A.F. v. Durham Regional Police Services Board, 2010 HRTO 2462

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A. F. by his litigation guardian S. F.

Applicant

-and-

Durham Regional Police Services Board, Jeff Tucker, Jennifer Kelloway, Patrick Waters, Thomas Chambers, Matthew Flower and Jason Fisher

Respondents

B E T W E E N:

S. F.

Applicant

-and-

Durham Regional Police Services, Durham Regional Police Services Board, Robert Aukema and Thomas Chambers

Respondents

A N D B E T W E E N:

A. F.

Applicant

-and-

Durham Regional Police Services, Durham Regional Police Services Board, Robert Aukema and Thomas Chambers

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: December 13, 2010

Citation: 2010 HRTO 2462

Indexed as: A.F. v. Durham Regional Police Services Board

WRITTEN SUBMISSIONS BY

A.F. and S.F., Applicants ) Sunil Gurmukh, Counsel

Durham Regional Police Services Board, Durham Regional Police Services, Jeff Tucker, Jennifer Kelloway, Patrick Waters, Thomas Chambers, Matthew Flower, Robert Aukema and Jason Fisher, Respondents ) Sheila Schweizer, Counsel

1This Interim Decision deals with three Applications. The first is an Application made by A.F. under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) dated June 25, 2009, with the underlying complaint having been filed with the Ontario Human Rights Commission (the “Commission”) on March 14, 2008 (the “transitional Application”). The second is an Application made by A.F. under s. 34 of the Code dated April 20, 2010. The third is an Application made by A.F.’s mother, S.F., under s. 34 of the Code also dated April 20, 2010. They will be referred to in these reasons as the “section 34 Applications”.

2This Interim Decision will address the Request made by the respondents to dismiss certain allegations raised in the section 34 Applications on the basis of delay, and the Request by the applicants to consolidate all three Applications and have them heard together.

Delay

3The respondents take issue with two allegations made in both of the section 34 Applications, which relate to incidents that are alleged to have occurred more than one year prior to the filing of those Applications.

4The first incident is alleged to have occurred on October 12, 2007, some two and a half years prior to the filing of the section 34 Applications, when it is alleged that two officers came to the home of A.F. and S.F. and rang the doorbell. This incident clearly is outside the one-year period as set out in s. 34(1) of the Code.

5The applicants take the position that this incident forms part of a series of incidents that extends to and includes the subsequent incidents alleged in the Applications, which do fall within the one-year period. In interpreting the meaning of “series of incidents” in s. 34(1)(b) of the Code, this Tribunal repeatedly has held that a gap of more than one year between incidents in a series would in most cases interrupt the series. See for example Chintaman v. Toronto District School Board, 2009 HRTO 1225 at para. 11.

6In the instant case, there is a gap of some 17 months before the next alleged incident, which is alleged to have occurred on March 15, 2009. In addition, this Tribunal has held that there must be some nexus or connection between the incidents in order for them to form a “series”, and they can’t merely be isolated incidents.

7In the instant case, the next alleged incident in March 2009 relates to an occasion where there appears to be no dispute between the parties that police officers came to the home of S.F. and A.F. in search of another individual who did not reside at the home but was visiting, in order to arrest this individual for theft. The issue arising out of this alleged incident as it relates to the applicants is that it is alleged that one of the officers came into the home uninvited and refused to leave when asked to do so.

8In my view, the nature of this alleged incident is not sufficiently connected to the nature of the October 2007 incident such that it properly could be considered to form part of a series. The essence of the allegation as it relates to the October 2007 incident is that A.F. was being unfairly and discriminatorily targeted for unwarranted police attention. The next incident alleged in the section 34 Applications of this nature is the alleged incident on September 24, 2009, when it is alleged that A.F.’s car was followed by the personal respondent Constable Chambers. This, in my view, creates a gap of almost two years between incidents that could possibly be regarded as forming part of a “series” of incidents within the meaning of the Code. Accordingly, I find that the October 2007 incident does not form part of a series of incidents that extends to and includes an incident that is within one year of the filing of the section 34 Applications.

