HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jeffrey Servos
Applicant
- and-
Brantford Police Services Board
Respondent
DECISION
Adjudicator: Brian Cook
Indexed as: Servos v. Brantford Police Services Board
APPEARANCES
Jeffrey Servos, Applicant ) Self-represented
Brantford Police Services Board, ) Respondent ) Seann McAleese, Counsel
INTRODUCTION
1This Application was filed on March 9, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging discrimination in employment on the basis of disability. This Decision is further to Interim Decision 2011 HRTO 1705 (the “Interim Decision”) dated September 16, 2011.
2The applicant was employed as a police officer by the respondent. On June 23, 2007, he was suspended with pay and charged with criminal offences regarding his use of illegal drugs while on duty. He did not return to active duty. His employment ended effective February 28, 2009 as a result of a plea bargain between the Crown and the applicant.
3In the Application, the applicant alleged that the termination of his employment was discriminatory and that he also experienced discrimination during the period of his employment.
4In the Interim Decision, I concluded that the applicant is not permitted to bring the Application with respect to any matter arising from the termination of his employment. The applicant’s employment ended as part of a plea bargain that resolved criminal charges against him. The plea bargain was reviewed and approved by the Court. To allow the applicant to re-open that issue in the context of an Application to this Tribunal would be an abuse of process.
5I found that it is not an abuse of process for the applicant to bring the Application in respect of his allegations of discrimination during the period of his employment as these allegations were not covered by the plea bargain.
6However, in respect of the period prior to his termination, I noted that there is a question as to whether the Application in respect of alleged discrimination during the applicant’s employment was filed in time. Section 34 of the Code provides as follows:
- (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
7I directed a half-day in person hearing to determine if the Application in respect of alleged discrimination during the applicant’s employment was filed more than one year after the last incident of discrimination and, if it was not, whether the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. A hearing for this purpose was scheduled for February 16, 2012.
BACKGROUND
8The background facts were set out in the Interim Decision:
The applicant started his employment with the respondent in April 2001. The applicant sustained a non-work-related injury in 2004. He self-medicated using Oxycontin that he purchased on the street. On March 1, 2005, he took a medical leave from work and attended a rehabilitation facility for one month to deal with his drug use. The staff at the facility encouraged him to disclose his drug use to his employer. A police Inspector attended a meeting at the facility where the problem was disclosed. The applicant returned to work.
He testified that he had no further discussion with his employer about his drug use until June 2006. At that time, he disclosed to a police Inspector that he had suffered a relapse and had been using street drugs again. The applicant was immediately suspended and arrangements were made for him to attend the Homewood Health Centre for treatment and drug counselling. He attended Homewood for about one month and then had after-care counselling. He remained in receipt of his full salary.
The applicant returned to work on September 6, 2006, after signing a return to work agreement. The agreement stipulated that the applicant was to provide random urine samples for a period of two years, attend continuing counselling at Homewood and join Narcotics Anonymous. The uncontested evidence is that the applicant was never asked to provide a urine sample and was not required to join Narcotics Anonymous. He did attend Homewood for continuing counselling for a few months, going once a week. The applicant noted that the respondent gave him paid time from work to attend these sessions and also allowed him to use a police vehicle to get to and from treatment.
At the time the applicant returned to work, charges were laid under the Police Services Act, R.S.O. 1990, ch. P.15 relating to the applicant’s disclosure of his use of street drugs in the period prior to June 2006. The parties were not completely clear what became of those charges but it appears that the applicant was suspended without pay for a few days as a result of the charges.
The applicant testified that at some time after he returned to work he expressed concern about the possibility of a further relapse. The applicant’s job involved driving a police cruiser by himself and responding to calls. In the course of doing this work, he came into frequent contact with drug users and dealers. In the period following the completion of the Homewood after care program, the applicant asked if it would be possible to either re-assign him to an office job or to have a fellow officer with him in the car. He testified that a fellow officer was assigned for one shift but that it was determined that he did not require this accommodation. He did not pursue the matter because he felt that he was creating a burden on others and because it appeared that the employer did not really want to accommodate his request.
