Rutt v. Orangeville Police Service, 2011 HRTO 1610

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Curtis Rutt

Applicant

-and-

Orangeville Police Service, Mike Robinson, Daniel Maloney and Joseph Tomei

Respondents

-and-

Orangeville Police Association

Intervenor

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: August 29, 2011

Citation: 2011 HRTO 1610

Indexed as: Rutt v. Orangeville Police Service

WRITTEN SUBMISSIONS BY

Curtis Rutt, Applicant ) Self-Represented

Orangeville Police Service, ) Mike Robinson, Daniel Maloney ) William Anderson, Counsel and Joseph Tomei, Respondents )

Orangeville Police Association, Intervenor ) Katherine Rowen, Counsel

BACKGROUND

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of association with a person identified by an enumerated ground and reprisal or threat of reprisal with regard to employment.

2On June 20, 2011, the affected party, Orangeville Police Association, submitted a Request to Intervene (Form 5) to the Tribunal.

3The respondents filed a Response on June 23, 2011, requesting among other things that the Application be “stayed” pending the outcome of other legal proceedings:

a) A union grievance filed by the Orangeville Police Association on the applicant’s behalf;

b) An outstanding request by the applicant for a review pursuant to section 25 of the Police Services Act, R.S.O. 1990, c. P.15; and

c) Resolution of charges against the applicant pursuant to the Police Services Act.

The respondents made no submissions with regard to the request to intervene.

4The Applicant filed a Reply on August 8, 2011, objecting to the deferral of the Application. The Applicant made no submissions with regard to the request to intervene.

ANALYSIS

Request to Intervene

5The Orangeville Police Association (the “OPA”) is seeking to intervene on the basis that it has an interest in the outcome of the litigation. The Union represents the applicant in the workplace as the applicant’s exclusive bargaining agent. In its submissions OPA notes that:

…The Association has carriage of all grievances under the collective agreement and, as such, possesses information, knowledge, and experience which relates directly to the handling of the grievance of Cst. Sean Cole, which the Applicant claims is the basis for his discrimination under the Code. As the intervenor, the Union will be able to provide assistance to the Tribunal that will not otherwise be provided.

6The Tribunal’s Rule 11.1 provides that:

The Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

7As stated by the Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, and Woito v. Marianhill, 2011 HRTO 1437:

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.

8Pursuant to Boyce and Woito, above, the Tribunal’s established practice where an applicant is a member of a bargaining unit is to grant intervenor status when requested by the union; see other very recent examples: D.R. v. Upper Grand District School Board, 2011 HRTO 1187, Oxley v. Vaughan (City), 2011 HRTO 1295, Yonis v. Newalta Corporation, 2011 HRTO 1352, and Pak v. Toronto (City), 2011 HRTO 1356.

9Having reviewed the Application, Response and Reply, it appears that OPA has a significant interest in the allegations and that its members may be impacted by the potential factual findings. The union may be able to offer a unique perspective on the facts and be in a position to provide specific information about the facts and issues different from that which will likely be put forward by the parties. As such, I believe that OPA’s participation may assist the Tribunal in achieving a more fulsome understanding of the factual and legal issues.

10In sum, I find that it would be fair, just and expeditious to permit OPA to intervene in this Application.

Deferral

11After a review of the submissions by the applicant and intervenor I note that the union grievance filed by OPA on behalf of the applicant and the review pursuant to section 25 of the Police Services Act are not proceeding. I will therefore only concern myself with the issue of the outstanding charges against the applicant pursuant to the Police Services Act.

12In his submissions of August 8, 2011, the applicant states with regard to the deferral issue that:

The Police Services Act hearing to which the Respondents refer…is a proceeding that is still in progress. The Applicant believes that these charges will be dismissed based upon an abuse of process by the Orangeville Police Service. The Applicant has a concern that after the dismissal of these charges, there will be yet another Police Services Act investigation with more accusations that are false and the laying of further trumped-up charges….

The Applicant is also concerned that if the Tribunal grants a deferral, proceedings such as the Police Services Act investigations will continue indefinitely, and the Applicant may never have the opportunity to file a request to proceed to the Tribunal under Rule 14.4.

13Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. The Tribunal has deferred applications where there are ongoing criminal proceedings involving the parties, where the applicant or the respondent was the party who was criminally charged: Miller v. Bernard, 2010 HRTO 1488, Bernard v. London Transit Commission, 2010 HRTO 1829, Hadley v. J.A.C.S. Cartage, 2010 HRTO 516, and Young v. Arbor Memorial Gardens, 2011 HRTO 425. Although in the present case the applicant is charged under a provincial statute and not the Criminal Code of Canada, I find that the above cases are analogous.

14While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, at para. 10, and Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

15I note that one of the incidents of reprisal alleged by the applicant is the respondents’ actions in initiating the investigation which led to Police Services Act charges being laid against the applicant. See paragraph 31 of the “Chronology of Events” contained in the Application. Obviously the decision rendered as to the validity of those charges may have a bearing on the issue of reprisal as alleged in the Application. I therefore find that there is a not insignificant overlap between the allegations contained in the Application and the subject matter of the Police Services Act charges.

16While the applicant may be frustrated with the length of time the Police Services Act prosecution has taken, this is not a sufficient reason to proceed with the Application in all the circumstances. See Law v. Organizational Solution, 2010 HRTO 1158, Rego v. Mount Sinai, 2011 HRTO 458, and Rodrigues v. Toronto (City), 2011 HRTO 1307.

The applicant’s objection that there may be further Police Services Act charges laid which will, in turn, further delay the Application also cannot succeed. At this point, this objection is speculative at best.

17I find it appropriate to defer this Application pending the resolution of the Police Services Act prosecution. There are issues raised by the Application that go beyond those that will be litigated pursuant to the Police Services Act. However, given the factual overlap between the two proceedings and the fact that the Police Services Act prosecution may have a bearing on some of the issues in the Application, the rational and orderly litigation of the various issues between the parties favours deferral.

ORDER

18The Orangeville Police Association is granted intervenor status and the style of cause is amended accordingly. The extent and the nature of the Union’s participation in the proceeding will be determined by the adjudicator hearing the matter.

19The Application shall be deferred pending the conclusion of the Police Services Act prosecution begun in 2010 and presently underway. The Tribunal directs the parties’ attention to Tribunal Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

20Should the Application proceed, it is open to the respondents to make a Request for Order During Proceedings (Form 10) to remove all or some of the personal respondents as suggested in the Response.

21I am not seized of this matter.