Reza Bahramzadeh-Germi v. Toronto Police Services Board, 2011 HRTO 1445

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Reza Bahramzadeh-Germi

Applicant

-and-

Toronto Police Services Board and William Blair

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: August 2, 2011

Citation: 2011 HRTO 1445

Indexed as: Bahramazheh-Germi v. Toronto Police Services Board

1The applicant filed this Application on January 29, 2010, alleging discrimination in the provision of services by the Toronto Police Services Board (the “Board”) on the basis of race, colour, ancestry, place of origin, ethnic origin and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision addresses a number of outstanding issues concerning that Application including: (1) the Board’s request to dismiss a portion of the Application for delay; (2) the Board’s Request to dismiss the Application on the basis that the applicant has filed a civil action dealing with the same allegations; (3) the applicant’s Request to add two respondents; and (4) the applicant’s Request for release of information.

Request to Dismiss for Delay

3In its Response to the Application, the Board objects to the inclusion of an allegation relating to an incident that the applicant states took place on July 28, 2008, almost exactly 18 months prior to the filing of his Application. It was not clear from reading the Application and subsequent Reply whether the applicant intended to rely on this incident and in an Interim Decision, 2010 HRTO 2189, I directed the applicant to clarify this (and, if necessary, make submissions on delay).

4The applicant wrote to the Tribunal on November 25, 2008, indicating that he included the July 28, 2008 incident as “background information only.” The applicant further clarified that he was relying only on the January 30, 2009 and July 2009 incidents as the allegations of discrimination. Given this clarification, it is not necessary to address the issue of delay as his Application is timely with respect to these two incidents.

Request to Dismiss under Section 34 (11)

5At the time it filed its Response, the Board was unaware that the applicant had initiated a civil action. It was served with the applicant’s Statement of Claim on January 13, 2011. The Statement of Claim alleges negligence and a “hateful and brutal arrest” concerning the July 23, 2008 incident and the events arising from that incident. (Although the date in the Application puts this incident as occurring on July 28, 2008, it is clear from the context that it is the same incident in both pleadings.)

6The Board brought a Request for Order During Proceedings (Form 10) requesting that the Tribunal dismiss the Application or strike out certain paragraphs from it on the basis that s. 34 (11) of the Code bars it from proceeding. Section 34(11) provides:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been finally settled.

7Section 46.1 of the Code provides:

(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

8Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action. See Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at para. 10.

9While the Board argues the applicant “has clearly pleaded the same facts as in the HRTO Application (other than the allegations involving office N. Smart)” it would appear that the Statement of Claim deals with the one issue the applicant has made clear he included in his Application only by way of background fact.

10To the extent that there is any overlap in the specific events pleaded, it would concern the January 30, 2009 allegation. In the Statement of Claim, the applicant alleges that he was required as to move from his apartment as a condition of his bail arising from the 2008 arrest. He indicates that he wound up in a shelter, where he was ultimately assaulted by another resident.

11The Application addresses this issue but the allegation concerning it is that the police did not arrest the person who assaulted him because the applicant is a member of a racialized community. This allegation is not reproduced in the Statement of Claim.

12The Statement of Claim does state that the applicant (Plaintiff) “attempted to file complaints” in 2008 and 2009 for the actions of the arresting officer from the 2008 incident and was rebuffed. None of these alleged attempts is particularized, so it is not possible to determine whether one of these attempts was the July 2009 incident detailed in his Application.

13In summary, while there is certainly overlap in the factual background to both the Statement of Claim and the Application, it would appear that each document rests on different legal theories and seeks remedies for different wrongs. Accordingly, there is no basis to apply s. 34(11) and the Board’s Request to dismiss on that basis is denied.

Request to Add Respondents

14On September 29, 2010, the applicant brought a Request for Order During Proceedings asking to add the Chief of Police (the “Chief”), William Blair, and one individual officer as respondents to his Application. This Request was deemed abandoned, but the applicant subsequently brought a new Request, which he served on counsel to the proposed respondents on July 8, 2011.

15Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. The Chief consented to the Request to be added and the Request to add William Blair is granted and the style of cause amended accordingly.

16The Chief and individual officer (N. Smart) oppose the applicant’s request to add the individual as a respondent to this Application. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

17In light of the above test, the applicant is directed to deliver to the respondents and Tribunal written submissions by August 15, 2011 in which he sets out why he believes the individual officer should be added as a respondent to his Application. Currently, his Request to add contains no submissions concerning this request. The Chief and Officer Smart are directed to deliver to the parties and the Tribunal any reply to the applicant’s submissions by August 22, 2011.

18In any event, there seems to be an outstanding issue with respect to the identity of this individual officer. The respondent Chief is directed to advise the Tribunal the full name and rank of the individual identified as Officer N. Smart. This information should be delivered to the parties and Tribunal by August 8, 2011.

19The addition of the Chief as a party respondent triggers his obligation to file a Response, but it would appear that the Chief would file a joint Response on behalf of himself and the individual officer in the event that the individual officer is subsequently added as a respondent. In light of the uncertainty concerning the addition of the individual officer, the Tribunal will grant an extension to the Chief to file his Response until 15 days after the determination of that issue by the Tribunal.

Request for Information

20The applicant wrote to the Tribunal on March 21, 2011 asking the respondent Board to release information in answer to the four questions he poses in this letter. This information relates to whether his alleged assailant at the shelter was arrested and convicted of any offence, as well as information about Officer N. Smart. The respondents oppose this Request on the basis of relevance and prematurity.

21I agree that the applicant’s request is premature as this matter has not yet been scheduled for a hearing (indeed, the Chief has not yet filed a Response). Once the Notice of Hearing is sent to the parties, it will trigger certain disclosure and production requirements pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure. These deadlines will be clearly set out in the Notice.

22If, after receiving the respondents’ disclosure of arguably relevant documents and documents on which they intend to rely in the hearing (as well as their witness lists), the applicant remains concerned that documents or information are missing, he may seek production at that stage.

23The applicant’s request for release of information at this stage is denied.

Orders

24In sum, I have made the following orders/directions:

a. The respondent Board’s request to dismiss a portion of the Application for delay is denied;

b. The respondent Board’s request to dismiss on the basis of s. 34(11) of the Code is denied;

c. The applicant’s request to add Chief William Blair as a respondent is allowed;

d. The respondent Chief is directed to provide to the parties and the Tribunal the full name and rank of the individual identified as Officer N. Smart by August 8, 2011;

e. The applicant is directed to provide to the parties and the Tribunal written submissions on the reasons why he believes Officer Smart should be added as a respondent to his Application by August 15, 2011;

f. The respondent Chief and Officer Smart are directed to provide by August 22, 2011 to the parties and the Tribunal their written submissions, if any, in reply to the applicant’s submissions on adding Officer Smart as a respondent;

g. The respondent Chief is directed to provide a Response to the Application 15 days after the Tribunal determines whether to add Officer Smart as a respondent; and

h. The applicant’s request for release of information from the respondent Board is denied.

25I am not seized of this matter.