In the course of his employment in the period after the return to work in June 2006, the applicant experienced some work-related stress. On one occasion he witnessed a woman being burned alive in a car after a train accident. On another occasion, he was pursuing a van in his cruiser. Another officer in another cruiser was also involved in the pursuit. He stopped the vehicle and got out of his car when the suspect started driving towards him. He fired his firearm at the van and the passenger in the van sustained a non-fatal injury. The Special Investigation Unit (SIU) investigated the incident and cleared him of any wrong doing.
The applicant testified that after this incident, he expected to be called for supportive debriefing as this is standard procedure when an officer is required to discharge a firearm in the line of duty. A session was scheduled but it was scheduled for a day he had booked off and was not re-scheduled.
The applicant believes that, because of his history, his employer should have been particularly concerned about his stress levels especially after these traumatic incidents. He submits that his request to have another officer with him in the patrol car was a “cry for help” from a recovering addict who was exposed to drugs on a daily basis. He feels that his cry for help was ignored because of police culture and because his employer was not really interested in helping him, and was setting him up for failure so they could get rid of him.
At some time in 2007, the applicant experienced a further relapse and started to again use street drugs. The applicant did not disclose this to his employer. However, the relapse came to the attention of the Brantford Police Services because of information provided by people who were arrested for drug-related offences and who implicated the applicant at the time of their arrest.
The Brantford Police Services put a pin-hole camera in the applicant’s patrol car without his knowledge to monitor his activities. A GPS unit was placed on his private car, also without his knowledge, and he was placed under 24 hour police surveillance.
On June 23, 2007, the applicant was criminally charged with possession of controlled substances. Charges were also laid under the Police Services Act.
Further charges were laid on November 28, 2008 following further surveillance and he was incarcerated.
The applicant retained P. Brauti, a criminal lawyer to represent him in relation to the criminal charges. Mr. Brauti entered into negotiations with J. North, the Crown Counsel assigned to the matter. On December 16, 2008, Mr. Brauti and Mr. North negotiated a plea bargain. Among other things, the bargain provided that in exchange for a lesser sentence, featuring a period of parole without further jail time, the applicant would resign his employment.
9The applicant did resign his employment, effective February 28, 2009.
10As noted in the Interim Decision, the plea bargain was reviewed and accepted by Mr. Justice Issacs in a sentencing hearing that occurred on December 3, 2009.
11The Application was filed with this Tribunal on March 9, 2010.
When Was The Last Incident Of Alleged Discrimination?
12As indicated in the Interim Decision, the applicant alleges that the respondent failed to adequately accommodate his drug dependency related disability on several occasions during the period of his employment.
13The respondent submits that the last date of alleged discrimination was June 23, 2007, when the applicant was suspended with pay. The applicant indicated that he feels that there was continuing discrimination beyond that date because he was treated as an accused criminal and not as an employee. The applicant conceded that the last possible incident of employment-related discrimination was November 28, 2008, when he was arrested and incarcerated.
14In the Application, the applicant suggested that the last date of discrimination was February 28, 2009, which was the effective date of his resignation. However, it is clear that the applicant in fact resigned in November 2008. The respondent agreed to make February 28, 2009 the effective date of the resignation to give the applicant additional access to medical coverage.
15Without deciding whether the events on November 28, 2008 were in fact an act of discrimination, I am satisfied that November 28, 2008 is the last date that could possibly be associated with previous incidents of alleged employment-related discrimination.
16The Application was filed on March 9, 2010, so the Application was not filed within one year of the last alleged incident.
Was The Delay Incurred In Good Faith?
17After the applicant was arrested on November 28, 2008 he was in custody until December 17, 2008, when he was released on bail. He was then under house arrest until June 2009 when he started a residential treatment program at Stonehenge Therapeutic Community (“Stonehenge”). He was discharged from that program on November 20, 2009.
18The applicant testified that he was not emotionally capable of pursuing his human rights case until he was discharged from Stonehenge. He testified that after his arrest and incarceration and through the period of house arrest he was very depressed and unable to function even in terms of usual activities of daily living.
19As noted by the respondent, the applicant has not provided any medical evidence about his condition or in substantiation of his inability to function in the period he was under house arrest.
20During the period of house arrest he attended treatment at an outpatient mental health unit. However, this was a group session and he found that it was not helpful.
