Jeffrey Servos v. Brantford Police Services Board, 2011 HRTO 1705

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Servos Applicant

-and-

Brantford Police Services Board Respondent

interim decision

Adjudicator: Brian Cook Date: September 16, 2011 Citation: 2011 HRTO 1705 Indexed as: Servos v. Brantford Police Services Board

APPEARANCES BY / wRITTEN SUBMISSIONS

Jeffrey Servos, Applicant ) Self-represented Brantford Police Services Board, Respondent ) Seann McAleese, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed on March 9, 2011, and alleges discrimination in employment on the basis of disability.

2The applicant was employed as a police officer by the respondent Police Services Board. His employment ended effective February 28, 2009, when he resigned his employment as part of a plea bargain in a criminal court proceeding relating to the use of street drugs while on duty.

3When the Application was filed, the Tribunal issued a Notice of Intent to Dismiss on the grounds that the Application had not been filed within one year of the alleged discrimination in accordance with section 34 of the Code. After receiving submissions on this issue, the Tribunal issued an Interim Decision, 2010 HRTO 1857, which concluded that while the Application was not filed within one year, it was not plain and obvious that the delay was not incurred in good faith. For that reason, the Application was not dismissed at that time. The Interim Decision noted that it was not the Tribunal’s final ruling on the delay issue and that the issue could be reviewed if the respondent felt that the delay was not incurred in good faith. The respondent was directed to file a Response.

4The Tribunal Response Form invites respondents to request a dismissal of the Application without a full Response in certain circumstances, including when the applicant has signed a full and final release with respect to the same matter. The respondent made that request when it submitted the Response although it also provided a detailed account of the circumstances leading up to the end of the applicant’s employment.

5The applicant filed submissions opposing the Request to Dismiss, arguing that he resigned his employment under duress.

6The Tribunal then issued a Case Assessment Direction, dated November 30, 2010. The Case Assessment Direction noted section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties to make oral submissions. The Case Assessment Direction accordingly directed a one-day in-person hearing to determine whether the Application should be dismissed on the grounds that the applicant had signed a release and to deal with the duress issue.

7The hearing for this purpose was held on September 6, 2011. The applicant appeared and testified on his own behalf. A statement provided by Inspector Kent Pottruff was accepted as evidence without additional oral testimony. I questioned the applicant and Mr. McAleese cross-examined him. I heard submissions from the applicant and from Mr. McAleese on behalf of the respondent.

Issue

8On behalf of the respondent, Mr. McAleese clarified that the issue in this case is whether it would be an abuse of process to allow the Application to proceed given that the applicant had resigned his employment as part of a plea bargain process in a criminal matter.

9Pursuant to the Notice of Hearing and the Case Assessment Direction of November 30, 2010, the issue of whether the Application should be dismissed on the grounds of delay was not an issue before me at the hearing on September 6, 2011.

Background

10The applicant started his employment with the respondent in April 2001. The applicant sustained a non-work-related injury in 2004. He self-medicated using Oxycontin that he purchased on the street. On March 1, 2005, he took a medical leave from work and attended a rehabilitation facility for one month to deal with his drug use. The staff at the facility encouraged him to disclose his drug use to his employer. A police Inspector attended a meeting at the facility where the problem was disclosed. The applicant returned to work.

11He testified that he had no further discussion with his employer about his drug use until June 2006. At that time, he disclosed to a police Inspector that he had suffered a relapse and had been using street drugs again. The applicant was immediately suspended and arrangements were made for him to attend the Homewood Health Centre for treatment and drug counselling. He attended Homewood for about one month and then had after-care counselling. He remained in receipt of his full salary.

12The applicant returned to work on September 6, 2006, after signing a return to work agreement. The agreement stipulated that the applicant was to provide random urine samples for a period of two years, attend continuing counselling at Homewood and join Narcotics Anonymous. The uncontested evidence is that the applicant was never asked to provide a urine sample and was not required to join Narcotics Anonymous. He did attend Homewood for continuing counselling for a few months, going once a week. The applicant noted that the respondent gave him paid time from work to attend these sessions and also allowed him to use a police vehicle to get to and from treatment.

13At the time the applicant returned to work, charges were laid under the Police Services Act, R.S.O. 1990, c. P.15, relating to the applicant’s disclosure of his use of street drugs in the period prior to June 2006. The parties were not completely clear what became of those charges but it appears that the applicant was suspended without pay for a few days as a result of the charges.

