HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Catherine Lockley (formerly Crocker), Helena Russell, Angela Weston, Robin Haworth, Catherine Wallace, Deborah Mcgreal-Dinning, Sherri Marshall, Jennifer Azulay, and Paula St. Aubin
Complainants
-and-
Ontario Human Rights Commission
Commission
-and-
Hamilton Police Services Board, Hamilton Police Association, and Kevin Dhinsa
Respondents
A N D B E T W E E N:
Hanna Carter
Applicant
-and-
Hamilton Police Association and Kevin Dhinsa
Respondents
A N D B E T W E E N:
Sabrina Feser
Applicant
-and-
Hamilton Police Services Board, Hamilton Police Association, Kevin Dhinsa,
and Brian Mullan
Respondents
A N D B E T W E E N:
Brandi Frazier
Applicant
-and-
Hamilton Police Services Board, Hamilton Police Association, Kevin Dhinsa,
and Brian Mullan
Respondents
Interim DECISION
Adjudicator: Leslie Reaume
Indexed as: Lockley v. Hamilton Police Services Board
WRITTEN SUBMISSIONS
Catherine Lockley, Helena Russell, ) Julian H. Falconer, Angela Weston, Robin Haworth, ) Jackie Esmonde and Catherine Wallace, ) Asha James, Counsel Deborah McGreal-Dinning, ) Sherri Marshall, Hannah Carter, ) Sabrina Feser and Brandi Frazier , ) Complainants and Applicants )
Hamilton Police Association, ) Joshua S. Phillips, Counsel Respondent )
Hamilton Police Services Board and ) David Migicovsky and Chief Mullan, Respondents ) Lynda Bordeleau, Counsel
Kevin Dhinsa, Respondent ) Mark Labenski, Counsel
Ontario Human Rights Commission ) Christine Elwell, Counsel
1The parties participated in a Pre-Hearing Conference Call on September 15, 2010. During that call, hearing dates were set and a schedule was established for the parties to exchange and file written material in relation to any outstanding preliminary matters.
2These matters are scheduled to proceed to hearing for almost the entire month of April 2011. The parties filed a variety of materials in relation to a number of preliminary issues. In dealing with the various Requests, my ultimate concern is to facilitate a fair, just and expeditious resolution of the merits of these Complaints and Applications.
Amendment to the Style of Cause
3The Request on the part of the complainants and applicants to amend the style of cause to reflect legal name changes which have occurred during the course of this proceeding is granted.
Bifurcation
4The Request to bifurcate as between liability and remedy has been filed by the complainants and applicants represented by Mr. Falconer and is opposed only by the Hamilton Police Services Board. Bifurcation is the exception in human rights proceedings under the Human Rights Code, R.S.O., 1990, c.H.19, as amended (the “Code”). Although I agree with the complainants and applicants that the issues are complex and extensive evidence will be required on both liability and remedy, there will likely be overlap, in which case bifurcation will extend the cost and time associated with this proceeding. If further hearing days are required, this issue will be addressed in the course of the proceeding. I am not persuaded that there is any compelling reason at this stage to depart from the general practice of hearing all of the evidence in relation to liability and remedy at the same time.
Request for Dismissal by Hamilton Police Association
5I have reviewed the materials filed by the Hamilton Police Association (“HPA”) in relation to their Request that these matters be dismissed for failure to make out a prima facie case. I do not consider it necessary for the complainants/applicants and the Commission to respond. In the circumstances of this case, where the allegations go beyond the failure of the union to properly represent a member, I consider it premature to seek dismissal of these proceedings until at least the conclusion of the evidence which the complainants/applicants intend to call in support of their case.
6In addition, the Tribunal is required to provide the parties with an opportunity for oral submissions before finally disposing of an application or complaint within its jurisdiction. Setting a separate date to hear evidence and submissions on this issue, in these circumstances, would result in a duplication of the evidence and witnesses which are scheduled to be called at the commencement of the hearing. The HPA is not precluded from raising this issue at a later stage in the proceeding if that is warranted by the evidence.
Request for Dismissal on the Basis of Timeliness
7The complainants/applicants as well as any other party who intends to respond to the Request for dismissal on the basis of timeliness, initiated by the respondent Kevin Dhinsa, are to do so in writing with copies delivered to all other parties by February 23, 2011.
8Although I understand the concern raised by the complainants/applicants about the lack of disclosure, this issue can, in my view, be addressed without full disclosure. Most requests seeking a dismissal on the basis of delay are dealt with as preliminary or threshold issues before the disclosure obligations under the Rules arise. The questions to be addressed are whether the complainants/applicants agree that the complaints or applications were commenced outside the time limit set by the Code and if so whether the delay was incurred in good faith and will not result in substantial prejudice to any party.
Production of Documents
9There is some dispute about the necessity to comply with the disclosure Rules prior to the disposition of the preliminary Requests. The Tribunal did not issue any direction relieving the parties of their disclosure obligations pending the outcome of the interim Requests. The parties were directed by the Tribunal on February 9, 2011 to comply with their disclosure obligations immediately.
Dated at Toronto, this 11th day of February, 2011.
”signed by”________
Leslie Reaume
Vice-chair