R.M. v. Toronto Police Services Board, 2013 HRTO 1472

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.M.

Applicant

-and-

Toronto Police Services Board, William Blair, Christopher Groff, and Peter Eckersall

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: August 29, 2013 Citation: 2013 HRTO 1472 Indexed as: R.M. v. Toronto Police Services Board

WRITTEN SUBMISSIONS

R.M., Applicant Selwyn A. Pieters, Counsel

William Blair, Brian Kellar, Christopher Groff and Peter Eckersall, Respondents Lisa C. Cabel, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 16, 2010, alleging discrimination with respect to services, goods and facilities because of race, colour, ancestry, ethnic origin, age and association with a person identified by a prohibited ground of discrimination.

2In addition to the Toronto Police Services Board (the “TPSB”), the Application names the following individual respondents: Police Chief William Blair, and Police Constables (“PCs”) Brian Kellar, Christopher Groff and Peter Eckersall (the “Respondent Officers”).

3As summarized in an earlier Interim Decision dated February 25, 2011, 2011 HRTO 410, the applicant alleges, in essence, that the respondents engaged in racial profiling and improperly targeted him for arrest and detention based on Code-related grounds. The Application includes allegations relating to the applicant’s arrest on January 5, 2010, and involving PCs Groff and Eckersall.

4This Interim Decision addresses the Respondent Officers’ Request for an Order During Proceedings (“RFOP”) to remove the individual respondents, PCs Eckersall, Groff and Kellar.

ANALYSIS AND DECISION

5Rule 1.7(b) of the Tribunal’s Rules of Procedure affirms the Tribunal’s power to “add or remove a party”.

6In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal outlined the following list of “non-exhaustive” factors in considering whether a personal respondent should be removed:

1. Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
2. 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?
3. Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
4. 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?
5. Would any prejudice be caused to any party as a result of removing the personal respondent?

7In their RFOP, the respondent Officers submit that the allegations concerning PCs Eckersall, Groff and Kellar are in respect of actions they took as members of the Toronto Police Service in the ordinary course of their duties. They also submit that Chief Blair is alleged to be liable for the same conduct, and that Chief Blair has assumed responsibility for the conduct of these Officers, should it be determined that the applicant’s Code rights were violated in the course of his dealings with them.

8The respondent Officers also submit that there is no issue as to Chief Blair’s ability to respond to or remedy the alleged Code infringement, and no compelling reason to continue the proceeding as against PCs Eckersall, Groff and Kellar. Finally, the respondent Officers submit that no actual or potential prejudice would be caused by removing these Officers.

9In response to the respondent Officers’ RFOP, the applicant essentially submits that, given the direct and significant involvement of the individual respondents, whose conduct, in part, is central to the issues in this case, there is no compelling reason to remove them as respondents.

10The Tribunal notes that, as a result of the Tribunal’s Interim Decision in this matter dated June 20, 2013, 2013 HRTO 1102, dismissing some of the allegations in the Application on the basis of delay, it appears that there are no longer any allegations in the Application relating to PC Kellar. As such, it appears that there is no reason for the proceeding to continue as against PC Kellar, and I find that it is appropriate to remove PC Kellar as a party to the proceeding.

11With respect to PCs Eckersall and Groff, having considered the parties’ submissions and the materials before me, I am satisfied that these individual respondents should not be removed from the Application at this stage of the proceeding. It appears from the remaining allegations in the Application that the conduct of PCs Eckersall and Groff is a central issue. Tribunal jurisprudence has held that it is appropriate to continue a proceeding as against a respondent party where it is the conduct of the individual respondent that is a central issue. See Lagana v. Saputo Dairy Products Canada, 2010 HRTO 155, and Bianca v. Maritime Travel, 2010 HRTO 1077.

12In the present case, I find that there is a compelling basis to continue with the individual respondents, PCs Eckersall and Groff, as named parties in this proceeding. The respondent Officers’ RFOP to remove them is dismissed.

ORDER

13The individual respondent, Brian Kellar, is removed as a party to the Application, and the style of cause is amended accordingly.