Hancock v. Toronto Police Services Board, 2011 HRTO 565

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kimberly Hancock

Applicant

-and-

Toronto Police Services Board and Bruce Johnston

Respondents

-and-

Toronto Police Association

Intervenor

AND B E T W E E N:

Kimberly Hancock

Applicant

-and-

Toronto Police Services Board, William Blair and Bruce Johnston

Respondents

-and-

Toronto Police Association

Intervenor

INTERIM DECISION

Adjudicator: Mark Hart

Date: March 21, 2011

Citation: 2011 HRTO 565

Indexed as: Hancock v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Kimberly Hancock, Applicant ) Nini Jones, Counsel

Toronto Police Services Board, ) Melany Franklin, Counsel

William Blair and Bruce Johnston, )

Respondents )

Toronto Police Association, ) Jessica Dowling, Counsel

Intervenor )

1This Interim Decision relates to two Applications filed by the applicant. The first is an Application made under s.53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated June 30, 2009, in relation to a complaint filed with the Ontario Human Rights Commission (the “Commission”) on February 23, 2008 (the “Transitional Application”). After objection was made by the respondents to new allegations raised in the Transitional Application, the applicant filed a second Application pursuant to s. 34 of the Code dated December 30, 2009 (the “New Application”).

2The applicant is a detective with the Toronto Police Service. The complaint underlying the Transitional Application alleges that the applicant experienced discrimination in employment because of sexual orientation, sex and family status contrary to ss.5(1) and 9 of the Code, arising out of an incident that led to the filing of assault and domestic assault charges against the applicant on October 3, 2007 and the subsequent disclosure of personal information about the applicant and its impact on the applicant’s job and career advancement.

3Together with the Transitional Application, the applicant filed a Schedule A which primarily alleges that since February 23, 2008, the respondents have subjected the applicant to continuing harassment, discriminatory treatment and reprisals, both in her employment and in the provision of policing services, on the basis of sexual orientation, family status and sex. It is to these additional allegations in Schedule A that the respondents made objection.

4As a result, on December 30, 2009, the applicant filed the New Application, which raises the allegations which had been set out in Schedule A to the Transitional Application. This has led to the respondents seeking dismissal of at least some of these allegations on the basis of delay. The applicant also has requested consolidation of the two Applications, to which the respondents have consented.

5The purpose of this Interim Decision is to address various Requests for Orders which have been filed by the parties in relation to both Applications over the course of the intervening period. Consideration of these Requests for Orders was deferred pending mediation, which occurred unsuccessfully on January 18 and February 11, 2011.

Request to Intervene by Toronto Police Association

6On December 22, 2009, the Toronto Police Association (“TPA”) filed a Request to Intervene in this proceeding. The applicant is a member of the uniform bargaining unit represented by the TPA. The TPA seeks leave to intervene on the basis that the remedies sought by the applicant affect it as the exclusive bargaining agent, including reinstatement and the broad public interest remedies being sought. In addition, the TPA seeks leave to intervene on the basis that the respondents’ submissions in respect of its stated policies and practices with respect to the suspension of members also engages the TPA’s interests.

7The TPA relies upon this Tribunal’s caselaw where intervenor status is generally granted to requesting trade unions where the workplace is unionized, particularly where the remedies sought directly affect the bargaining agent. See, for example, Alexander v. Zellers, 2009 HRTO 1277.

8The TPA’s Request to intervene has not been opposed by either the applicant or the respondents.

9In accordance with the Tribunal’s caselaw, the Request to intervene is granted. The TPA will be granted intervenor status as a party with the ability to question witnesses, call evidence and make submissions, but only with regard to the interests identified in its Request to Intervene. While the TPA has only requested intervenor status in relation to the Transitional Application, the Request was made in the context of the full scope of allegations raised and remedies sought by the applicant in her complaint and in the Schedule A that she attached to the Transitional Application which is replicated in the New Application. As these two Applications are being consolidated (see below), I grant the TPA intervenor status in relation to both Applications.

