Macanovic v. Toronto Police Services Board, 2013 HRTO 1492

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jemila Macanovic Applicant

-and-

Toronto Police Services Board and Genevieve Anthony Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott Date: September 5, 2013 Citation: 2013 HRTO 1492 Indexed as: Macanovic v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Jemila Macanovic, Applicant Self-represented

Toronto Police Services Board, Respondent David Gourlay, Counsel

Genevieve Anthony, Respondent Megan Mutcheson, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to services and housing because of disability, and reprisal. The Toronto Police Services Board ("TPSB") and the applicant's former landlord, Genevieve Anthony ("Anthony"), are the named respondents. The Application contains allegations of discrimination by the police and the applicant's former landlord during the period July 30 to August 15, 2011.

2The Application was scheduled for a hearing on October 22, 2013 by Notice of Confirmation of Hearing ("Hearing Notice") dated June 6, 2013. Pursuant to the Hearing Notice, the parties were directed to disclose their arguably relevant documents to each other by June 27, 2013, and their hearing documents and witness statements to the parties and the Tribunal by September 9, 2013.

3By Interim Decision dated July 12, 2013, 2013 HRTO 1222, the Tribunal granted the applicant's request to amend the Application to add further allegations of discrimination against the TPSB for incidents that occurred on June 5 and 6, 2013 and for an alleged special procedure set up by the police to deal with complaints from the applicant. The TPSB did not object to these amendments.

4In the Interim Decision, the Tribunal ordered the TPSB to provide the following information/disclosure to the applicant by October 1, 2013:

a. The names of the police officers and staff who communicated with the applicant on June 5 and 6, 2013;

b. Information relating to the special procedure for addressing complaints by the applicant.

5The applicant has filed three Requests for Order During Proceedings ("RFOP") seeking further production of documents from the respondents.

Legal Test for Production

6It is well-established that a party seeking production of documents must demonstrate the information is "arguably relevant" to the proceeding. In order to establish "arguable relevance", a party must show that there is a nexus between the sought-after material and the subject-matter of the Application.

7Documents meeting the "arguable relevance" threshold may not be ordered disclosed or may be subjected to limited disclosure if there are extenuating circumstances, such as privilege claims or privacy concerns that need protection. In Lampi v. Princess House Products Inc., 2008 HRTO 1 at para. 10, the Tribunal noted that:

[d]ocuments which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing.

8Finally, in assessing any disclosure request, the Tribunal must also consider whether fairness requires that production be subject to certain limitations, terms or conditions.

Applicant's Production Requests

9The applicant filed a RFOP on July 8, 2013, seeking the following disclosure from the TPSB:

a. Compact Discs dated July 31, 2011 and August 4/5, 2011. The CDs were disclosed, but were blank;

b. Audio recordings for July 30, 2011 and August 15, 2011 that have not been produced;

c. Staff notes by Maxwell Carter, Reginald Wright and Ruth Munroe relating to the problems between the applicant and Anthony;

d. Complete Copy of the Policy and Procedure Manual entitled "Emotionally Disturbed Persons" (06-04);

e. CPIC checks involving the applicant;

f. Instructions given to operators regarding how they should deal with the applicant;

g. Any action taken against the operators to whom the applicant complained.

10In her July 8, 2013 RFOP, the applicant also asked the Tribunal to investigate why disclosure was not made in a timely or complete manner by the TPSB.

11On July 26, 2013, the applicant filed a second RFOP for production by the TPSB and Anthony. From the TPSB, she sought:

a. Copy of the letter provided by Anthony to the police about the applicant;

b. Policy manual for dealing with landlord and tenant issues;

c. Tape recording of a call made from the applicant at a Loblaws grocery store to a female operator on August 15, 2011;

d. Staff Sergeant Jackson's notes for August 15, 2011;

e. Communications between Anthony and the police after the applicant moved out on August 15, 2011;

f. Tape recording of the applicant's call to the police on July 30, 2011;

g. Any disciplinary letters following the applicant's complaints against individual police officers involved in the interactions between the police, Anthony and the applicant from May 1, 2011 to August 15, 2011.