14The applicant testified that at some time after he returned to work he expressed concern about the possibility of a further relapse. The applicant’s job involved driving a police cruiser by himself and responding to calls. In the course of doing this work, he came into frequent contact with drug users and dealers. In the period following the completion of the Homewood after-care program, the applicant asked if it would be possible to either re-assign him to an office job or to have a fellow officer with him in the car. He testified that a fellow officer was assigned for one shift but that it was determined that he did not require this accommodation. He did not pursue the matter because he felt that he was creating a burden on others and because it appeared that the employer did not really want to accommodate his request.

15In the course of his employment in the period after the return to work in June 2006, the applicant experienced some work-related stress. On one occasion he witnessed a woman being burned alive in a car after a train accident. On another occasion, he was pursuing a van in his cruiser. Another officer in another cruiser was also involved in the pursuit. He stopped the vehicle and got out of his car when the suspect started driving towards him. He fired his firearm at the van and the passenger in the van sustained a non-fatal injury. The Special Investigation Unit (SIU) investigated the incident and cleared him of any wrongdoing.

16The applicant testified that after this incident, he expected to be called for supportive debriefing as this is standard procedure when an officer is required to discharge a firearm in the line of duty. A session was scheduled but it was scheduled for a day he had booked off and was not re-scheduled.

17The applicant believes that, because of his history, his employer should have been particularly concerned about his stress levels especially after these traumatic incidents. He submits that his request to have another officer with him in the patrol car was a “cry for help” from a recovering addict who was exposed to drugs on a daily basis. He feels that his cry for help was ignored because of police culture and because his employer was not really interested in helping him, and was setting him up for failure so it could get rid of him.

18At some time in 2007, the applicant experienced a further relapse and started to again use street drugs. The applicant did not disclose this to his employer. However, the relapse came to the attention of the Brantford Police Services because of information provided by people who were arrested for drug-related offences and who implicated the applicant at the time of their arrest.

19The Brantford Police Services put a pin-hole camera in the applicant’s patrol car without his knowledge to monitor his activities. A GPS unit was placed on his private car, also without his knowledge, and he was placed under 24-hour police surveillance.

20On June 23, 2007, the applicant was criminally charged with possession of controlled substances. Charges were also laid under the Police Services Act.

21Further charges were laid on November 28, 2008, following further surveillance and he was incarcerated.

22The applicant retained Peter Brauti, a criminal lawyer, to represent him in relation to the criminal charges. Mr. Brauti entered into negotiations with J. North, the Crown Counsel assigned to the matter. On December 16, 2008, Mr. Brauti and Mr. North negotiated a plea bargain. Among other things, the bargain provided that in exchange for a lesser sentence, featuring a period of parole without further jail time, the applicant would resign his employment.

23The evidence of Inspector Pottruff is that he did have some discussion with Mr. North about the plea bargain. Mr. North provided him by email with the terms of the bargain. Inspector Pottruff made some suggestions regarding the terms of the probation. Inspector Pottruff’s evidence is that the Brantford Police Services did not request that resignation from employment be part of the bargain. Instead, he was informed by Mr. North that this was part of the bargain.

24On December 17, 2008, the applicant signed a letter that reads as follows:

Upon due consideration and having had a full opportunity to seek any advice as may be necessary, I freely and voluntarily confirm my irrevocable decision to resign my office and my employment with the Brantford Police Service’s Board, effective at 11:59 p.m. on February 28, 2009.

25The resignation was accepted by the Chief of Police and subsequently also by the Police Services Board.

26Also on December 17, 2008, the applicant, Mr. Brauti and Mr. North appeared before Mr. Justice Isaacs. The Court received a joint submission from Mr. Brauti and Mr. North. The submission set out the history of the matter. The applicant pled guilty to some of the charges. The other charges were withdrawn. He was released on bail. Sentencing was not addressed as it was agreed that this would be dealt with at a later date. The later date was originally going to be in March 2009 but in fact the sentencing hearing did not occur until December 2009.

27The charges under the Police Services Act were withdrawn after the applicant resigned his employment on the grounds that the resignation meant that there was no longer jurisdiction to pursue the charges.

28On December 3, 2009, the applicant and Mr. North appeared before Mr. Justice Isaacs in regard to sentencing. Mr. Brauti did not appear and the applicant was self-represented.