Request for Order by Applicant dated December 30, 2009

10By Request for Order dated December 30, 2009, the applicant seeks to amend the subject matter of her complaint and the remedies requested to include the matters set out in the Schedule A that she filed with her Transitional Application and also to add William Blair as a party to the Transitional Application. I will deal with each of these Requests separately.

Request to amend complaint and remedies requested

11The Transitional Application was filed pursuant to s.53(5) of the Code, which requires that such an application be made “with respect to the subject-matter of the complaint” that had been filed with the Commission.

12Rule 12.3 of the Tribunal’s Rules of Procedure for Transitional Applications similarly states that applications filed under s. 53(5) of the Code “must be based on the subject matter of the complaint or amended complaint filed at the Commission”. While Rule 12.4 does contemplate requests for amendments to complaints, the ability to seek an amendment is expressly limited by the phrase “having regard to Rule 12.3”.

13These provisions have been interpreted by the Tribunal to mean that requests to amend a Transitional Application to include allegations relating to events that occurred after the filing of the original complaint generally will not be allowed. See Gagne v. Algoma University, 2009 HRTO 2000; Messmer v. Piliwood Investments, 2009 HRTO 2061; DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 618.

14With the exception of paragraph 15 of Schedule A to the Transitional Application, the allegations raised by the applicant in Schedule A all post-date the filing of her complaint with the Commission. As a result, I find that the allegations set out in paragraphs 2 to 14 and 16 to 17 of Schedule A do not fall with the subject-matter of the complaint as filed with the Commission and are therefore beyond the proper scope of the Transitional Application.

15With regard to paragraph 15, this allegation raises issues arising out of the applicant’s arrest on October 3, 2007, in particular that the respondents handled her arrest and charged her differently from other similarly situated heterosexual officers by including conditions on her release that failed to recognize her family as a legitimate entity. The respondents take the position that these are new allegations, and thus should not be permitted.

16As part of the process for dealing with transitional applications, applicants are entitled to file a statement of additional facts, in order to set out material facts upon which they intend to rely at the hearing which were not included in the complaint. The purpose of this aspect of the process was not to allow applicants to amend their complaints, but to afford them an opportunity to further particularize or expand upon allegations already raised in their complaints.

17In this case, the applicant’s arrest on October 3, 2007 is squarely raised on the face of the complaint, in the context of her allegation that she was singled out and treated differently by her employer because of her sex, sexual orientation and family status. While it is correct that the focus of the applicant’s complaint is on what she regards as the inappropriate release of personal information about her, the allegations raised in paragraph 15 of Schedule A arise directly from the arrest and engage the same grounds of discrimination alleged in the complaint. Accordingly, in my view, I regard the raising of these allegations as falling within the acceptable purview of an applicant’s statement of additional facts, and I will allow them.

18Further, in the event that any amendment of the complaint is required in these circumstances, I have the discretion to allow an amendment where to do so would be fair, just and expeditious. See Newman v. Greater Toronto Hockey League, 2009 HRTO 2156. In my view, allowing the applicant to raise these allegations and have them determined by this Tribunal would be fair and just, and would not cause any undue prejudice to the respondents or unduly affect the expeditious nature of this proceeding as the October 3, 2007 arrest and the sequelae to that arrest have always been at issue in this proceeding.

19The applicant also seeks to raise the allegations set out in paragraph 15 of Schedule A in the context of the provision of a service by the respondents, which would be an alleged violation of s. 1 of the Code rather than s. 5 of the Code. It is not clear to me that it is necessary to engage s. 1 of the Code in relation to these allegations, as they are framed in relation to discrimination as compared to other similarly situated heterosexual police officers, as opposed to members of the general public, and thus may be sufficiently related to employment as to fall within the scope of s. 5 of the Code. However, in my view, the raising of s. 1 of the Code in relation to these allegations would not affect the fair, just or expeditious resolution of this matter, and is allowed.

20While the applicant also seeks an order amending the relief requested in her complaint, no such order is required. On the face of the transitional application form, applicants are requested to set out the remedies they seek and are not restricted to what is set out in the complaint. In addition, pursuant to the process under the Transitional Rules, the applicant has the ability to file a statement of requested remedies which can expand upon what is set out in the complaint. The remedies sought ultimately must, however, arise from the allegations set out in the complaint with the inclusion of the additional allegations I have allowed.

