:

a. Whether the additional allegations flow from or form part of the continuum of facts of the original complaint,

b. Whether the allegations provide a useful context for considering the legal issues in the case,

c. The reasons for raising the allegations at this date,

d. The quality of the evidence to support the additional allegations,

e. Whether the amendment would occasion actual prejudice to the respondents so that a fair hearing on the issues could not be held, and

f. The impact of the proposed amendment on the course of the hearing and the other parties.

5The subject-matter of the Application is allegations concerning the conduct of several named police officers. In the Request, the applicant asserts that the Toronto Police Association has “engaged in a deliberate course of conduct designed to deter punish and belittle” the applicant “for having filed an Application against members of the Association”. The Request contains specific allegations as to actions taken by the Association, which allegedly include sending letters to the applicant's employer.

6It appears to me that the additional allegations flow from or form part of the continuum of facts of the original Application.

7The parties have agreed to attempt mediation, and a date for a hearing has not been set. I cannot see how anyone would be prejudiced by granting the applicant’s Request to amend at this stage. I am satisfied there is ample time for all parties to prepare for the hearing and to address the issues raised in the Application. Further, the respondents have not provided any arguments or evidence to support a claim of unfairness or prejudice. The Request to amend the Application to include the allegation of reprisal is granted.

8A decision to permit an amendment relating to remedy is not based on any assessment as to the appropriateness of the relief. It is open to a respondent to present evidence and argument concerning whether the relief claimed is connected to the substance of the application and whether it is an appropriate remedy given the circumstances of the case. As there is no apparent prejudice to the respondents in allowing the amendment, the Request to add the monetary claim is granted.

Addition of Respondents

9The applicant’s Request states that the individuals and entity he wishes to add “include[s]” the individuals named and the Association. For the sake of clarity, I note that this Interim Decision refers only to Dave Wilson, Douglas Corrigan, and the Toronto Police Association.

10The Tribunal, on its own initiative, or at the request of a party, may add parties to a proceeding if it appears that they may have infringed a right under s. 36 of the Code. The Tribunal may add a party in order to provide for “fair, just and expeditious” resolution of an application, under s. 1.7 of the Tribunal’s Rules of Procedure. As noted in Marchese v. Fortinos, 2009 HRTO 25, the Tribunal will not add a proposed party in a perfunctory manner or as a matter of formality. Rather, it will decide whether it is appropriate to do so based on the parties’ materials and arguments. A recent statement of relevant considerations is set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12:

(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?

11On a review of the written material filed in this matter to date, if a breach of the Code were ultimately found, the Toronto Police Association could, depending on the circumstances, be the subject of findings or a Tribunal order. The Association has not asserted that its addition as a respondent would be unfair.

12In respect of the individuals named, the applicant’s Request does not reveal a compelling reason to include them. There is no information as to what Mr. Wilson and Mr Corrigan are alleged to have done that, if proven, would amount to reprisal.

13The applicant’s Request to add the Toronto Police Association is granted. The applicant’s Request to add the named individuals is denied.

14I am not seized of this matter.