HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bridget Glen
Applicant
-and-
York Regional Police and Mark Stevens
Respondents
- and-
York Regional Police Association
Intervener
INTERIM DECISION
Adjudicator: Judith Keene
Indexed as: Glen v. York Regional Police
1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination and harassment with respect to employment because of sex, and reprisal, on March 25, 2010. The Application was sent to the respondents and to the York Regional Police Association, the bargaining agent for both the applicant and one of the respondents, as an interested party in respect of the Application.
2All parties are represented by counsel. All parties have indicated willingness to attempt mediation.
3Both respondents requested and received an extension of time to respond to the Application. Each respondent filed a Response on July 9, 2010.
4The personal respondent denies any discrimination, harassment or reprisal. His Response requests the dismissal of the Application against himself on the basis that the allegations against him are dated March 15, 2008 and April 23, 2008. The personal respondent takes the position that the allegations refer to conduct that allegedly occurred more than one year prior to the filing of the Application and should be dismissed pursuant to section 34(1) of the Code, and that an extension should not be granted under section 34(2) because the personal respondent would suffer substantial prejudice. In the alternative the personal respondent requests that the Application be deferred to the hearing of charges against himself that have been brought under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”).
5The corporate respondent’s Response denies that it has breached the Code. The corporate respondent seeks dismissal of the allegations of sexual harassment against the personal respondent on the basis that the events are alleged to have taken place more than a year before the filing of the Application. The corporate respondent admits that the allegations of reprisal against it could be considered timely, although it denies any reprisal.
6The York Regional Police Association has indicated that it has no firsthand knowledge and takes no position on the facts alleged by the applicant. However, the Association seeks to intervene to address procedural and remedial issues “that may affect the operation of the collective agreements or its members’ rights under those agreements. The Association seeks the right to make submissions on those issues and if appropriate to cross examine and lead evidence on those issues only”, while retaining “the right to expand the scope of its intervention should the issues raised by the application change during the course of the preceding”.
7The applicant has filed a Reply objecting to the deferral and the dismissal, and requesting that the intervention by the Association be limited to making submissions on the fashioning of systemic remedies. The Reply contains more detailed allegations concerning reprisal, discrimination and harassment
8This Interim Decision deals with the requests to dismiss for delay, the request to defer and the request to intervene.
The Request to Dismiss
9Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the Application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed:
34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
10The applicant’s primary position is that there have been a series of incidents initiated by the personal respondent that have comprised harassment and discrimination because of sex, and reprisal. She states that these have continued until after the date of her Application, and that therefore the one year time limit is not engaged.
11To briefly summarise, the Application alleges that the personal respondent, her direct supervisor at the relevant time:
- made an unannounced visit to the applicant's home on March 15, 2008, and sexually assaulted her after she asked him to leave;
- during the weeks following March 15, disparaged the applicant to her colleagues;
- on April 23, 2008 addressed to 6 PM and 7 PM parades, read aloud a typed statement disparaging the applicant, and stated “everyone who screws with me, I will screw with them right back; I’m a Sergeant and deserve respect”; and
- initiated various actions that could be seen to be reprisal.
12In her Reply to the request that the allegations against the personal respondent be dismissed, the applicant supplied more detail concerning her allegations of harassment and reprisal. Because the corporate respondent has conceded that allegations of reprisal against it could be seen to be timely, only the material relevant to the personal respondent will be reviewed here, although the applicant states that she has “continued to be subject to reprisals from both” the personal respondent and the corporate respondent, and gives further particulars of reprisal concerning the corporate respondent.
13The applicant alleges that the personal respondent has disparaged her to other officers in a way that has caused her to be shunned and ostracized. She particularizes these allegations: she states that, in or around August 2009, she was approached by an officer in 1 District, whom she had not met before and whose name she does not know. She alleges that this officer said “so you’re the one that was stirring up shit at 2 District”. She alleges that, shortly thereafter, she was approached by a Sergeant from 1 District (whom she is able to name) who also accused her of starting “trouble”. She states that similar remarks were made by another (named) officer in January of 2010. She states that, prior to these incidents she had discussed the incident with none of these officers.
14The applicant’s Reply also alleges that in November 2009, a Superintendent advised the applicant that, when she completes her Criminal Investigations Bureau training in 2010, she will not be able to work in 3 District (where the personal respondent was currently assigned), nor in 1 District, because the personal respondent “has already done enough damage to your reputation in those districts”, and that as a result, she would not be accepted by officers working in those Districts.
15If the merits of this Application are dealt with at hearing, the applicant will be responsible for establishing on the evidence that the alleged events occurred and form part of a series of incidents: see Pakarian v. Chen, 2010 HRTO 457. At a hearing, it could be open to the respondents to argue that the applicant has not established in evidence that the alleged later events occurred, and to raise the application of the time limit at that time. At this stage, I am satisfied that the applicant has alleged a series of attempts by the personal respondent to discredit her within the York Regional Police continuing after March 25, 2009, which is one year prior to the commencement of the Application. These are actions that, if proven, could be regarded as reprisal closely enough related to the original alleged incidents to be seen as “a series of incidents” for the purposes of s.34(1)(b). Accordingly, the requests to dismiss for delay are denied.
The Request to Defer
16The corporate respondent has not requested deferral.
