Hay v. Ontario Provincial Police, 2011 HRTO 1909

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lawrence William Hay

Applicant

-and-

Ontario Provincial Police, Ministry of Community Safety and Correctional Services, Ministry of Attorney General and Julian Fantino

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: October 24, 2011

Citation: 2011 HRTO 1909

Indexed As: Hay v. Ontario Provincial Police

APPEARANCES

Lawrence Hay, Applicant ) Peter Rosenthal and Amanda ) Driscoll, Counsel

Ontario Provincial Police, Ministry of ) Christopher Diana, Counsel Attorney General, Ministry of Community ) Safety and Correctional Services and ) Julian Fantino, Respondents )

1This is an Application filed July 7, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The applicant alleges discrimination in employment because of race, ancestry, ethnic origin and reprisal. Included in his complaint is an allegation that the exclusion of First Nations constables from the Police Services Act is discriminatory.

2The respondents filed a Response to the Application on November 10, 2009.

3On August 16, 2011, the respondents made several Requests for Order during Proceeding which included a request for an order permitting them to amend their Response, an order compelling production of documents, an order defining the scope of the hearing and an order striking certain witnesses from the applicant’s witness list. These requests were resolved by the parties with the exception of the request to amend the Response.

4The hearing commenced on September 14 and 15, 2011. The respondents’ request to amend their Response was heard at that time. The applicant’s evidence was not completed during the September hearing dates.

5Further hearing dates have been set in January and February 2012 to complete the case.

Request to Amend the Response

6The respondents seek leave to amend their Response by adding the following:

The Respondents state that the provision of policing services to the Tyendinaga Mohawk Police Service by way of the Ontario First Nations Policing Agreement, the federal First Nations Policing Policy and section 54 of the Police Services Act constitutes a “special program” pursuant to section 14(1) of the Human Rights Code. As such, the approach to First Nations policing as set out in the Police Services Act and these agreements does not infringe any right under Part 1 of the Human Rights Code.

7The applicant objects to the proposed amendment on the following grounds:

(a) The request for the applicant’s consent to the amendment was made six weeks before the commencement of the hearing;

(b) The proposed amendment creates an entirely different defence and prejudices the applicant on that basis;

(c) It would waste hearing time and has no relevance to the real issues in this matter. There is no rational argument that it (section 14) could provide a defence;

(d) Section 14 cannot be used to defend discriminatory aspects of policies that disadvantage Aboriginal police officers. The hearing should not be prolonged by considering a defence that has no possibility of succeeding;

(e) Further time will be required to research this issue which could delay the hearing;

(f) A finding that the policies constitute a “special program” has implications beyond this case. Other First Nations organizations should be given notice and the opportunity to request intervener status.

8In determining whether to permit an amendment, the Tribunal will consider the stage at which the request is made, the nature of the amendment and any prejudice caused by the amendment. See Hill v. Specturm Telecom Group, 2010 HRTO 2066.

9The request to amend the Response was made six weeks before the commencement of the hearing. Counsel for the respondents advised the Tribunal that the request was made shortly after the release of the Supreme Court of Canada’s decision in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] S.C.J. No. 37, a case that dealt with section 15(2) of the Charter. In that case, the Court held the federal government can rely on section 15(2) to defend a challenged program if the program is directed at improving the situation of a group that is in need of ameliorative assistance in order to enhance substantive equality. The respondents argue section 15(2) of the Charter is analogous to section 14(1) of the Code. They submit section 14 can be used as a defence in a similar manner to section 15(2) of the Charter.

10This case involves First Nations policing in Ontario, which in turn involves the federal government’s First Nation Policing Policy, Ontario’s First Nation Policing Agreement and the Police Services Act. The applicant argues the exclusion of First Nations constables from the Police Services Act is discriminatory. The respondents seek leave to amend their Response in order to argue the Police Services Act and the First Nations Policing Agreements operate together as a “special program”.

11The applicant objects to the amendment because he believes it has no chance of success. While the merits of the amendment are not determined at this stage in the proceeding, it is not clear the respondents are prohibited from arguing section 14 of the Code. Section 14(1) has a dual purpose: the exemption of affirmative action programs from review and the promotion of substantive equality. While the respondents cannot argue the exemptive purpose, they may be able to argue the second purpose. See Ball v. Ontario (Community and Social Services), 2010 HRTO 360.

12The applicant submits the amendment changes the defence and is prejudicial on that basis. The applicant is unable to point to examples of actual prejudice other than having to respond to a new defence. More specifically, the applicant has not identified evidence required to respond to this defence that has not already been disclosed by the parties.

13The proposed amendment does assert a new defence. It is uncertain whether the Police Services Act and the First Nations Policing Agreements meet the criteria for a special program and if they do, the impact of section 14(1) of the Code to the allegations of discrimination in this case. That is not the issue before me today. Because the legislation and the federal and provincial agreements operate together, the exclusion from the Police Services Act and the “special program” arguments should be heard together. It would be artificial to argue the exclusion in isolation.

14I agree with the applicant that the amendment has implications beyond this case. However, the issues raised by the applicant also have broad implications. The applicant alleges the Police Services Act is discriminatory because of the exclusion of First Nations constables. He is seeking amendments to that legislation. The issues do not become broad by virtue of the amendment sought by the respondents. They are already systemic in nature.

15The applicant has been unable to establish that he will be prejudiced by the amendment. The hearing is continuing in January 2012. The applicant’s evidence has not been completed. There is sufficient time to research and respond to the amendment before the hearing reconvenes.

16The applicant may file a Reply to the amended Response within 20 days of the date of this Interim Decision.

Order

17Leave to amend the Response is granted.