Selwyn Pieters v. Toronto Police Services Board and William Blair, 2012 HRTO 1863

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Selwyn Pieters

Applicant

-and-

Toronto Police Services Board and William Blair

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 1, 2012

Citation: 2012 HRTO 1863

Indexed as: Pieters v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Selwyn Pieters, Applicant ) Self-represented

Toronto Police Services Board, Respondent ) Antonella Ceddia, Counsel

William Blair, Respondent ) Melany Franklin, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to deal with the applicant’s request for production of documents, the applicant’s request that documents be served on third parties, the applicant’s request for an adjournment of the hearing, and the Toronto Police Service Board’s request for permission to have a court reporter record the hearing.

BACKGROUND

2On July 23, 2010, the applicant, who identifies as a Black, African Canadian male with dreadlocked hair, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to services because of his race, colour, ancestry, ethnic origin, and association with a person identified by a Code ground.

3Specifically, the applicant alleged that on the evening of June 20, 2010, while he was walking on a crowded sidewalk, a police officer from the Toronto Police Service (the “TPS”) punched him in the back from behind and pushed her bicycle on him. He alleged that when he asked the officer why she was acting so aggressively, she responded that he was in her way.

4The applicant also alleged that in the early morning of June 21, 2010, he was in the same area, and saw a police officer forcibly removing two Black men from the front of a club. He alleged that several police officers from the TPS and the Royal Mounted Canadian Police (the “RCMP”) then began assaulting the two men. He alleged that one of the men was forced to the ground and continued to be assaulted, despite the fact that he was not resisting. He alleged that the man was handcuffed and made to stand, and was then choked by one of the officers, despite the fact that he was not resisting. He alleged that he yelled at the officer to stop assaulting the man who was not resisting. The applicant alleged that a TPS officer and three RCMP officers then accosted him (the applicant), and the TPS officer told him not to say anything or he would be arrested and charged with obstructing police.

5The applicant alleged that in both the above incidents he was treated the way he was because he is a Black, African Canadian male with dreadlocked hair. He described the police officers’ conduct as “racial profiling”.

6In section 7.c) of his Application (“What was the date of the last event?”), the applicant stated: “23/06/2010”. He alleged that after he sent a letter of complaint to William Blair, the Chief of the TPS, the Toronto Sun published an article on June 23, 2010 with comments by Mark Pugash, the TPS’s spokesperson, which he found to be biased and indicative of a culture in the TPS that does not welcome scrutiny of police officers’ racist misconduct and criticism of their abuse of power.

7In section C4 of his Application (“To whom [in authority] did you complain?”), the applicant stated: “Chief of Toronto Police Service”. In section C5 (“Was there an investigation?”), the applicant checked off the box for “no”.

8In section C6 of his Application (“Explain why you believe that you were discriminated against based on your race, colour, ancestry… or ethnic origin.”), the applicant stated: “I was discrimination [sic] due to the practice of racial profiling and abuse of power on the part of the respondents.”

9In his Application, the applicant did not explain how the respondents discriminated against him because of his association with a person identified by a Code ground. In section C26 of the Application (“Please explain why you believe you were discriminated against because of association.”), the applicant left the fill-in box blank. In section 19 of the Application (“Please list the witnesses that you intend to rely on in the hearing.”), he also left the fill-in box blank.

10On October 6, 2010, the Toronto Police Services Board (the “respondent TPSB”) filed a Response, which stated that it should be removed as a respondent to the Application because the applicant’s allegations relate to the particular conduct of individual police officers, who were performing their statutory law enforcement duties, and that the Board has no knowledge of, personal involvement in, or liability for the incidents alleged in the Application.

11On October 29, 2010, Chief William Blair of the TPS (the “respondent Blair”) filed a Response, which denied the allegations of discrimination. With respect to the first alleged incident, the respondent Blair denied that the police officer punched the applicant in the back or pushed her bicycle on him. With respect to the second alleged incident, the respondent Blair stated that TPS officers had dealings with two men, that one of the men (“Mr. M.”) was arrested and charged with public intoxication, and that Mr. M. actively resisted arrest and was taken to the ground. The respondent Blair stated that the applicant’s allegation with respect to this incident is outside the Tribunal’s jurisdiction because the applicant has no legal standing to bring an Application in Mr. M.’s stead, and the applicant is not associated in any way with Mr. M.

