Navjit Buttar v. Halton Regional Police Services Board, 2013 HRTO 147

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Navjit Buttar

Applicant

-and-

Halton Regional Police Services Board

Respondent

-and-

Halton Regional Police Association

Intervenor

INTERIM DECISION

Adjudicator: Mark Hart

Date: January 28, 2013

Citation: 2013 HRTO 147

Indexed as: Buttar v. Halton Regional Police Services Board

1The purpose of this Interim Decision is to address certain issues raised in correspondence received from counsel for the respondent dated January 23, 2013.

2Hearing dates in this matter have been held on September 24, 25 and 26, 2012 and on January 22, 2013. At the conclusion of the hearing date on January 22, 2013, it was understood by me and by all parties that all evidence to be called by the parties had been heard, and a date already had been set for February 11, 2013 to hear oral argument.

3Prior to concluding the proceeding on January 22, 2013, I articulated for the parties some of the issues I wanted them to address in final argument. In particular, I indicated that I wanted to hear submissions on the following issues:

a. To what extent did the duty to accommodate under the Code require the police service to extend the 12 month probationary period or potentially re-start the probationary process at some future time or consider whether to do so? If so, whether any failure on the respondent’s part to do so in the specific circumstances of this case amounts to a violation of the procedural or substantive aspects of the duty to accommodate?

b. Whether and if so when the police service ought to have had the applicant re-assessed by Dr. Zielinsky, and whether any failure on the respondent’s part to do so amounts to a violation of the procedural or substantive aspects of the duty to accommodate?

c. What is the impact of my findings in regards to the foregoing issues on any agreement by the applicant to forego his probationary constable position and assume a civilian role?

4In correspondence dated January 23, 2013, the respondent wrote to address two issues: (1) the issue of the “guaranteed re-commencement” of a 12 month probationary period (as compared to an “extension” of the probationary period) as a form of necessary accommodation; and (2) whether the failure to arrange for the re-assessment of the applicant by Dr. Zielinsky (or some other practitioner) was a violation of either the substantive or procedural duty of accommodation.

5The respondent’s concern relates to the raising of issues as potential sources of liability which were not identified at the outset of the hearing. While appreciating that the focus of a hearing may evolve as it unfolds, the respondent takes the position that the notions of a “guaranteed re-commencement” of a 12 month probationary period or a re-assessment by Dr. Zielinsky were never raised as possible forms of accommodation sought by the applicant. The respondent requests the ability to present further evidence on these two points when the hearing re-commences on February 11, 2013.

6The respondent’s request is opposed by the applicant. The applicant states that that the issue of a guaranteed re-commencement of the 12 month probationary period was raised by one of the respondent’s witnesses, Mr. Kelertas, in his examination-in-chief, and that respondent’s counsel already has had full opportunity to provide any required evidence on this issue. The applicant further states that after Dr. Zielinsky was cross-examined, respondent’s counsel already has had full opportunity to ask any further questions or provide any further evidence regarding the potential re-assessment of the applicant. The applicant’s position is that it would be unfair to allow the respondent to introduce further evidence at this point in the proceeding.

7The intervenor takes no position on whether the respondent should be permitted to introduce further evidence at this stage of the hearing.

8From the outset of this hearing, it has been clear that one of the main issues in this proceeding would be the interaction between the 12 month probationary period as set out in the Police Services Act and the duty to accommodate under the Code. In the hearing days in September 2012, it is correct to state that the language used in evidence in relation to this issue was whether the applicant’s probation period could be “extended”. However, the notion of a “guaranteed re-commencement” of the probationary period at some later point in time was raised in the evidence-in-chief given by the respondent’s own witness, Mr. Kelertas. If evidence was to be led by the respondent regarding why a “guaranteed re-commencement” of the probationary period was not feasible or what the impact of such a course of action might be, in my view the respondent had full opportunity to do so.

9While it is correct that on the first day of hearing, I sustained certain objections raised by the respondent on the basis that evidence being given by the applicant did not relate to issues raised in the Application, these issues related to alleged actions or omissions by the respondent in the period prior to September 9, 2010 when the applicant was notified of the intention of the respondent’s Chief of Police to recommend to the Board that the applicant’s status as a probationary constable be terminated. The issue of whether the respondent complied with the duty to accommodate in relation to the action taken by virtue of the September 9, 2010 letter was clearly raised by the applicant and is the principal issue before me. The precise manner in which the respondent may have violated the duty to accommodate is an issue for me to determine on the basis of all of the evidence before me, including the respondent’s evidence through Mr. Kelertas that there was internal discussion about a potential “guaranteed re-commencement” of the probationary period, but this was not offered to the applicant.

10With regard to Dr. Zielinsky’s evidence, it was clear from his response to questions posed on cross-examination and from further questions asked by me that there was an issue about the potential re-assessment of the applicant at some later point in time. After I had asked questions of Dr. Zielinsky on this point, I afforded both parties the opportunity to ask any questions arising from my questions, and they did so. If there was any further evidence to be given by Dr. Zielinsky, then it is my view that it should have been elicited at that time.

11For the above reasons, the respondent’s request is denied.