29Mr. North set out the history of the matter and explained the nature of the plea bargain. In support of the plea bargain, Mr. North explained that while the charges against the applicant were very serious, there were important “contextual factors”. One of these was that that the applicant had resigned his employment. Mr. North advised:

The loss of his job… which obviously meant a great deal to him, is, in my respectful submission, meaningful collateral penalty.

30The judge reviewed the joint submission and, after speaking to Mr. North and the applicant, accepted it.

31In the months preceding the sentencing hearing, the applicant had been attending the Stonehenge Therapeutic Community facility for intensive treatment. That treatment was very successful as the applicant testified that he has been clean ever since.

32The applicant testified that upon hearing his history, one of the doctors at the facility indicated to him that it appeared that his employer had failed in its duty to accommodate his drug-related disability and that he should therefore pursue an Application to this Tribunal. The applicant did file the Application, but not until March 2010, after the conclusion of the criminal matter.

33The applicant agreed that he did not raise the question of whether his Code-protected rights had been infringed before the Court. He did not agree with Mr. McAleese that he had intentionally and strategically not raised the Code issues until after the criminal matter had been resolved.

Abuse of process

34In this Application the applicant seeks reinstatement and/or financial compensation for the loss of his employment. He also seeks financial compensation for the alleged failure on the part of his employer to respond to his disability during the period of his employment.

35The respondent submits that it would be an abuse of process to allow the Application to proceed.

36The doctrine of abuse of process was addressed by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. At paragraph 37 the Court said:

In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would . . . bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved, [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added.]

37There have been several cases where the Tribunal has found that it would be an abuse of process to permit an application to proceed following resignation of employment. Typically, in these cases, the applicant has signed a “full and final release” that stipulates that, in return for a payment of money, the applicant will resign his or her employment and will not pursue any legal action against the employer for any matter relating to the applicant’s employment or the end of that employment. Often the full and final release explicitly states that the applicant will not bring an application against the employer under the Code. If the applicant subsequently does bring an application, the applicant has violated the terms of the release and the Tribunal will generally not permit the application to proceed because to do so would be abuse of process. An exception to this general rule is when the applicant can show that the release was signed under duress (see, for example, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655).

38In this case, the applicant did not sign a release. The letter of resignation stated that he was resigning “freely and voluntarily” and with the benefit of legal advice but did not say anything about whether the applicant could bring any other legal proceeding against the employer.

39This is thus not a case where the potential abuse of process arises because the applicant is attempting to undo a legal agreement reached with his employer. In fact, according to the respondent, the employer was not a party to the applicant’s resignation at all, apart from accepting it. The agreement in this case was between the applicant and the Crown. In simple terms, the applicant agreed to various terms, including the resignation of his employment, in exchange for a significantly reduced sentence, featuring a period of parole but no jail time.

40I find, however, that the reason that it would be an abuse of process to allow the Application to proceed with respect to the issue of the end of the applicant’s employment is that the applicant seeks to undo an agreement with the Crown that was sanctioned and approved by the Court. This was not just an agreement between the Crown and the applicant. It was an agreement that was presented to a judge who had the discretion to not accept it or to approve it. In bringing the Application the applicant explicitly seeks to undo that agreement. The remedies that he seeks include reinstatement or financial compensation in lieu of reinstatement. For this Tribunal to allow the applicant to undo that agreement would bring the administration of justice into disrepute and undermine the finality of the criminal proceeding.

41The concept that a settlement or legal agreement could be set aside because the person made the settlement or agreement under duress has been discussed in several Tribunal decisions. For example, in Luo v. Dell Canada, 2010 HRTO 879, the Tribunal said (at paragraph 29):

Where “duress” is put forward as the basis for vitiating a settlement agreement, the party claiming distress is really stating that he or she entered the agreement against his or her own free will. Black’s Law Dictionary, 8th ed. (St. Paul, MN: Thomson West, 1999), gives the following as one of the definitions of “duress”:

Broadly, a threat of harm made to compel a person to do something against his or her will or judgment, especially a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition.

42There is no doubt that the applicant agreed to the terms of the plea bargain under “duress” in the sense that he was faced with two bad options. If he accepted the terms, he resigned his employment. If he did not accept the terms, he faced up to three months of incarceration. Ultimately, as a result of the plea bargain, he avoided the loss of his freedom of person, which was obviously a very significant benefit. The proceedings before the Court show that for the Crown, the fact of the applicant’s resignation was an important and integral part of the result, representing what the Crown termed a “meaningful collateral penalty”.

