Bridget Glen v. York Regional Police and Mark Stevens, 2010 HRTO 2512

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 Date: December 17, 2010 Citation: 2010 HRTO 2512 Indexed as: Glenn v. York Regional Police

WRITTEN SUBMISSIONS

Bridget Glen, Applicant ) Beth Symes, Counsel Mark Stevens, Respondent ) Joanne Mulcahy, Counsel

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 affected party in respect of the Application.

2Both respondents requested and received an extension of time to respond to the Application.

3The corporate respondent indicated in its Response that the personal respondent was “charged with two counts of Discreditable Conduct” under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”), apparently on October 7, 2008. Copies of the Notices pertaining to the disciplinary charges, filed by the respondents, allege first that the personal respondent, between March 1 and March 14, 2008, acted in a “disorderly manner during an off duty attendance at the home of” the applicant, and secondly that the personal respondent “acted in a manner prejudicial to discipline or likely to bring discredit upon the reputation of” the corporate respondent “by making remarks to members under your command which questioned the trustworthiness of” the applicant, on April 23, 2008. The PSA hearing, which had previously been adjourned at the request of the personal respondent, was scheduled for October 13 and 14, 2010.

4The personal respondent filed a brief Response, denying any discrimination or harassment of the applicant on any grounds, and any reprisal or threat of reprisal. In his Response, the personal respondent admitted “that he attended at the Applicant’s home on or about [the alleged date].” He went on to deny that “any sexual harassment and assault or solicitation of the Applicant took place”. He also denied “that he engaged in any advances to the Applicant”. The personal respondent's Response went on to state that he “disagrees with the Applicant’s allegations of what took place in the weeks after March 15, 2008 or of what took place on the parades on April 23, 2008”.

5In his Response, the personal respondent requested that the allegations should be dismissed pursuant to section 34(1) of the Code, and stated 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 requested that the Application be deferred to the hearing of charges against himself that have been brought under the PSA. Finally, the personal respondent “reserve[d] the right to make a further response after the conclusion of the Police Services Act proceedings if the application is not dismissed for being untimely”.

6An Interim Decision, 2010 HRTO 1916, dismissed the requests to dismiss for delay and to defer the Application. As noted in the Interim Decision, the personal respondent had stated that the applicant would be a witness in the PSA proceedings who is “not entitled to disclosure”, and that he would be prejudiced if required to put in a more detailed Response to this Application before those proceedings were concluded. No further information or argument concerning why prejudice might arise in the circumstances was made by either respondent, and no finding was made in the Interim Decision that the personal respondent would be prejudiced by filing further details in these circumstances. However, the Interim Decision allowed an extension of time in the following terms at paras. 30-31:

Having 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.

Rule 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.

7By letter dated November 18, 2010, the personal respondent requested another extension of time to file a further Response. The letter indicated that the PSA hearing referred to in the Interim Decision did not take place on October 13 and 14, 2010, the dates scheduled. Counsel for the personal respondent indicated in the letter that the personal respondent had made a request for “further disclosure from the prosecutor as a result of new information” on July 7, 2010, and despite sending two more requests concerning disclosure, no response from the prosecutor was received. The PSA hearing was adjourned. Counsel for the personal respondent indicated that, as of the date of the letter, “[t]here still remains outstanding disclosure. The personal respondent's request is that he be permitted to file a response 30 days after the conclusion of evidence at his PSA hearing”. Once again, there was no argument or further detail given to support the assertion that the respondent would be prejudiced by filing any further information to add to his earlier Response to the Application.

8By letter dated November 22, 2010, the applicant opposes the personal respondent's Request. The applicant alleges that the disclosure dispute referred to in the November 18 letter concerned a demand for disclosure of “all documents relevant to this Application”. The applicant notes that the personal respondent’s letter was sent only one day before the deadline given in the Interim Decision, and points out that deadlines have already been extended in this matter and that the request to defer was dismissed. Counsel to the applicant also stresses that it has been over two years since the filing of charges under the PSA, and that there is no indication of when the new PSA hearing date will be. The applicant alleges that the personal respondent is “attempting to hijack both the human rights and the PSA processes”. By letter dated November 30, 2010, counsel for the personal respondent vigorously denies the hijacking characterization. The letter neither confirms nor denies that the disclosure issue involves information related to this Application, and noted that “[t]here are some items of disclosure that will be litigated”.

9Section 40 of the Code states that the Tribunal “shall dispose of applications… 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 application”. Fairness and justice require a balancing of the interests of all parties, in this case in complicated factual circumstances. The Tribunal’s Rules of Procedure contemplate waiving or varying procedural requirements if appropriate (see Rules 1.1 and 5.2).

10I agree that the request of the personal respondent, if granted, would create an effective deferral to the PSA proceeding, which has already been denied. While the date of the PSA hearing was one consideration, the denial of the deferral did not turn on the date of the hearing. Beyond the assertion of prejudice, the personal respondent has stated only that the applicant will be a witness in the PSA proceedings who is “not entitled to disclosure”. No authority was cited for this assertion and no further information or argument was given. The personal respondent’s concern about disclosing further details in an amended Response presumably cannot relate to his “list of witnesses and any related witness information”, as this information is not disclosed to any other party at this early stage (see the Tribunal’s Rules of Procedure, Rule 8.6).

11In the absence of information or argument in regard to prejudice, the Tribunal has no information against which to balance the interests of the applicant in proceeding with the “fair, just and expeditious resolution of the merits of the application”.

12In the circumstances, I will rescind the order that the personal respondent, by November 19, 2010, file the fuller Response he indicated that he wished to file, which has not been and now cannot be complied with. All parties are represented by counsel. If the matter goes to a hearing, it is open to any party to request orders and make submissions in regard to disclosure and any issue of procedural fairness, including full argument concerning any alleged prejudice.

13All parties have indicated willingness to attempt mediation. In all the circumstances, fairness, justice and expedition indicate that the file proceed to the Registrar to be scheduled for mediation in the usual course.

14I am not seized of this matter.