HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
R.M.
Applicant
-and-
Toronto Police Services Board, William Blair, Brian Kellar, Chrisopher Groff, Michael Thomson and Peter Eckersall
Respondents
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: R.M. v. Toronto Police Services Board
written submissions
R.M., Applicant ) Selwyn A. Pieters, Counsel
William Blair, Brian Kellar, Chrisopher Groff, )
and Peter Eckersall, Respondents ) Lisa C. Cabel, Counsel
1The applicant filed an Application on August 16, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in goods, services or facilities based on race, colour, ancestry, ethnic origin, age, and association with a person identified with a Code-related ground.
OVERVIEW
2In essence, the applicant alleges that the respondents engaged in racial profiling and improperly targeted him for arrest and detention based on Code-related grounds. The Application refers to the following events:
a. an incident in the Cederbrae Mall on December 17, 2009;
b. his arrest by police on January 5, 2010;
c. his detention by police on October 29, 2007; and
d. his arrest by police on January 29, 2008.
3The applicant states that all of the charges against him were withdrawn.
4The Toronto Police Services Board filed a Response denying the allegations of discrimination and denying any responsibility for any alleged discrimination committed by police officers.
5The respondent Michael Thomson has filed a Response denying the allegations of discrimination.
6In an earlier Interim Decision, 2010 HRTO 2349, the Tribunal granted the respondents William Blair, Peter Eckersall, Christopher Groff, and Brian Keller (referred to collectively as the “Respondent Officers”) an extension of time to file a Response pending court proceedings to obtain access to records relating to the applicant that are subject to the Youth Criminal Justice Act, S.C. 2002, c.1 (“YCJA”).
7The YCJA proceedings are ongoing and the Respondent Officers have not yet filed a Response.
8On February 14, 2011, the Respondent Officers filed a Request seeking the dismissal of allegations that fall outside the one-year limitation period set out in section 34(1) of the Code. They have asked that the Tribunal address this issue expeditiously as it may resolve ongoing proceedings under the YCJA.
9The applicant has filed a Response to the Request, objecting to the dismissal of portions of the Application.
10For the reasons that follow, the Respondent Officers’ Request is denied. At this early stage of the proceeding and without the benefit of documents that may be available to the parties in the YCJA proceedings, the Tribunal cannot fairly determine whether the allegations contained in the Application are timely in that they form part of a series of incidents within the meaning of section 34 of the Code.
Proceedings under the YCJA
11On February 1, 2011, counsel for the applicant and counsel for the Respondent Officers appeared in Youth Court in proceedings to obtain access to records under the YCJA.
12The Court issued an order, on consent of the parties, for the disclosure of the Toronto Police Services file as it relates to incidents involving the applicant on December 17, 2009, January 5, 2010, and January 29, 2010.
13During the same proceeding, counsel for the applicant asked that the Youth Court order the production of the file relating to, at least, the October 29, 2007 incident. As the portion of the file relevant to this request had not been provided to the Youth Court in advance of the February 1 hearing, the Youth Court ordered that the documents relating to the October 29, 2007 be produced to the Court. It also required production of documents regarding (a) the applicant’s arrest on January 29, 2008; and (b) “extrajudicial measures” and “community contacts” involving the applicant from October 29, 2007 to August 16, 2010.
14The Youth Court will address whether the documents described in paragraph 12, above, ought to be disclosed to the parties at a hearing on March 1, 2011.
The Request to Dismiss
15The Respondent Officers argue that the events of October 29, 2007 and January 29, 2008 fall outside the limitation period established in the Code. They argue that these incidents are not part of a series of incidents. These respondents further submit that the applicant has not established that any delay in filing the Application occurred in good faith. In any event, they argue that they would be significantly prejudiced if the allegations regarding the 2007 and 2008 incidents were allowed to proceed.
16The applicant argues that the Request to dismiss is premature and that the materials sought in the YCJA proceedings are arguably relevant to the Application. He also argues that the earlier incidents are part of a series of events for the purposes of section 34 of the Code. He submits that pursuant to the definition of “age” under section 10 of the Code, the limitation period ought only to run from the time the applicant reached the age of 18. Finally he argues that, in the event there is a delay, there is no prejudice to the respondents.
Analysis
17Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within one year of the alleged incident or the last incident in a series. It also gives the Tribunal discretion to accept late applications in certain circumstances. Section 34 states:
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.
18Thus, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:
a. the delay was incurred in good faith; and
b. no substantial prejudice will result to any person affected by the delay.
Are the 2007 and 2008 incidents part of a series of events?
19The Tribunal has had a number of opportunities to consider what is meant by a “series of events” and whether separate incidents may reasonably be viewed as a pattern of conduct. See, for example, Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695; Baisa v. Skills for Change, 2010 HRTO 1621; Mafinezam v. University of Toronto, 2010 HRTO 1495; and Aberdeen v. University of Toronto, 2010 HRTO 2514
20Generally, events are not part of a series of incidents if there is a break in the temporal connection between them. A gap of more than one year between events has been considered in some cases to interrupt the series. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Chintaman v. Toronto District School Board, 2009 HRTO 1225.
21In determining whether a number of incidents constitute a series for the purposes of section 34 of the Code, the Tribunal has also looked to the nature of the events as an indicator of whether they make up a pattern of conduct or relate to discrete and separate issues.
22While the incidents as pleaded are separated by approximately two years, at least one of the Respondent Officers is alleged to have been involved in both the October 2007 and the January 2010 incidents. The applicant argues that ongoing racial profiling accounts for his repeated arrest or detention by the same officer without charges.
23The applicant argues that it would be premature to dismiss portions of the Application at this stage. He believes that materials he seeks under the YCJA proceedings may assist him in establishing “interactions between the parties at the material times.”
24The Respondent Officers argue that the incidents are independent and separated by such a significant temporal gap that any alleged series of discriminatory events is interrupted.
25At this stage of the proceedings, and based on the materials before me, I cannot determine whether the alleged incidents constitute a series of events for the purposes of section 34 of the Code. While there is clearly a significant temporal gap between the alleged incidents, I am mindful of the nature of the allegations and the fact that, unlike other types of incidents (including, for example, in the employment context), police encounters may occur sporadically or with limited frequency. Further, the allegation that the same officer or officers were involved in a number of the incidents raises a suggestion that the events may have been part of a pattern of conduct.
26It may be appropriate for the Tribunal to consider all of the allegations of discrimination in order to determine whether the allegations are timely in that they relate to a series of events. At a minimum, it is not, in my view, appropriate to dismiss parts of the Application before the applicant has had an opportunity to attempt to obtain the disclosure of documents that he states may help demonstrate a connection between the alleged incidents.
27For these reasons, the Respondent Officers’ request to dismiss portions of the Application is denied without prejudice to their ability to raise timeliness issues at a later stage of the proceeding.
28I am not seized of this matter.
Dated at Toronto, this 25th day of February, 2011.
”signed by”______________
Michelle Flaherty
Vice-chair