43The applicant cannot be said to have been forced or compelled to agree to the plea bargain against his will or judgement and the agreement was obviously a lawful agreement. At the conclusion of the hearing, the applicant conceded that, after hearing the submissions of the respondent and the discussion at the hearing about duress, he understood that he could not successfully argue that he should be allowed to set aside the plea bargain agreement on the basis of duress.

44Moreover, the applicant also conceded in his testimony that at the time he appeared before the Court in December 2009, he had already been told by the doctor at the Stonehenge treatment facility that he might have a human rights case. If the applicant felt that the plea bargain in some way infringed his Code-protected rights, he clearly should have raised this concern at the time he was before the Court.

45For these reasons, I am satisfied that it would be abuse of process to permit the Application to proceed with respect to any issue relating to the end of the applicant’s employment.

46However, the Application does not only pertain to the end of the applicant’s employment. It also raises allegations regarding whether the applicant’s disability was appropriately accommodated during the period of his employment.

47The respondent argued that the plea bargain agreement and the resignation of the applicant’s employment extinguished any claim he might have under the Code relating to any aspect of his employment. I do not agree.

48In my view, the plea bargain agreement required the applicant to resign his employment. It said nothing about any legal issue relating to the period of the applicant’s employment. As noted, the respondent was not a party to the agreement. The Crown, which was a party, had an interest in having the applicant resign his employment so that he would no longer be a police officer but there is no evidence and no reason to suppose that the Crown had an interest in protecting the employer from any legal action relating to the period of the applicant’s employment.

49Tewogbade v. Toronto Police Services Board, 2009 HRTO 2043, a case referred to by the respondents, is a case that is very similar to the case before me. The applicant in that case was a police officer who was arrested and charged with offences under the Criminal Code. The applicant entered into a plea bargain that resulted in some of the charges being dropped and a release on bail. One of the conditions was that the applicant resign his employment.

50The applicant’s allegations in that case were summarized at paragraph 26:

The applicant alleges that the respondents’ request that he resign and their decision to lay charges constitutes discrimination in employment on the intersecting grounds of disability and race. He submits that the TPS failed to accommodate his narcotic addiction and that by offering him a plea bargain in return for his resignation, they avoided their obligation to accommodate under the Code. He also alleges that the pressure to resign and engage in a plea bargain was part of the systemic discrimination faced by Black officers in the TPS.

51In my view, Tewogbade is distinguishable on the facts from the case before me. In that case, the allegation was that the plea bargain process itself was discriminatory. It does not appear that the applicant in that case alleged discrimination during his employment, which is a feature of the Application in the case before me.

52I conclude that the plea bargain and the applicant’s resignation from employment do not preclude him from bringing the Application in regards to allegations of discrimination and failure to accommodate his disability during employment. He is however, precluded from bringing the Application in regards to any matter arising out of the plea bargain, including the resignation of his employment. This would impact on any damages he might be entitled to in respect of the part of the Application that may proceed because he received full wages up to the effective date of his resignation.

53As noted by the Tribunal in the earlier Interim Decision in this case, there is also a question of whether the applicant is permitted to bring the Application because of the time limit provisions in section 34 of the Code which reads as follows:

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.

54As discussed earlier, the Interim Decision found that it was not plain and obvious that the delay in this case was incurred in good faith. The Application was not dismissed at that time on the basis of delay but that was not a final decision of the Tribunal on the delay issue. The Interim Decision noted that if the respondent felt that the applicant should not be permitted to bring the Application because of delay, it could raise that issue in its Response. The respondent did raise the issue of delay in its Response.

55In my view, the next step in respect of this Application is to deal with the delay issue. The Tribunal will schedule a half-day in-person hearing to hear evidence and submissions on the question of whether the delay in filing the Application was incurred in good faith and if no substantial prejudice will result to any person affected by the delay.

ORDER

56The applicant is not permitted to bring the Application with respect to any matter arising from the resignation of his employment as to do so would result in an abuse of process. It is not be an abuse of process for the applicant to bring the Application in respect of allegations relating to his period of employment.

57The Tribunal will schedule a half-day in-person hearing to consider whether the applicant is permitted to bring the Application because the delay in filing the Application was incurred in good faith and no substantial prejudice will result to any person affected by the delay.