HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Arnel Collins
Applicant
-and-
London Police Services Board and James MacLachlan
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
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”), alleging discrimination in services on the ground of race, colour, and place of origin.
2This Interim Decision addresses the respondents’ request for an Order During Proceeding (the “Request”) removing the Chief of Police as a respondent.
3On August 4, 2011, the respondents filed a Request for an Order During Proceeding seeking the removal of the London Police Service and the Chief of Police, Bradley Duncan as respondents. The respondents believed that the Request was on consent because the applicant had indicated in his Reply that the proper respondents did not include the London Police Service and Chief Duncan.
4In an Interim Decision dated September 16, 2011, 2011 HRTO 1707, the Tribunal ordered the removal of the London Police Service as a respondent and directed the parties to provide submissions on the appropriateness of removing Chief Duncan as a respondent because the applicant was now taking the position that he was a proper party.
5The respondents filed submissions on September 30, 2011 in support of the removal of Chief Duncan as a respondent. They took the position that the applicant could not withdraw his consent to remove Chief Duncan as a respondent because Chief Duncan would be prejudiced given that hearing dates have been canvassed and documents have been exchanged.
6The respondents take the position that all of the factors in Persaud v. Toronto District School Board, 2008 HRTO 31, have been satisfied since the proper respondent is the London Police Services Board, a corporate respondent who accepts vicarious liability for the conduct of members of the police force and the Board has to power to compel the Chief of Police to institute any public interest remedies that may be awarded by theTribunal. The respondents point out that no personal allegations have been made against the Chief of Police and the applicant would not be prejudiced by his removal. The respondents rely on the case of Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.), (“Shaw”) for the proposition that the London Police Services Board is responsible for the actions of the Chief of Police.
7On 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.
8On October 14, 2011, the applicant filed submissions maintaining that Chief Duncan should not be removed as a respondent. The applicant denies that he explicitly consented to the removal of Chief Duncan and that there was an “implicit understanding all along that all parties having a bearing in the fulfillment of the requested remedies would be included as respondents.” The applicant maintains that the Board will not be able to implement as a remedy the training of police officers.
Decision
9Since it is clear that the applicant no longer consents to the removal of Chief Duncan as a personal respondent, the Tribunal will address the merits of the respondent’s request.
10Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. 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.
11The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
12Having reviewed the submissions of the parties, the Tribunal finds that all of the factors in Persaud have been met. The London Police Services Board is a corporation that has accepted vicarious liability for the actions of members of the police service. This Tribunal finds that the Board has the power to compel the Chief of Police to ensure that appropriate training of officers is implemented in the event that it deems this to be an appropriate remedy. In Shaw, the Divisional Court states at paragraph 116 to 118:
We first note that it is the police services board who appoints the members of the police service, not the Chief of Police. That authority supports the conclusion that the police services board is the entity that hires or employs the police officers. Further, the responsibilities assigned to a police services board are very much the same as the responsibilities assigned to a board of directors of a corporation. The fact that a corporation may have a Chief Executive Officer who is responsible for the day-to-day operations of the corporation (much in the same way as a Chief of Police is responsible for the day-to-day operations of his or her police service), does not mean that the board of directors is still not ultimately responsible for how those operations are carried out.
In addition to these considerations, we refer to the provision set out in s. 31(2) of the PSA, which reads:
The members of the police force, whether they were appointed by the board or not, are under the board’s jurisdiction.
We appreciate that the PSA expressly precludes a police services board from giving orders or directions to individual police officers. That authority is expressly reserved to the Chief of Police. That demarcation, however, only reflects the unique operational requirements of a police service. It does not change the fact that a police services board may give orders and directions to the Chief of Police, who in turn gives orders and directions to his or her officers, and that a police services board is ultimately responsible for the performance of the Chief of Police. It would follow, in our view, that it is the police services board that is ultimately responsible for the actions of the members of the police service. [emphasis added]
13Therefore, I do not find that it is necessary for remedial purposes to maintain the Chief of Police as a respondent to this application. I accept the respondent’s submission that the Police Services Board can compel the Chief of Police to ensure that members of the police service receive training. As such, I find it is appropriate to remove Bradley Duncan as a respondent and the style of cause shall be accordingly amended.
14I am not seized.
Dated at Toronto, this 27^th^ day of October, 2011.
“Signed by”
Geneviève Debané
Vice-chair