12On November 23, 2010, the applicant filed written submissions in reply to the respondent TPSB’s Response. The applicant stated that in Phipps v. Toronto Police Services Board, 2009 HRTO 1604, the Tribunal found that the respondent TPSB was jointly liable with the respondent Blair for the discriminatory actions of a TPS officer.

13On December 12, 2011, the Tribunal issued a Notice of Confirmation of Rescheduled Hearing to the parties, which informed them that the hearing was scheduled for October 2, 3 and 4, 2012. The Notice also informed the parties that pursuant to Rule 16.1 of the Tribunal’s Rules of Procedure, they were required to deliver to each other a list and copy of all arguably relevant documents in their possession by no later than May 31, 2012.

14On July 31, 2012, the applicant filed a Request for an Order During Proceedings (“RFOP”), which requested that the Tribunal order the respondents to produce certain documents in their possession, and that the Tribunal order that certain documents be served on the two Black men involved in the second alleged incident whom he witnessed being assaulted.

15On August 14, 2012, the respondent TPSB filed a letter in response, which stated that the requested documents are in the possession of the respondent Blair, and that it takes no position with respect to the merits of the RFOP. On August 28, 2012, the respondent Blair filed a Response to the RFOP, which opposed all of the applicant’s requests.

16On August 28, 2012, the respondent TPSB filed a letter, which requested permission to have a court reporter record the hearing. None of the other parties responded to the request.

17On September 7, 2012, the applicant filed a Reply to the respondent Blair’s Response to his RFOP, which, among other things, requested that the hearing be adjourned. On September 25, 2012, the respondent Blair filed a letter, which consented to the adjournment request. On September 26, 2012, the respondent TPSB filed an e-mail, which stated that it did not oppose the adjournment request.

ANALYSIS

Production of Documents

18In his RFOP, the applicant requested that the Tribunal order the respondents to produce the following information, documents, and things:

1. McNeil checklist for all involved officers;

2. Use of Force Reports;

3. Unified search of MANIX, CIPS, CPIC, ECOPS, and RICI;

4. Field Information Reports and the Provincial Offences Tickets in relation to the two Black males that the police interacted with;

5. All internal correspondence from the Chief of Police, Deputy Chief of Police, and Professional Standards;

6. The names of the two males for whom Field Information Report were completed.

7. The Professional Standards Internal Investigative Report and witness statements;

8. The TPS Booking and Releasing video as well as the DVD re Cell 18 Camera;

9. All correspondence from Deputy Chief Peter Sloly and Chief William Blair regarding this matter;

10. All correspondence from Mark Pugash regarding this matter;

11. Unredacted copies of the involved police officers notes; and

12. Full copies of documents which were redacted on the basis of the vague claim of the confidentiality of "Mr. M."

19The applicant stated that he put the respondents on notice in his Application that the above materials are arguably relevant, but when the respondents disclosed their arguably relevant documents to him, none of the materials in 1) to 10) were disclosed, and the materials in 11) and 12) were heavily redacted to delete information regarding witnesses to the incidents in his Application. He stated that the respondents have provided partial, selective, and self-serving disclosure.

20With respect to the materials in 1) to 10), the applicant stated that the respondents have no legal justification for denying him disclosure because the materials are arguably relevant to his Application and their probative value outweighs any prejudicial effect.

21With respect to the materials in 11) and 12), the applicant stated that the respondents cannot claim confidentiality on behalf of two men who are material witnesses to the events in his Application. He stated that he requires the names and contact details of the two men in order to interview them and summon them to appear before the Tribunal.

22In his Response to the applicant’s RFOP, the respondent Blair stated that the applicant’s production request should be denied because the documents that he is seeking are not arguably relevant, and that some of them also have private information related to third parties or are privileged.

23With respect to the materials in 1) to 10), the respondent Blair stated that the applicant’s Application and RFOP show no nexus between the records sought and the issue of whether the applicant personally experienced discrimination. The respondent Blair also stated that the applicant’s request for production of these records is based on speculation, and that such production will not be helpful in ascertaining whether the applicant was subjected to racial profiling. The respondent Blair further stated that granting the applicant’s production request would have the effect of allowing him to engage in a fishing expedition.

24With respect to the materials in 1) to 5), the respondent Blair also stated that the records contain the highly sensitive personal information of third parties, and that any probative value that the records may have is outweighed by their prejudicial effect.

25With respect to the materials in 6), 8), 11), and 12), the respondent Blair also stated that none of the applicant’s alleged facts suggest that either of the two men witnessed his interactions with the TPS officer or any other police officers.

