Human Rights Tribunal of Ontario
Between:
Arnel Collins Applicant
-and-
London Police Services Board, James MacLachlan and Bradley Duncan Respondents
Interim Decision
Adjudicator: Geneviève Debané Date: September 16, 2011 Citation: 2011 HRTO 1707 Indexed as: Collins v. London Police Services Board
1This Application was filed on July 23, 2010 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) against all of the named respondents, alleging discrimination in services on the ground of race, colour, and place of origin.
2This Interim Decision addresses two separate Requests for Orders During Proceedings.
Production Request
3The applicant filed a Request for an Order During Proceedings (the “production request”) to compel the production of any complaints and/or disciplinary records with respect to the named personal respondent James MacLachlan.
4The respondents opposed this request on the basis that the applicant is trying to obtain similar fact evidence. However, the respondents concede, without prejudice to that position, that “no documents exist related to disciplinary action and/or complaints, involving the respondent, James MacLachlan, other than this Application.”
5The Tribunal declines the applicant’s production request since he seeks the production of documents that do not exist. The Tribunal finds that it is unnecessary to consider the respondent’s objection that the documents would be improper similar fact evidence.
Request to remove respondents
6On August 4, 2011, the respondents filed a Request for an Order During Proceeding (“request to remove respondents”) seeking the removal of the two named respondents, the London Police Service and the Chief of Police, Bradley Duncan. The naming of the proper respondents to the Application is an issue that was also raised by the respondents in their common Response filed on October 25, 2010.
7In the request to remove respondents, the respondents indicate that the request is on consent because in the Reply filed by the applicant on November 16, 2010 he conceded at paragraph 1:
The Applicant, Mr. Collins, consents that the correct Respondents in this Application are The London Police Services Board and Constable James MacLachlan.
8The applicant was represented by legal counsel at the time that he filed his Reply. The applicant is no longer represented by legal counsel.
9On August 31, 2011, the applicant filed a response to the request to remove respondents, which in fact opposed the removal of the Chief of Police Bradley Duncan. The applicant seems to suggest that the Chief of Police is institutionally responsible for the actions of the police officers that report to him. The applicant also takes the position that the Chief of Police is responsible for training officers which is a public interest remedy sought by the applicant in the Application.
10The applicant has not opposed the removal of the London Police Service as a named respondent in his response to the request to remove respondents.
11In light of the foregoing and that the respondent believed that the request to remove respondents was on the consent of the parties, but is now partially opposed to by the applicant, the Tribunal finds that it is fair to give the respondents an opportunity to make additional and more detailed submissions.
Order
12Based on the foregoing the Tribunal makes the following Orders:
a. The London Police Service is removed as a named respondent, and therefore the style of cause shall be amended to remove them as a named respondent;
b. The respondents within 14 days of this Interim Decision are directed to make submissions on the following issues:
i. In light of the Reply filed by the applicant, can he withdraw his consent that Chief Duncan is not a respondent;
ii. What is the legal basis for the removal of Chief Duncan as a respondent; and
iii. The respondents should address the factors considered in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 and Persaud v. Toronto District School Board, 2008 HRTO 31, including whether the London Police Services Board can provide the public interest remedy sought by the applicant in the event that Chief Duncan is removed as a respondent.
c. The applicant will have 14 days from the receipt of the respondent’s submissions to make his reply to and make submissions on the issue of removing Chief Duncan as a named respondent.
13I am not seized.
Dated at Toronto, this 16th day of September 2011.
“signed by”
Geneviève Debané Vice-chair