9As a result, I next need to consider whether the applicants have established that their delay in raising the October 2007 allegation was incurred in good faith and that no substantial prejudice has been caused to the respondent as a result of the delay.

10In relation to the requirement to establish that the delay was incurred in good faith, this Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay. See Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.

11In the instant case, the applicants have provided no explanation for the delay in raising the October 2007 allegation. Indeed, the complaint underlying the transitional Application was filed with the Commission in March 2008 and includes reference to an incident that had allegedly occurred approximately one week earlier, on October 6, 2007. No explanation has been provided by the applicants as to why one allegation arising from October 2007 was raised in the complaint, while another allegation from October 2007 was not raised and is only now being raised in the section 34 Applications.

12As a result, I find that that the applicants have not provided a reasonable explanation to justify their delay in proceeding with their allegations in relation to the October 12, 2007 allegation, and as such I do not find that the delay was incurred in good faith. As both good faith and a lack of substantial prejudice must be established in order to justify a delay beyond the one year period, it is not necessary for me to consider the question of whether any substantial prejudice would be caused to the respondent. The allegation relating to the October 12, 2007 incident (which may have occurred on October 19, 2007) is dismissed for delay.

13The next incident alleged in the section 34 Applications with which the respondents take issue is the March 15, 2009 incident already referenced above. This incident occurred 13 months prior to the filing of the Applications. The next alleged incident in the Applications occurred on September 24, 2009 (or perhaps on September 23, 2009), some six months later. This is not so long a gap as to break any series. However, as stated above, I find that the March 15, 2009 incident cannot be regarded as part of a “series” of incidents that extends to and includes the September 2009 and subsequent incidents, as the March 15, 2009 incident is of a different nature than the subsequent incidents. All of the subsequent incidents relate to events where it is alleged that A.F. was unfairly and discriminatorily subject to unwarranted police attention, by having his vehicle followed, by being stopped in his vehicle or by having police cars drive by his home. I find that these subsequent incidents are different in nature that the incident on March 15, 2009, where police officers came to the home of A.F. and S.F. looking for another individual to arrest him for theft.

14This raises the question of whether the applicants have provided any good faith explanation for the delay. I am aware from the materials that the March 15, 2009 incident was the subject of a complaint filed by S.F. under the Police Services Act, and that a report was issued by the Durham Regional Police Service dismissing the complaint on September 10, 2009. I also am aware from the materials that S.F. appealed this decision to the Ontario Civilian Police Commission (“OCPC”), which recently remitted the matter back to the police service for further investigation by letter dated September 2, 2010.

15In my view, the fact that S.F. pursued the March 15, 2009 incident under the Police Services Act provides a sufficient explanation for the delay in raising the incident in an application before this Tribunal to satisfy me that the delay was incurred in good faith. I further find that no substantial prejudice has been caused to the respondents, as they have been aware of the applicants’ allegations regarding the March 15, 2009 incident since S.F. filed her complaint under the Police Services Act on March 17, 2009 and have taken steps to investigate the allegations and preserve relevant evidence. Accordingly, I deny the respondents’ request to dismiss the March 15, 2009 incident for delay.

Consolidation

16As stated above, the applicants have requested that all three Applications be consolidated and heard together. The respondents oppose consolidation.

17The test for consolidation has been set out in Persaud v. Toronto District School Board, 2008 HRTO 25, as follows:

I adopt from the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (C.H.R.T.), the following factors that should be considered in the context of whether to consolidate or hear two proceedings together:

1. The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

2. The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

3. Whether there are common issues of fact or law.

18The transitional Application arises out of certain events which occurred on September 26, 2007, when the applicant was arrested for trespass after being asked by a police officer to leave the property of an outdoor shopping plaza. In the course of the arrest, a physical struggle ensued and a taser ultimately was applied to the applicant. In addition to being charged with trespass, the applicant also was charged with assault to resist arrest and breach of the terms of his probation. The trespass charge was subsequently withdrawn by the Crown, and the applicant was acquitted on the other charges. The transitional Application also raises an allegation about an incident on October 6, 2007, when it is alleged that two police officers came to the door of A.F.’s home and made certain alleged comments about A.F.’s mother.

