Oliver v. South Simcoe Police Services Board, 2012 HRTO 863

Human Rights Tribunal of Ontario

Between:

David Oliver Applicant

-and-

South Simcoe Police Services Board, South Simcoe Police Service, Bruce Davis, Al Cheesman, Deborah Carmichael, Tom McDonald, Craig Johnson, Steve Wilson and Todd Ferrier Respondents

Interim Decision

Adjudicator: Sherry Liang Date: May 1, 2012 Citation: 2012 HRTO 863 Indexed as: Oliver v. South Simcoe Police Services Board

Appearances:

David Oliver, Applicant | Bruce Best, Counsel South Simcoe Police Services Board, South Simcoe Police Service, Bruce Davis, Al Cheesman, Deborah Carmichael, Tom McDonald, Craig Johnson, Steve Wilson and Todd Ferrier, Respondents | Elizabeth Keenan, Counsel

1This is an Application filed on January 26, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The Tribunal issued an Interim Decision on March 2, 2009 (the "March 2009 decision"), deferring the Application pending completion of a related proceeding under the Police Services Act, R.S.O. 1990, c.P.15 (the PSA). The decision stated, among other things:

...the Tribunal has determined that it is appropriate to defer the Application pending completion of the police proceeding. The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline how the Application may be brought back on after the police proceeding.

3Rule 14.4 states that where an application is deferred pending the outcome of another legal proceeding, a request to proceed must be filed no later than 60 days after the conclusion of the other proceeding. On October 15, 2010, the applicant filed a request to re-activate the Application. The respondents oppose re-activation of the Application on the basis that the request to re-activate is untimely.

4I held a conference call on June 17, 2011 to receive submissions from the parties on the request to re-activate as well as a request by the respondents to dismiss the Application based on section 45.1 and/or abuse of process. In my Interim Decision of September 8, 2011, 2011 HRTO 1662 I denied the request to dismiss under section 45.1/abuse of process. I also directed the applicant to file an affidavit to support factual assertions made during the conference call, relevant to the request to re-activate, and indicated that a hearing would be convened if the respondents indicated they wished to cross-examine the applicant on the affidavit. As the respondents did make a request to cross-examine, a hearing was held on April 11, 2012 for the purpose of receiving the evidence and submissions on the applicant's request.

Background

5The Application alleges discrimination in employment, on the grounds of perceived ancestry and creed, arising out of the applicant's termination from employment as a police officer with the South Simcoe Police Service (the Service). The applicant also alleges harassment in the workplace, as well as reprisal or threat of reprisal under the Code.

6When the Application was filed, the applicant indicated that the facts of the Application were part of an ongoing proceeding dealing with charges under the PSA. He submitted a copy of Notices of Hearing under that Act, advising him of a hearing to consider charges of misconduct and unsatisfactory work performance against him. The applicant asked the Tribunal to defer the Application pending completion of the other proceeding.

7The respondents made submissions on the request to defer and, as indicated above, the Tribunal decided to defer the Application pending completion of the PSA proceeding. The respondents were therefore not required to file a Response to the Application at the time.

8The hearing under the PSA proceeded before a Superintendent assigned to hear the charges. The applicant was represented by legal counsel throughout. After 17 days of hearings and 3 days of pre-hearing motions, the Superintendent issued a decision on February 10, 2010, finding the applicant not guilty on all charges.

9As the PSA proceeding concluded on February 10, the applicant was required to file his request to re-activate no later than April 10, 2010. In fact, he made his request on October 15, 2010, some six months late.

10The applicant states that he did not receive a copy of the March 2009 decision, although the Tribunal's records indicate it was sent to him at the email address he provided. He did not rule out the possibility that another member of his household, who has access to the same email account, might have inadvertently deleted it before he saw it. In any event, the applicant was clear that he understood his Application had been deferred by the Tribunal, pending the completion of the PSA proceeding on his charges.

The Explanation for the Delay

11In his affidavit, the applicant describes other events that were unfolding during this time. Another officer had initiated a complaint under the PSA against two sergeants, involving allegations about conduct towards the applicant. At the time he filed the Application, the applicant understood that the investigation on this other complaint was proceeding. As well, the applicant understood that as a result of evidence given during the hearing of his charges, there would likely be disciplinary proceedings against his Chief of Police based on the Chief's conduct towards the applicant. In fact, charges were initiated in September 2010 against the Chief.

