Zaromitidis v. Toronto Police Services Board (No. 2), 2012 HRTO 1408

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jimmy Zaromitidis Applicant

-and-

Toronto Police Services Board and Her Majesty the Queen in right of Ontario as represented by the Minister of Community Safety and Correctional Services Respondents

Adjudicator: Brian Eyolfson Date: July 18, 2012 Citation: 2012 HRTO 1408 Indexed as: Zaromitidis v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Jimmy Zaromitidis, Applicant: Self-represented Toronto Police Services Board, Respondent: Cara Gibbons, Counsel

INTERIM DECISION

INTRODUCTION

1. This is an Application filed on May 31, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment and membership in a vocational association on the basis of race, ethnic origin, disability and age. The Application includes allegations with respect to hearing tests and requirements in the Constable Selection System (the "CSS").

2. In its Response to the Application dated August 2, 2011, the respondent, Toronto Police Services Board (the "TPSB"), denies that it has acted in violation of the Code. The TPSB also submits, in part, that allegations about the CSS criteria should be brought against the Ministry of Community Safety and Correctional Services (the "Ministry"), as it was and is responsible for the development of the CSS criteria, including hearing standards. The TPSB also submits that Applicant Testing Services Inc. ("ATS") is contracted by the Ontario Association of Chiefs of Police, through a licensing agreement with the Ministry, to provide CSS testing. The applicant filed a Reply on August 17, 2011.

3. The purpose of this Interim Decision is to address the TPSB's Request for an Order During Proceedings to add the Ministry as a respondent, and to issue further directions.

FURTHER PROCEDURAL BACKGROUND

4. On January 18, 2012, the applicant filed a Request for an Order During Proceedings ("Request") for release of his file from ATS. The applicant confirmed that his Request was delivered to the TPSB and ATS.

5. In an Interim Decision dated February 21, 2012, the Tribunal denied the applicant's Request for production as premature. The Tribunal indicated that if the applicant did not receive the ATS file(s) in the TPSB's production of arguably relevant documents, he could bring a fresh request for production at that stage.

6. On February 28, 2012, the Tribunal issued a Notice of Confirmation of Hearing. A hearing in this matter is currently scheduled for October 11 and 12, 2012.

7. On March 16, 2012, the TPSB filed a Statement of Delivery, confirming that it delivered a list and copies of arguably relevant documents to the applicant.

8. On March 16, 2012, the TPSB also filed a Request for Summary Hearing. On March 27, 2012, the applicant filed a Response to the TPSB's Request for Summary Hearing. By letter dated April 4, 2012, the Tribunal denied the TPSB's Request for Summary Hearing.

9. On April 10, 2012, the applicant filed a second Request for release of his file from ATS. The applicant confirmed that his Request was delivered to the TPSB and ATS. The Tribunal does not appear to have received any Responses to the applicant's Request for production.

REQUEST FOR AN ORDER DURING PROCEEDINGS TO ADD A RESPONDENT

10. On June 21, 2012, the TPSB filed a Request to add "Her Majesty the Queen in right of Ontario as represented by the Minister of Community Safety and Correctional Services" as a respondent to the Application. The TPSB provided a Statement of Delivery confirming that its Request was delivered to the Ministry. The TPSB also indicates in its Request that the Ministry consents to being added as a respondent to the Application.

11. On July 4, 2012, the applicant filed a Response to the TPSB's Request. Although the applicant states in his Response that he cannot provide consent to the TPSB's Request to add the Ministry as a respondent, he states that if the Tribunal adds the proposed respondent, he "shall not oppose their decision".

12. Rule 1.7(b) of the Tribunal's Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may add a party. With respect to adding a respondent, Tribunal jurisprudence has articulated the following factors:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

See Smyth v. Toronto Police Services Board, 2009 HRTO 1513 [CHRR Doc. 09-2027].

13. As the TPSB is seeking to add an organizational respondent, the first and third factors are relevant to determining the Request. The first factor has been held to involve a low threshold — the party making the request merely needs to show an appearance or semblance of a violation by the proposed respondent of the applicant's rights under the Code. The third factor considers whether the addition of the proposed respondent as a party would cause substantial prejudice to that party's ability to make full answer and defense that cannot be alleviated by procedural orders of the Tribunal. See Marchese v. Fortinos, 2009 HRTO 25 [CHRR Doc. 09-0036].

14. With respect to the first factor, the TPSB submits in its Request that the Ministry developed the CSS, and that this was accepted by the Tribunal in Lauzon v. Ontario (Ministry of Community Safety and Correctional Services), 2011 HRTO 1404 [CHRR Doc. 11-1904], at para. 5. The TPSB submits that, in Lauzon, the Tribunal found that a stereo acuity standard in the CSS was not a bona fide occupational requirement, and found both the Ministry and the Ontario Provincial Police to have engaged in discrimination for the development and use of the requirement, respectively. The TPSB submits that, in the present case, the applicant's allegations could support a finding that the Ministry violated the Code in the same manner as in Lauzon.

15. Having reviewed the parties' materials, it appears that there are facts alleged which, if proven, could support a finding that the proposed respondent violated the Code.

16. In considering if it would be fair, in all the circumstances, to add the proposed respondent, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the Application is allowed. See Smyth, supra, at para. 12.

17. The TPSB indicates in its Request that the Ministry consents to its addition as a respondent. In addition, referring to the order made against the Ministry in Lauzon, supra, to cease using the standard at issue in that case, the TPSB submits that if this Application is allowed without the Ministry as a respondent, the effectiveness of any remedial order made by the Tribunal would be seriously undermined. The TPSB also submits that adding the Ministry as a respondent would not require an amendment or "expansion of the complaint, the allegations and pleadings" as the Tribunal found likely in declining to exercise its discretion to add a respondent in Santo v. Toronto Police Services Board, 2008 HRTO 56 [CHRR Doc. 08-521], at para. 27. The TPSB submits that, in the present Application, the applicant's allegations against the TPSB, that the hearing standard is discriminatory, may be applied as against the Ministry.

18. In all of the circumstances, and considering, in particular, that the Ministry consents to its addition as a respondent and there is no apparent prejudice to the parties in adding the Ministry as a respondent, I find that it is appropriate to add the Ministry as a party to the proceedings. The TPSB's Request to add the Ministry as a respondent is therefore granted, and the style of cause is amended accordingly.

NEXT STEPS

19. The Ministry shall be provided with a copy of the Application, the TPSB's Response, the applicant's Reply, the Notice of Confirmation of Hearing, and the applicant's Request for an Order During Proceedings dated April 10, 2012, along with a copy of this Interim Decision.

20. The Ministry is directed to file a Response (Form 2) to the Application within 35 days of the date of this Interim Decision.

21. The Tribunal will issue a separate Case Assessment Direction with respect to the applicant's Request for production dated April 10, 2012.

Dated at Toronto, this 18th day of July, 2012.

"Signed by"

Brian Eyolfson

Vice-chair