HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Felix Millien
Applicant
-and-
Toronto Police Service (43 Division), Toronto Police Services Board,
Juneid Patel and Police Chief William Blair
Respondents
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: Millien v. Toronto Police Service
WRITTEN SUBMISSIONS
Juneid Patel and Police Chief William Blair, Respondents
Lisa Cabel, Counsel
Introduction
1The applicant alleges that he was the victim of racial profiling by the Toronto Police Service because he is a member of the Black Community. He alleges further that he was reprised against by Police Constable Juneid Patel (“PC Patel”) because he filed an earlier Application against the Toronto Police Service with the Human Rights Tribunal of Ontario (the “Tribunal”).
2The Individual Respondents, PC Patel and Chief William Blair, filed a Request for Order During Proceedings (“RFOP”) seeking the removal of PC Patel as a respondent on the following grounds:
Chief Blair is liable for the allegations of discrimination set out in the Application;
Chief Blair acknowledges vicarious liability for the conduct of PC Patel;
There is no issue as to Chief Blair’s ability to respond to or remedy the alleged infringement of the Human Rights Code (the “Code”);
There is no compelling reason to continue the proceeding against PC Patel; and,
There is no actual or potential prejudice in removing PC Patel.
3The Individual Respondents allege the applicant bears the onus of establishing why PC Patel should remain a party to the Application. I disagree. The Individual Respondents have brought the RFOP and they bear the onus of establishing that it is appropriate to remove PC Patel from the Application based on the Tribunal’s jurisprudence on this issue.
4The applicant did not respond to the RFOP.
5The hearing of the Application is scheduled for December 13 and 14, 2012.
DECISION AND ANALYSIS
6Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, at para. 42, the Tribunal set out the general principles that apply to this issue:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
7The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
8The applicant alleges that when he advised PC Patel that he had a current Application against the Toronto Police Service with the Tribunal, he was charged with criminal harassment. The applicant asserts the criminal charge was a form of reprisal under the Code.
9On the face of the Application, it is apparent that PC Patel’s conduct with respect to the reprisal allegation is a central issue. Reprisal is similar to an allegation of harassment in that an individual remedy may be sought against PC Patel should an infringement be found regardless of the fact that Chief Blair acknowledges vicarious liability for his conduct.
10For these reasons, Chief Blair’s request to remove PC Patel as a respondent is denied.
APPLICANT’S FAILURE TO DISCLOSE
11The Tribunal notes the applicant has failed to comply with the obligations under Rules 16 and 17 to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents he intends to rely upon no later than 45 days prior to the hearing. There are serious consequences for the case if this step is not taken, set out at the end of this Interim Decision.
12The Notice of Confirmation of Hearing summarized the requirements as follows:
Unless otherwise directed by the HRTO, not later than October 29, 2012 you must deliver to every other party and file with the HRTO:
a list of all documents you intend to rely on at the hearing;
a copy of each document on that list for the HRTO;
a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;
a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;
a statement summarizing the expected evidence of each witness;
where you intend to rely on the evidence of a proposed expert witness, a copy of the expert’s written report or a full summary of the expert’s proposed evidence and the expert’s curriculum vitae;
the Statement of Delivery of the Rule 16.2 list and documents on the other parties.
13In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal explained, at para. 7:
The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.
14The applicant is directed to immediately file the materials required under Rules 16 and 17, and if the applicant has not done so within seven days of the date of this Interim Decision, the Application may be dismissed as abandoned.
Dated at Toronto, this 28th day of November, 2012.
“Signed by”
Jennifer Scott
Vice-chair