17The personal respondent’s request to defer states that he faces proceedings under the PSA stemming from allegations made against him by the applicant. The corporate respondent confirms that the personal respondent was charged in October, 2008 with two counts of Discreditable Conduct, relating to the allegation of sexual harassment and assault of the applicant, and the incident of April 23, 2008, in which the personal respondent addressed the 6 PM and 7 PM parades. The corporate respondent states that an adjournment of the original hearing date was requested by the personal respondent and granted, and that the hearing is scheduled to be heard in October 2010.
18The personal respondent states that the hearing of these charges is set for October 13 and 14, 2010. He also states that the applicant is a witness in those proceedings who is not entitled to disclosure, and that he would be prejudiced if required to put in a detailed Response to this Application before those proceedings are concluded.
19The document issued under the PSA and relied on in support of the request identifies the alleged “misconduct” as follows:
Between March 1 and March 14 in the year 2008…you acted in a disorderly manner during an off duty attendance at the home of [the applicant]…
and
On the 23rd day of April in the year 2008… you acted in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the York Regional Police by making remarks to members under your command which questioned the trustworthiness of [ the applicant]…
20The applicant opposes the request to defer.
21The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party (Code s.45; Rule 14.1).
22The initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same facts and issues are being raised before another decision-maker with the authority to deal with issues arising under the Code. Applications before the Tribunal may raise facts or issues which overlap with those in other concurrent proceedings, but in which human rights issues are not clearly engaged. In those cases, in exercising its discretion to defer, the Tribunal will consider factors such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it. See Howard v. Halton Condominium Corporation No. 59, 2009 HRTO 966 at paras. 13-14.
23Clearly, the proceedings under the PSA will address only some of the allegations raised in the Application. However, it is also clear that the proceedings under the PSA are likely to deal with some of the factual matters relevant to this Application.
24The applicant states that the factual and legal issues in the PSA proceedings are distinct from this Application, and that the proceedings will not address whether the personal respondent violated the Code. Neither the corporate nor the personal respondent make any assertions concerning the likelihood that provisions of the Code would be considered in the proceeding under the PSA. It appears that no such argument could be raised by the applicant during these proceedings, as she is simply a witness, and has no status to make submissions.
25The applicant also states that none of remedies being sought in this Application can be awarded under the PSA.
26Finally, the applicant states that the personal respondent was charged on October 7, 2008, and that since then the proceedings have been repeatedly delayed and adjourned at the request of the personal respondent. She states that there is no guarantee that the proceedings will conclude in October 2010.
27As noted above, the corporate respondent has acknowledged that an adjournment of the original hearing date was requested by the personal respondent and granted. The request by the personal respondent does not speak to the adjournments but in regard to his request to dismiss; he notes difficult personal circumstances surrounding a car accident on December 31, 2009, which caused severe injuries to a family member, which may be relevant to any adjournment request that may have been made in 2010.
28Section 40 of the Code states that “the Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications”.
29In my view, this is not a case in which deferral is appropriate. The factual allegations at issue in the PSA proceedings form only a part of the allegations at issue in this Application. Based on the information filed, it appears to me that the tribunal dealing with the PSA proceedings is narrowly focused, and although that tribunal may have the authority to apply the Code, it is not clear that it would be necessary to do so in dealing with the allegations noted and issues identified in the initiating document. The application of the Code could not be raised by the applicant in those proceedings, as she is not a party. Finally, the PSA hearing date is set for October 14 and 15, 2010; there is only the smallest risk of inconsistent factual findings. See St. Louis v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1637.
30Having said the above, there is also a concern of fairness to the personal respondent in terms of the effect of this Tribunal's process on his efforts to prepare for his hearing on October 14 and 15, 2010. In order to file a complete Response to the Application, the personal respondent would be placed in a position in which he might disclose facts that might be related to his disciplinary hearing, but are not required to be disclosed prior to his disciplinary hearing.
31Rule 1 of the Tribunal’s Rules of Procedure gives the Tribunal a broad latitude to make procedural rulings in the interest of fair, just and expeditious proceedings. In this case, I will ask the Registrar to hold this Application in abeyance until October 18, 2010 and modify the usual requirements for the Response from the personal respondent. A full Response from the personal respondent must be filed by November 19, 2010.
REQUEST TO INTERVENE
32The Tribunal indicated, in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, that:
A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.
33As noted above, the applicant does not object to intervention by the York Regional Police Association. However, in response to the Association’s request to retain “the right to expand the scope of its intervention should the issues raised by the application change during the course of the preceding” and in view of the fact that the Association has indicated that it has no firsthand knowledge and takes no position on the facts alleged by the applicant, the applicant requests that the intervention by the Association be limited to making submissions on the fashioning of systemic remedies.
34Neither of the respondents filed a Response to the Request to Intervene.
35Obviously, whether a type of participation proposed by the intervenor is likely to be helpful depends on the circumstances of the case. While intervenor status is generally determined as a preliminary matter, the presiding adjudicator will generally be in the best position to decide issues such as whether the intervenor may call evidence, the scope of any such evidence, and the extent and scope of any submissions that the intervenor may be permitted to make: Miraglia v. University of Waterloo 2009 HRTO 468.
36I am satisfied that the Association has the requisite interest in this Application. The Association is granted leave to intervene. As is generally the case in Tribunal proceedings, this is without prejudice to the applicant’s and respondents’ ability to raise the scope of its intervention at a later date or at the hearing. Should the Application proceed to a hearing, the scope of the Association’s intervention will be determined by the adjudicator who has carriage of the hearing.
37I am not seized of this matter.
Dated at Toronto, this 21st day of September, 2010.
”signed by”______________
Judith Keene
Vice-chair