26With respect to the materials in 7), 9) and 10), the respondent Blair also stated that he has already produced correspondence with respect to the applicant’s personal allegations of discrimination; that any documents related to an investigation of the applicant’s complaint by the Professional Standards Unit of the TPS (which he withdrew) cannot be disclosed pursuant to subsection 83(8) and section 95 of the Police Services Act, R.S.O. 1990, c. P.15, which prohibit such documents from being admitted in civil proceedings, or being disclosed except in limited circumstances; and that any other correspondence between senior command is subject to litigation privilege.

27In his Reply to the respondent Blair’s Response to his RFOP, the applicant explained (for the first time) why he believes that the respondents discriminated against him with respect to services because of his association with a person identified by a Code ground. With respect to the second alleged incident, he stated:

The Applicant, who is also Black, was in the directly in the vicinity of what took place and was believed by the police officers to be associated with the [two Black] males. In the result the Applicant was surrounded by a group of police officers while the assault was taking place.

28In his Reply, the applicant repeated many of the same arguments that he made in his RFOP. His new arguments were the following. With respect to the names and contact details for the two Black men involved in the second alleged incident, the applicant stated that they have relevant first-hand information, and direct evidence to give, as they were part of the narrative that forms the basis for the Application.

29With respect to the materials in 3), the applicant stated that they are arguably relevant if the respondents conducted searches on his name.

30With respect to the materials in 5), 7), 9), and 10), the applicant stated that they are arguably relevant because they will show how the TPS responded immediately and in the ensuing days to his complaint. He stated that the efficiency and integrity of the TPS’s investigation of issues of racial profiling, and the manner in which it is holding true to the policy and practice manuals that it intends to rely upon at the hearing, are live issues before the Tribunal.

31It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding.

32In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal explained its approach at paras. 8-11:

The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra at para 41.

Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or the timing of the request risks derailing a just and expeditious hearing.

The Tribunal is also sensitive to privacy issues….

33The applicant has the burden of demonstrating that the information, documents and things sought are “arguably relevant” to the issues in dispute in the proceeding before the Tribunal. As a preliminary observation, I would point out the applicant’s RFOP made general statements about arguable relevance, probative value, and prejudicial effect, but failed to explain in any detail how there is a nexus between the information, documents and things sought and the issues in dispute before the Tribunal. It was only in his Reply to the respondent Blair’s Response to his RFOP that the applicant attempted to explain what the nexus is. Furthermore, neither he nor the respondents have filed the documents listed in 11) and 12) with the Tribunal.

34I will deal with the applicant’s request for information, documents and things by grouping them in three areas. With respect to the information, documents and things in 1), 2), 3), 4), 6), 8), 11), and 12), which, with the exception of 3), all appear to relate solely to the two Black men involved in the second alleged incident, the applicant did not explain, and I do not see, how there is a nexus between the information, documents and things sought and the issues in dispute before the Tribunal. The applicant does not have standing to make allegations of discrimination on behalf of the two men. Furthermore, he did not list them as witnesses in his Application, and he has not alleged that they saw or heard his interactions with the police. Accordingly, the applicant’s request for production of the aforementioned information, documents, and things is denied.

35With respect to the documents in 3), which relate to background checks that the police conducted during or after the second alleged incident, in my view, if any police officer or other person employed by the TPS conducted a background check on the applicant, the document is arguably relevant because the applicant has alleged that the police officers treated him the way that they did because they believed that he was associated with the two Black men because he is also Black. Accordingly, the applicant’s request for production of any background checks conducted on him during or after the second alleged incident is granted.

36With respect to the documents in 5), 7), 9), and 10), which all relate to documentation that was produced after the applicant complained to the TPS about the two alleged incidents, I do not see how there is a nexus between the documents sought and the issues in dispute before the Tribunal. In his Application, the applicant did not allege that the respondents’ response to his complaint to the TPS was discriminatory. The applicant merely alleged that the last event occurred on June 23, 2010, when the Toronto Sun published an article with comments by the TPS’s spokesperson, which he found to be biased and indicative of a culture in the TPS that does not welcome scrutiny of police officers’ racist misconduct and criticism of their abuse of power. The applicant did not outline what those comments were, and neither he nor the respondents have filed a copy of the article with the Tribunal. Accordingly, the applicant’s request for production of these documents is denied.

