Sedat Yaylacam v. Toronto Police Service, 2013 HRTO 1413

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sedat Yaylacam Applicant

-and-

Toronto Police Service Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: August 16, 2013 Citation: 2013 HRTO 1413 Indexed as: Yaylacam v. Toronto Police Service

WRITTEN SUBMISSIONS

Sedat Yaylacam, Applicant Bakhtier Shakhnazarov, Representative

Toronto Police Service, Respondent Michelle Wright, Counsel

1This Application was filed on March 6, 2013 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of ethnic origin, sex and marital status. The applicant alleges that he was subjected to discriminatory comments and conduct during the course of his arrest by various police officers.

2By way of Interim Decision 2013 HRTO 752, this Application was deferred pending the conclusion of criminal proceedings related to the charges against the applicant.

3On July 9, 2013, the applicant filed a Request for an Order During Proceedings (“RFOP”) seeking to reactivate and amend the Application. The applicant indicates that the criminal proceeding is concluded and that he was found not guilty on all charges. The applicant seeks to amend the Application to include further details regarding his concerns with respect to police treatment during his arrest and allegations with respect to his experiences while being held in a detention facility following his arrest, as well as allegations regarding the Crown’s handling of the prosecution.

4On July 30, 2013, the respondent filed response submissions not objecting to some amendments while opposing others. The respondent agrees that the Application can be amended to incorporate certain claims, which although disputed, further detail the allegations already raised in the Application. The respondent objects to the proposed amendments that do not relate to the Code, the proposed allegations regarding the applicant’s experiences while in detention and the allegations that relate to the conduct of Crown attorneys during the criminal trial.

5The applicant filed a reply on August 1, 2013 requesting that his amendments be permitted in whole. The applicant asserts that all of the amendments should be allowed because the events and issues raised in the RFOP are the direct consequences of the police officers’ discriminatory acts.

Reactivation Request

6The RFOP includes documentation confirming that the criminal proceeding is concluded and that the applicant was found not guilty on all charges.

7It appears that the criminal proceeding is no longer active. In these circumstances, I find that it is appropriate to reactivate the Application.

Amendment Request

8Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may “allow any filing to be amended.”

9In determining requests to amend applications filed under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

10The applicant’s proposed amendments appear to fall in five categories: 1. allegations regarding police treatment; 2. allegations regarding the applicant’s experiences while in a detention facility; 3. allegations regarding the conduct of Crown prosecutors; 4. allegations regarding the impact of the events on the applicant following the arrest, during detention and the trial and 5.) an increased monetary claim.

11While the respondent disputes the merits of the claims, the respondent does not object to amending the Application in relation to the first category. Thus, the respondent agrees that the Application can be amended to incorporate proposed paragraphs 1, 2, 3, 5, 15 and 16 as details regarding the original allegations about the police.

12In light of the respondent’s position, I am prepared to allow the applicant to amend the original Application to include proposed paragraphs 1, 2, 3, 5, 15 and 16 as connected to the scope of the original Application. I am also ordering that proposed paragraph 4 be added. I am satisfied that the allegation noted in paragraph 4 comes within the ambit of the applicant’s original Application as a claim of discrimination in relation to his arrest. This amendment is made without any indication or determination by the Tribunal as to the merits of the allegations, and without prejudice to any position the respondent may wish to take regarding the issues at the hearing.

13However, in my view, the proposed amendments in categories two and three are outside the scope of the original allegations. The original Application alleged that the police harassed and mistreated the applicant because of his gender, ethnicity and relationship with the alleged victim. The second and third category of proposed allegations are descriptions of the conduct by others and involve events beyond the arrest. Based on my reading of the proposed amendments, the alleged incidents in categories two and three are not part of the allegations against the respondent police, but rather are vis à vis other separate entities or individuals not named in this proceeding.

14I find that it would detract from the expeditious nature of the Tribunal process to permit the applicant to include numerous new allegations that not only expand the Application, but appear somewhat disconnected from the original concerns and impugn the conduct of non-respondent persons and entities. Accordingly, the request to amend the Application to add the second and third category of proposed allegations, specifically paragraphs 6-13 and 20-25 is denied.

15The applicant also seeks to amend the Application to increase the monetary compensation claimed. The respondent does not object to the amendment of the Application to increase the damages claim. The Tribunal has allowed amendments to remedial claims prior to the commencement of a hearing. See for example, Guzman v. Senton Incorporated, 2011 HRTO 1480; Marino v. Compuware Corporation of Canada, 2011 HRTO 1390; and Loney v. Combusco Enterprises, 2011 HRTO 1050. I see no reason to depart from this approach and allow the request to amend the monetary remedy in this regard.

16I note that, to the extent that the proposed allegations describe experiences that pertain to the emotional impact of the alleged events in the original Application, the applicant may relay such experiences in asserting his remedial claim.

ORDER

17The Application is reactivated.

18The Application is amended to incorporate the proposed paragraphs 1-5 and 15-16 and the increased monetary claim.

19The respondent is directed to file a Response (Form 2) within 35 days of the date of this Interim Decision.

20I am not seized of this matter