19As discussed above, the remaining allegations raised in the section 34 Applications relate to the incident in March 2009, where police officers came to the applicants’ home and arrested a friend of A.F. for theft, and subsequent incidents from September 2009 to January 2010, where it is alleged that A.F. was targeted by the police for unwarranted attention.

20I have several concerns about consolidating the transitional Application with the two new Applications. My first concern relates to the significant gap in time between the events at issue in the transitional Application, which relate to the fall of 2007, and the events at issue in the new Applications, which relate to one incident in March 2009 (a year and a half later) and several incidents from the fall and winter of 2009-2010 (some two years later). In my view, the temporal distance between these events makes it difficult for me to conclude that there are common issues of fact sufficient to warrant consolidation.

21Second, I am concerned not only that the parties are not the same, but that the police officers involved are different with the sole exception of Constable Chambers, who was one of several officers involved in the main incident underlying the transitional Application and is alleged to have been involved in one incident from the section 34 Applications in September 2009. In my view, consolidation would present minimal advantages in terms of cutting down the number of appearances required to be made by the witnesses.

22Third, I am concerned that the transitional Application and the section 34 Applications are at very different stages of the human rights process. The transitional Application is based on a complaint filed with the Commission in March 2008, over two and a half years ago. Since being transitioned into an Application before this Tribunal in June 2009, the matter has proceeded through exchange of pleadings and disclosure, was originally scheduled for hearing in September 2010, has been the subject of an Interim Decision, 2010 HRTO 1508, and a Case Assessment Direction, and is now scheduled to proceed to hearing on February 23, 2011. As a result, the transitional Application is ripe for determination by this Tribunal.

23In contrast, exchange of pleadings has just been completed for the section 34 Applications. All parties have agreed to mediation of the section 34 Applications, so that will need to be scheduled. There also are a number of unresolved preliminary issues raised by the respondents, including whether the section 34 Applications make out a prima facie case, whether S.F. has standing to raise allegations relating to the alleged treatment of her son, and whether the allegation relating to the March 2009 incident already has been appropriately dealt with through the Police Service Act process. In this last regard, given that the OCPC has remitted S.F.’s complaint back to the police service for further investigation, it may be some time before the issue regarding whether the March 2009 incident has been appropriately dealt with is ripe for determination. At this early stage in dealing with the section 34 Applications, no production of documents has yet taken place and no hearing date has been set.

24In my view, as the allegations in the transitional Application have been outstanding now for over two and a half years since the original complaint was filed and as the matter is ripe for determination and the hearing date already has been scheduled for February 23, 2011, it makes little sense to me to consolidate the transitional Application with the section 34 Applications, which would have the effect of cancelling the existing hearing date and further delay resolution of the long-outstanding allegations raised in the transitional Application.

25I acknowledge the caselaw of this Tribunal which has indicated that an allegation of reprisal in a subsequent application is a factor that favours consolidation with an earlier application which is alleged to be the basis for the reprisal. However, in my view, that is only one factor to be considered in the context of the overall picture. For all of the reasons previously stated, I do not believe that the fact that the section 34 Applications allege reprisal for the filing of the earlier complaint is sufficient to overcome the other concerns I have expressed, which mitigate against consolidation.

26For all of these reasons, the request to consolidate the transitional Applications with the section 34 Applications is denied, and the transitional Application will proceed to hearing as scheduled on February 23, 2011.

27With regard to the section 34 Applications, as both of these Applications arise out of the same incidents, I find that it does make sense to order that the section 34 Applications be consolidated and heard together.