21The applicant did agree that he was in contact with Mr. Brauti, his criminal lawyer in the period December 2008 to December 2009. However, this contact was mostly in relation to the criminal matters. The applicant conceded that he did ask Mr. Brauti about human rights issues. He said that Mr. Brauti advised him that he did not have expertise in that area and suggested he talk to counsel who did have such expertise.
22The applicant testified that he discussed what happened during his employment with his treating psychiatrist at Stonehenge. The psychiatrist told him he should pursue the matter. The applicant testified that throughout the residential treatment program at Stonehenge he was not allowed access to a computer and had only limited and controlled access to a telephone.
23The applicant testified that the treatment was very successful and he felt much better by the time he completed the program in November 2008. He testified that he started to pursue the human rights issues after he completed the program.
24He obtained legal advice and after a few meetings, he was told that he could pursue an Application on his own if he wanted to do so. He then filed the Application on March 9, 2010.
25On behalf of the respondent, Mr. McAleese submitted that the applicant has not established that the delay in filing the Application was filed in good faith. In regard to the months after November 2008, Mr. McAleese notes that while the applicant testified that he was incapable of dealing with the Application because he was too disabled by depression, the applicant has not provided any medical evidence to substantiate the incapacity.
26Mr. McAleese suggests that the real reason the applicant delayed in filing the Application was that he wanted to wait until the plea bargain was in place and approved by the Court. This did not occur until December 2009. Mr. McAleese notes there is no suggestion that the applicant raised his human rights allegations when he was before the Court.
27Mr. McAleese further submitted that if I were to accept that there was a good faith reason for the delay, I should nevertheless not allow the Application to proceed because there would be substantial prejudice to the respondent. Mr. McAleese notes that the series of incidents that the applicant alleges date back several years before the Application was filed. He notes that the applicant had some difficulty recalling the exact details of some of the alleged events and submits that witnesses the respondent would have to call would experience similar difficulties because of the passage of time.
ANALYSIS AND CONCLUSIONS
28As discussed earlier, the applicant alleges that there were a series of discriminatory events during his employment. Assuming that the arrest and incarceration on November 28, 2008 was an event that could be linked to the earlier incidents of alleged discrimination, the Application would have been filed in time if it had been filed by November 28, 2009. It was not filed until March 9, 2010.
29In these circumstances, I find that it is not necessary to assess the reasons the applicant did not file the Application in the period from November 28, 2008 to November 28, 2009. While relevant as background, the main issue at this point is if there is a good faith explanation for the delay in filing in the period from November 28, 2009, the anniversary date of the last alleged discriminatory event, to March 9, 2010, when the Application was filed.
30The applicant does not allege that there was any Code-related explanation for the delay in this period. He testified that when he was discharged from Stonehenge on November 20, 2009, he was no longer suffering from depression and that he was functioning normally.
31The only explanation that the applicant has provided for not filing an Application in the period from November 28, 2009 to March 9, 2010, is that he was seeking legal advice. In his testimony he could not recall details of when he obtained advice. In his written submissions (provided in an email dated February 14, 2012), he indicated that he spoke to someone from “the Human Rights board” – which appears from his testimony to have been a reference to the Human Rights Legal Support Centre – “soon after my release” from Stonehenge. He also indicated that he filed the Application after meeting with the representative “a couple of times”.
32In the circumstances of this case, I am not persuaded that the applicant’s explanation for the delay in the period from November 28, 2009 to March 9, 2010 provides a good faith explanation for the delay in filing the Application.
33The applicant does not claim that he only became aware that he might have a Code-related claim against the respondent when he obtained legal advice soon after he was discharged from Stonehenge in November 2008. He was clear that he discussed the matter with his doctor at Stonehenge and that the doctor encouraged him to pursue the matter. He also discussed the matter with his criminal lawyer. Even if it were the case that the applicant did not become aware that he had grounds for an Application until soon after November 2008, there is no explanation for why, having obtained legal advice, he did not file the Application until March 2009.
34For these reasons, I find that the delay in filing the Application was not incurred in good faith and the Application is dismissed on that basis. In light of this finding, it is not necessary to address the respondent’s submission the delay would result in substantial prejudice to the respondent.
Dated at Toronto, this 8th day of March, 2012.
“Signed by”
Brian Cook
Vice-chair