Request to add William Blair as a party

21The applicant seeks to add William Blair as a party respondent to the Transitional Application. William Blair originally was identified as a party respondent to the self-drafted complaint submitted by the applicant to the Commission. However, when the complaint was issued by the Commission, it was amended to remove William Blair as a party respondent.

22No specific allegations are made against William Blair in the complaint or in the allegations set out in paragraph 15 of Schedule A. Rather, it appears that William Blair is being sought to be added in his representative or institutional capacity as Chief of Police, on the basis of this Tribunal’s decision in Phipps v. Toronto Police Services Board, 2009 HRTO 1604. This decision subsequently was upheld on judicial review by the Divisional Court in Shaw v. Phipps, 2010 ONSC 3884, which confirmed that the Toronto Police Services Board is liable pursuant to s. 46.3(1) of the Code for the discriminatory acts of its officers. While the Chief of Police’s acceptance of liability before this Tribunal was not raised as an issue on judicial review, the Divisional Court did express doubt as to the legal basis upon which the Chief of Police agreed to accept liability for the officer’s actions (see para. 114).

23In my view, in accordance with the Divisional Court’s decision in Shaw v. Phipps, supra, the Toronto Police Services Board is the proper institutional party to be held liable if one or more of its officers are found to be liable in this case, and not William Blair as Chief of Police. Accordingly, the applicant’s request to add William Blair as a party respondent to the Transitional Application is denied.

Request for order by respondents re delay

24By Request for Order dated February 22, 2010, the respondents seek to strike certain paragraphs from the New Application on the basis of delay. While this Request for Order was filed on the form used for transitional applications, it clearly relates to the allegations raised in the New Application and I will treat the use of the wrong form as a technical defect or irregularity against which I can and do relieve.

25Section 34(1) of the Code provides that a person may apply to the Tribunal either within one year after the incident to which the application relates or, if there was a series of incidents, within one year after the last incident in the series.

26The most recent events alleged in the New Application occurred in January and April 2009, within the one year time period contemplated by s. 34(1). Accordingly, the initial question for me to consider is whether the incidents which are contested by the respondents as being beyond the one year time period form part of a series of incidents that extends to and includes the incidents within the one year time period.

27The New Application filed by the applicant makes four broad allegations. The first is that in or about July 2008, and despite the criminal charges against her having been withdrawn, the applicant was informed that the internal disciplinary charges against her would continue as long as her human rights complaint was outstanding. The disciplinary charges subsequently were withdrawn on August 6, 2008, after the applicant raised that she regarded this as a violation of her rights under the Code. The applicant alleges that the initial position taken by the respondents in relation to the disciplinary proceeding constitutes reprisal.

28The second broad allegation relates to an investigation conducted by the respondent Board in response to a grievance filed by the applicant raising similar issues as are raised in her human rights complaint. The allegation appears to be that the investigation actually conducted and the manner in which it was conducted do not satisfy the respondents’ obligation to take appropriate and reasonable steps in response to an allegation of discrimination and harassment, in violation of the Code. The investigation appears to have been conducted during the period from March to August 2008, with an alleged failure to disclose the results of the investigation as of April 29, 2009.

29The third broad allegation relates to the applicant’s arrest on January 8, 2009, and alleges that the respondents handled the applicant’s arrest and treated her differently from other similarly situated police officers. This appears to be an allegation of discrimination in the provision of services because of the applicant’s sexual orientation. In particular, the allegation is that the respondents “were eager to arrest and charge [the applicant] again”.

30Finally, the fourth broad allegation relates to the applicant’s transfer out of the Sex Crimes Unit following the January 8, 2009 arrest.

