HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Doug Surh Applicant
-and-
Toronto Police Services Board and Bradley Verspeeten Respondents
INTERIM DECISION
Adjudicator: David A. Wright Date: January 6, 2011 Citation: 2011 HRTO 45 Indexed as: Surh v. Toronto Police Services Board
WRITTEN SUBMISSIONS
Doug Surh, Applicant: Self-Represented Bradley Verspeeten, Respondent: Lisa C. Cabel, Counsel Toronto Police Services Board, Respondent: No one responding
INTRODUCTION
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. When the organization respondent failed to respond to an Application naming the “Toronto Police Service”, the Tribunal corrected the style of cause to read “Toronto Police Services Board” and issued an Interim Decision regarding the failure to respond: 2010 HRTO 2344. The respondents now object to the Tribunal’s amendment of the style of cause and ask that it reconsider its decision. They ask that the Chief of Police be added as a respondent and that the Toronto Police Services Board be removed as a respondent. The applicant opposes the amendment.
DECISION
2The Request for Order is dismissed.
BACKGROUND
Legal Background: The Proper Respondent to Human Rights Applications Regarding Police Services
3The question of naming organizational respondents in applications regarding police services in Toronto has been the subject of litigation, both in this Tribunal and in the courts. In a series of cases, the Toronto Police Services Board (“Board”) took the position that only the Chief, and not the Board, was responsible for the actions of an individual police officer. The Divisional Court recently held that a police services board is responsible for the actions of individual police officers in the course of their employment pursuant to s. 46.3(1) of the Code and is a proper respondent to a Tribunal application relating to such actions. See Shaw v. Phipps, 2010 ONSC 2884 at paras. 105-121 (“Phipps”). Leave to appeal this decision has been sought on other issues, but not respecting the legal liability of the Board.
4In many other cases, Tribunal applications relating to police services have named the relevant police services board as respondent, and the boards have responded and participated.
5In another series of cases, the position has been taken that neither the Board nor the Chief is required to respond to an Application in which an applicant names the “Toronto Police Service” as the respondent. This argument was rejected, with the Tribunal expressing on two occasions its concern about the failure of the Board to respond to applications that clearly intended to name the legal entity responsible for police services in Toronto. In the July 2009 case, Smyth v. Toronto Police Service, 2009 HRTO 1029 (“Smyth”), the Tribunal held as follows:
I am concerned about the failure of the Toronto Police Services to file a response. While I appreciate that there may be issues about whether the Toronto Police Services Board is liable for the actions of individual police officers and the legal status of the “Toronto Police Service”, this does not relieve the Board of its responsibility to respond to a human rights complaint filed by a member of the public where it is clear that person intended to name the legal entity responsible for police services in the City of Toronto. By naming the “Toronto Police Service” at 40 College Street, Toronto, Ontario, it seems clear that the applicant intended to do so. I note that the City of Toronto responded, even though it was apparently incorrectly named as Toronto Ambulance Service.
6In a Decision dated November 30, 2010, Stephenson v. Toronto Police Services Board, 2010 HRTO 2371, issued one week before the Request for Order at issue here was filed, the Tribunal held as follows, after citing Smyth:
I am similarly concerned about the failure of the Toronto Police Service to file a Response to this Application. The applicant alleges that she was employed by Toronto Police Services, which, according to its website www.torontopolice.on.ca, self-identifies as being “Toronto Police Services” and provides contact information as to its location on College Street, Toronto, the same address as that set out for the respondent in the Application. The website provides information on how to file a complaint about a police officer or a policy or “services of the Toronto Police Services”, and while the described process does not address human rights applications before the Tribunal, there is no information to suggest that something other than “Toronto Police Services” should be used in any complaint or legal process.
While I appreciate that there may be issues about the legal status of “Toronto Police Services”, as stated in Smyth, this does not relieve the Toronto Police Services from its responsibility of filing a Response to respond to a human rights application filed by a member of the public, in this case its employee, where it is clear that the person intended to name the legal entity responsible for police services in the City of Toronto.
Factual Background: This Application
7The Application alleges racial profiling, sex discrimination and reprisal as a result of a traffic stop. It names the officer involved as an individual respondent and the “Toronto Police Service” at 40 College Street as the organization respondent. The Application was delivered to the respondents on September 15, 2010, with the requirement to file a response by October 20, 2010.
8On October 21, 2010, the Tribunal received a letter and Request for Order from counsel representing the individual respondent, requesting an extension to the response time. The style of cause was identified on the letter as “Doug Surh v. Toronto Police Services Board and B. Verspeeten”. A Response was filed on behalf of Mr. Verspeeten on November 17, 2010, which states “The Toronto Police Service is not a legal entity”. Again, the cover letter from respondent counsel identified the organization respondent as the “Toronto Police Services Board”.