12In his affidavit, the applicant states that when he was advised that a decision on the PSA charges was to be released, he contacted the Case Processing Officer (CPO) at the Tribunal responsible for his Application. In his evidence, he states that he told the CPO about the decision on his PSA charges, and the other outstanding matters arising out of his termination. He made notes of his conversation with the CPO, and those notes indicate that he was told not to "bring back complaint until all the related PSA matters (Davis, etc.) are dealt with first."

13The applicant does not dispute that when he requested deferral of his Application at the outset, it was based on the outstanding PSA charges against him, and not based on any other PSA matters however related to his termination. Nevertheless, he states that he understood from the conversation with the CPO that his Application did not need to be re-activated until after the conclusion of those other matters. He states in his affidavit that he always intended to pursue his Application, and that he relied on the advice he received from the Tribunal with respect to the steps he needed to take to advance it.

14The applicant took no steps to re-activate his Application until, after a conversation with a lawyer for his police association in October 2010 in which the March 2009 decision was brought to his attention, he came to realize that he should have requested re-activation following the February 2010 decision on his charges.

15The respondents submit that the applicant's assertion that he always intended to pursue his Application should be given little weight. It was incumbent on him to act with diligence and the facts suggest that he either forgot about it or was cavalier about pursuing the Application. They also submit that they have been prejudiced in not being permitted to call evidence from the CPO on the purported conversation of February 8, 2012. There is a procedure and a deadline for re-activation of an Application that has been deferred, and the Tribunal has an interest in requiring adherence to its Rules unless there is a good reason. In the respondents' submission, the applicant has not provided a good reason to waive the time lines for re-activation. Further, the applicant's actions have resulted in delay in dealing with his Application, which results in prejudice to the respondents. The passage of time in itself has a prejudicial effect on witnesses' memories and their availability.

Decision

16The question before me is not without doubt. In certain respects the applicant has not acted with the greatest diligence. While he places great reliance on a conversation with a CPO at the Tribunal, he had the means to seek his own advice about his rights and obligations with respect to the re-activation of his Application. The applicant had legal assistance in completing the Application. He was represented by counsel throughout the PSA hearing. He also evidently had access to counsel for the police association. Given the importance of the Application to him, and his understanding from the beginning that it was deferred pending the PSA charges against him, he should have taken steps to confirm the information he states he was given by the CPO.

17Nonetheless, I have decided on balance to waive the strict application of Rule 14.4 of the Tribunal's Rules and permit late re-activation of this matter. In arriving at this conclusion I take into account the following:

• The Application was filed in a timely way under section 34(1) and there is no question about the Tribunal's jurisdiction to deal with the Application;
• While the applicant may be faulted for not seeking his own advice with respect to his obligations following the decision on his PSA charges, he had some reason to believe that no action was required on his part during this time;
• As soon as the applicant learned of the requirements of Rule 14.4 and their possible implication for his Application in October 2010, he took steps to inquire into his rights and to file a Request to re-activate the Application. His actions at this time are consistent with his assertion that he never intended to abandon his Application and I have no reason to conclude that he either forgot or was cavalier about pursuing it;
• Although there is some prejudice to the respondents from the applicant's delay in seeking re-activation, resulting from the passage of time and its inevitable impact on witnesses' availability and memories, there is no concrete, identifiable prejudice to their ability to respond to the Application;
• The respondents have known of the allegations against them since the Application was filed and so were in a position to take steps to preserve evidence or memory;
• The six months delay in seeking re-activation has to be considered within the context of the Tribunal's decision to defer the Application, resulting in placing the Application on hold pending the other proceeding;
• In contrast to the impact on the respondents, the prejudice to the applicant in not granting the request to re-activate is the dismissal of an otherwise timely Application within the Tribunal's jurisdiction;
• The time line at issue is found in the Tribunal's Rules and is not a statutory time line. The Tribunal has the authority to lengthen or shorten time limits in the Rules, or waive or vary their strict application to ensure the fair, just and expeditious resolution of matters before it (Rule, 1.7, 5.2);

18In all the circumstances, although it may be said that dismissal of the Application would be an "expeditious" resolution, I find it would not be fair or just.

19The applicant's request to re-activate the Application despite his delay in seeking the re-activation is granted. No one has requested a further deferral of the Application.

20The respondents are directed to file a Response to the Application within 35 days of this Interim Decision.

21I am not seized of this matter.