31In my view, these allegations all form part of a series of incidents that flow from the applicant’s initial arrest on October 3, 2007. The reprisal allegation in paragraphs 3 to 6 of the New Application relates to disciplinary charges filed against the applicant because of her initial arrest. The allegations about adequacy of the respondents’ investigation in paragraphs 7 to 14 relate to allegations of discrimination and harassment raised by the applicant as a consequence of the release of personal information following her initial arrest. The allegation relating to the applicant’s arrest on January 8, 2009 is that the respondents were eager to arrest the applicant again and treated her in a discriminatory manner similar to how she was treated in her initial arrest. And the allegation relating to the applicant’s transfer out of the Sex Crimes Unit flows immediately from the January 8, 2009 arrest.

32These are not isolated or discrete events that have been cobbled together by an applicant in an effort to reach back in time beyond the one year time period. Rather, there is an underlying and unifying theme to these events which makes them part of a narrative that flows from the initial arrest. As a result, I find that the incidents alleged in the New Application all form part of a series of incidents that extend to and include allegations within the one year period. Accordingly, I find that the New Application is properly filed within the one year time period pursuant to s.34(1)(b) of the Code, and deny the respondents’ request to strike some of the allegations raised therein.

33Given my finding above that paragraph 15 of Schedule A (which is identical to paragraph 15 of the New Application) is within the scope of the Transitional Application, I have not addressed this allegation in the context of the New Application as the repetition of this allegation in the New Application is redundant.

Request for consolidation

34By Request for Order dated March 9, 2010, the applicant seeks consolidation of the two applications, to which the respondents consent.

35Accordingly, the Transitional Application and the New Application are consolidated and will proceed to be heard together.

Request for Order by applicant dated May 13, 2010

36On May 13, 2010, the applicant filed a further Request for Order requesting a case conference with the parties to address the various procedural issues that have been raised. In my view, as is evident from this Interim Decision, I do not regard this as necessary and have been able to address the various issues in writing.

37The applicant also requested an extension of time within which to file her Reply in the context of the New Application, following the determination of the procedural issues and particularly the issues relating to the proper scope of the Transitional Application and the timeliness of the allegations raised in the New Application.

38In this regard, while the respondents did file a Response to the New Application, their Response did not address the substance of the allegations raised in paragraphs 3 to 6 of the New Application and only very briefly addressed the allegations raised in paragraphs 7 to 14 of the New Application, as the respondents took the position that these allegations were untimely.

39As I now have held that these allegations are not untimely, the respondents are directed to file an amended Schedule “B” to their Response which responds to the substance of the allegations raised in paragraphs 3 to 14 of the New Application, within 21 days of the date of this Interim Decision.

40The applicant shall serve and file her Reply within a further 10 days.

Deferral

41In the Response filed by the respondents to the Transitional Application, the respondents raised that on March 6, 2008, the TPA had filed a grievance on behalf of the applicant alleging harassment, discrimination and reprisal. The respondents stated that they were not seeking deferral of the Applications at that time, but reserved the right to make such a request in the future.

42If the respondents do intend to seek deferral of the consolidated Applications, they shall serve and file a Request for Order together with their submissions in support of any such request at the time they file their amended Schedule “B” as set out above, to which the applicant and intervenor shall respond in accordance with the Rules.

Case management

43While I have decided to consolidate these two Applications, I am aware that one of the Applications is subject to the Tribunal’s Rules of Procedure for Transitional Applications and the processes and the other Application is subject to the Tribunal’s regular Rules of Procedure and the different processes and timelines. Accordingly, I will address the pre-hearing obligations of and timelines for the parties in respect of the consolidated Applications.

44At the same time as the applicant is required to serve and file her Reply, the applicant also shall serve and file any statement of additional facts and requested remedies relating to the Transitional Application. By this date, the applicant also shall make disclosure of all arguably relevant documents in relation to both Applications, in accordance with the requirements of Rule 16.1 of the regular Rules of Procedure.

45Within 15 days of receiving the applicant’s Reply, disclosure and other materials, the respondents shall serve and file any statement of additional facts and response to remedies relating to the Transitional Application, and also shall make disclosure of all arguably relevant documents in relation to both Applications in accordance with the requirements of Rule 16.1 of the regular Rules of Procedure.

46With regard to the filing of witness statements and documents in advance of the hearing, all parties, including the intervenor, shall comply with the requirements of Rule 16.2 and Rule 17 of the regular Rules of Procedure in relation to both Applications.