Service on Third Parties

37In his RFOP, the applicant also requested that the Tribunal issue an order that the two Black men involved in the second alleged incident be served with the Application, the Responses to the Application, and his RFOP, and that they be permitted to respond to the RFOP.

38The applicant did not explain, and I do not see, why this request should be granted. As I explained above, the applicant does not have standing to make allegations of discrimination on behalf of the two men. Furthermore, he did not list them as witnesses in his Application, and he has not alleged that they saw or heard his interactions with the police. Accordingly, the applicant’s request is denied.

Adjournment of the Hearing

39In Reply to the respondent Blair’s Response to his RFOP, the applicant requested that the hearing be adjourned until the Tribunal dealt with his RFOP and set out a timetable for him to serve and file his materials pursuant to Rule 17 of the Tribunal’s Rules of Procedure. Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list and brief statement summarizing the expected evidence of each witness no later than 45 days prior to the first scheduled day of hearing. The respondent Blair consented to the adjournment request, and the respondent TPSB did not object to it, but neither respondent provided supporting reasons.

40The Tribunal’s Practice Direction: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments provides that requests to reschedule a hearing must be made within 14 days of receiving the Notice, and requests for adjournments thereafter will only be granted in extraordinary circumstances, such as the illness of a party, witness, or representative.

41The Tribunal’s approach to late adjournment requests was set out in Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days [now 14 days] after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with those broader interests by requiring that a party advise within five days [now 14 days] that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

42The applicant’s adjournment request is premised on the Tribunal granting his request for production of the names and contact details of the the two Black men involved in the second alleged incident. In view of the fact that the Tribunal has denied his request, there is no basis for adjourning the hearing. Accordingly, the applicant’s request to adjourn the hearing is denied.

Court Reporter

43The respondent TPSB filed a letter, which requested permission to have a court reporter record the hearing.

44The Tribunal’s Practice Direction on Recording Hearings states:

The Human Rights Tribunal of Ontario (the HRTO) has developed the following approach to recording hearings. The procedure outlined below provides general information only. It is not a rule within the meaning of the HRTO’s Rules of Procedure. The HRTO may vary the approach to recording hearings where appropriate.

The HRTO does not normally record or transcribe its proceedings. The HRTO will record a hearing when it is necessary to accommodate Code-related needs of the panel, a party or a representative who would otherwise be unable to participate in the hearing. Please contact the appropriate Registrar as soon as possible if you require accommodation.

Electronic recording of the hearing is subject to the discretion of the HRTO and to any terms set by the HRTO.

Self-recording and Transcription

Parties may record hearings using their own equipment and transcribe those recordings at their own expense with the consent of the panel, provided a copy of any recording or transcription is provided to the other parties and the HRTO. Such recordings or transcriptions do not form part of the HRTO’s record of proceedings including the record filed in respect of any application made under the Judicial Review Procedures Act.

Use of a Court Reporter

The HRTO may permit a party to have a court reporter to record the hearing at the party’s expense. Where the court reporter produces an official transcript the HRTO will require the party to provide copies to the panel and the other parties. Where an unofficial transcript is provided to a panel and the other parties it will normally be considered part of the HRTO’s record of proceedings and may be included in the record filed by the HRTO in respect of any application made under the Judicial Review Procedures Act.

45I have no objection in principle to a party bringing a court reporter to the hearing, but in my view it would not be fair and just for one party to have a court reporter in the room, and not share the court reporter’s record with the other parties and the Tribunal prior to the Tribunal’s Decision. I will therefore allow the respondent TPSB to have a court reporter present during the hearing, but only on the condition that a transcript of the hearing be prepared and shared with the other parties and the Tribunal within a reasonable period of time after the end of the hearing. I will decide on an appropriate deadline at the hearing.

ORDER

46The Tribunal makes the following orders:

1. The respondent Blair shall disclose to the applicant any background checks conducted on him by a police officer or any other person employed by the TPS during or after the second alleged incident mentioned in the Application.

2. The applicant’s request for production of other information, documents and things is denied.

3. The applicant’s request that the parties’ pleadings and his RFOP be served on the two Black men involved in the second alleged incident, and that they be permitted to respond to the RFOP, is denied.

4. The applicant’s request to adjourn the hearing is denied.

5. The respondent TPSB’s request for permission to have a court reporter record the hearing is granted on the condition that it shall share a copy of the transcript of the hearing with the other parties and the Tribunal within a reasonable period of time after the end of the hearing.