9No Response was filed on behalf of either the Chief or the Board.
10On November 25, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 2344, in the standard form that is used where a respondent has failed to respond to an application. The Interim Decision identified the organization respondent as the “Toronto Police Services Board”. It noted that no Response had been filed by this respondent and directed that if it wished to participate in the proceeding, it must file a Response by December 5, 2010, together with an explanation of why the Response was not filed in accordance with the Notice of Application.
11The Toronto Police Services Board did not file a Response. On December 6, 2010, counsel who had previously responded on behalf of the individual respondent indicated she was now also counsel for Chief William Blair. These parties filed a Request for Order During Proceedings seeking reconsideration of the November 25 Interim Decision.
12The Request for Order During Proceedings states that the Chief of Police and not the Toronto Police Services Board should be the organization respondent. It states that as the applicant named the “Toronto Police Service”, the Board was not named by the applicant nor has it received notice of the Application. The respondents state that the Toronto Police Service is not a legal entity and therefore not a proper party to the proceedings. They argue that it was inappropriate or the Tribunal to unilaterally add the Board as a party to these proceedings. Nevertheless, they state, they “understand the issue of having an unrepresented party being unaware of the proper legal entity”. Accordingly, they consent to the Application being amended to add the Chief of Police as the organization respondent representing the Toronto Police Service. If added in place of the Board, the Chief agrees with and adopts the Response of P.C. Verspeeten.
RELEVANT TRIBUNAL RULES
13The following provisions of the Code and the Tribunal Rules are relevant to this Request:
Human Rights Code
The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.
This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.
Tribunal Rules of Procedure
1.1 These Rules apply to all proceedings before the Tribunal under Part IV of the Code and will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.
1.7 In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:
…v.1) make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants
5.1 A technical defect or irregularity is not a breach of these Rules. Where a party or other person fails to comply with these Rules, the Tribunal may relieve against the failure to comply, with or without terms, as the Tribunal considers appropriate in accordance with Rule 1.1.
5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:
a) deem the Respondent to have accepted all of the allegations in the Application;
b) proceed to deal with the Application without further notice to the Respondent;
c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;
d) decide the matter based only on the material before the Tribunal.
ANALYSIS
14In Ouwroulis v. New Locomotion, 2009 HRTO 335 at paras. 4-7, the Tribunal held as follows:
Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.
When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.
Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.
The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.
15The obligation to respect the seriousness and significance of the Tribunal process applies with equal force to respondents. While they are entitled to vigorously defend applications made against them, respondents must comply with the letter and the spirit of the Tribunal’s Rules and directions.
16It is often the case that respondents are not correctly named by an applicant when an Application is filed. The Tribunal expects that a respondent that is incorrectly named will file a Response that sets out its correct legal name, and generally at that point the style of cause is corrected without objection. It is overly technical and inconsistent with the fair, just and expeditious resolution of applications for a respondent to fail to respond because of how it is named.
17In this case, the applicant named the Toronto Police Service as respondent. Despite the finding in previous cases that the Toronto Police Services Board should respond to applications naming the “Toronto Police Service”, without prejudice to its position about its legal liability, and the holding in Phipps by the Divisional Court that the Toronto Police Services Board is responsible in such circumstances, the Board failed to respond. The Tribunal then issued its standard “no response” decision, and corrected the respondent’s name to the Board’s name. The Tribunal generally corrects respondents’ names in the style of cause when it is clear they are improperly named, and this is particularly necessary when the respondent has failed to file a response. This is part of the Tribunal’s role in adjudicating human rights applications in a fair, just and expeditious manner. The correction to “Toronto Police Services Board” reflected the caselaw and the practice in police cases before the Tribunal. There was nothing inappropriate about the no response decision, and the respondent’s arguments do not take into account the previous caselaw.
18If all parties agreed that the Chief should be substituted for the Board, the Tribunal would amend the style of cause on consent. See, for example, Deesasan v. Chief of Police, Toronto Police Service, 2010 HRTO 1017. However, as it is clear from the applicant’s Response to the Request for Order that he is not agreeable, the Tribunal will not remove the Board.
19The Toronto Police Services Board has failed to comply with the Tribunal’s November 25, 2010 Order to file a Response. The Tribunal is prepared to give the Board a final opportunity to file a Response. Within one week of this Interim Decision, the Board shall file a complete Response or advise the Tribunal that it adopts the personal respondent’s Response. If the Board seeks to add the Chief as an additional respondent, it may do so by naming an additional respondent in s. 4 of its Response.
20I am not seized.
Dated at Toronto, this 6th day of January, 2011.
”signed by”______________
David A. Wright Interim Chair