12From Anthony, the applicant requested:

a. Medical documentation where Anthony raised concerns about the applicant to her doctor;

b. Medical documentation about Anthony's mental health at that time (around July 31, 2011).

13On August 13, 2013, the applicant filed a third RFOP seeking further disclosure from the TPSB:

a. CPIC, SIP or other checks conducted on the applicant;

b. Manuals on training and procedures relating to landlord and tenant disputes;

c. Un-redacted TPS procedure 06-04;

d. Police notes of the officers who attended at the applicant's home on July 31, 2011 in regards to the applicant's call for service on July 30, 2011;

e. Any information passed along to TPS operators at any given date;

f. Shawn's (Anthony's neighbour) contact information;

g. Leave to use past disclosure from other human rights cases.

14In the third production request, the applicant sought the date her former rental unit was rented out and the contact information for the person who rented it. This information could only be provided by Anthony.

15Both respondents have responded to the applicant's RFOPs for further production. Anthony objects to the production requested by the applicant on the basis that the records sought are irrelevant and a gross violation of Anthony's privacy. The TPSB has provided some of the production requested by the applicant and objects to the remainder of the production sought.

16In reviewing the responses by the TPSB, the TPSB has agreed to provide or has already provided the following production/information:

a. The CDs for July 31, 2011 and August 4/5, 2011 have been replaced and provided to the applicant;

b. The audio recordings of two calls to the police on July 30, 2011 have been provided to the parties. There are no further audio recordings on August 15, 2011;

c. The officers' notes who attended at the applicant's home on July 30 and 31, 2011;

d. Information regarding the "Special Interest Police" portion of CPIC. The applicant has requested that it not be provided to Anthony. The TPSB takes no position on that request;

e. An un-redacted version of TPS Procedure 06-04 entitled "Emotionally Disturbed Persons" has been provided to the parties. This version was in place in 2011 and 2013, the timeframe for the allegations. The only redaction is a phone number, the use of which is restricted to police officers only.

f. Information provided to the operators regarding how they should deal with the applicant is unnecessary because the Tribunal has already ordered disclosure by October 1, 2013;

g. No operators have been disciplined as a result of the applicant's complaints between May 1, 2011 and August 15, 2011;

h. The TPSB has been unable to locate a letter from Anthony to the police;

i. An un-redacted Toronto Police Service Procedure number 06-10, entitled "Landlord-Tenant Disputes" has been disclosed;

j. Staff Sergeant Jackson did not take a note of the interaction with the applicant on August 15, 2011, and as such, there is no note to disclose;

17The TPSB has denied any improper conduct on its part relating to its disclosure.

18In reviewing the response of the TPSB to the applicant's production requests, it appears that many of the applicant's requests have been met. This Interim Decision addresses only those requests that remain outstanding.

Notes of Munroe, Carter and Wright

19The TPSB objects to producing the notes of Munroe, Carter and Wright because their involvement was strictly for the purposes of assisting with the litigation. A portion of Munroe's e-mail was on the cover sheet for one of the officer's notes disclosed because Munroe had sought the assistance of Carter and Wright in obtaining the officers' notebooks.

20It does not appear that Munroe, Carter or Wright had any involvement with the events at issue other than to assist in the collection of the notebooks of the officers that did have direct involvement. As such, their notes do not have to be disclosed.

Redactions in the police officers' notes

21The applicant has raised a concern regarding the redaction of the police officers' notes. The respondents submits that the notes produced by the TPSB (not yet filed with the Tribunal) have been redacted to remove irrelevant information regarding other tasks the police officers recorded immediately before or after the event at issue. The only other item that has been redacted is the confidential personal information relating to a third party.

22The information in the police officers' notes concerning events that are unrelated to the applicant is not relevant to this Application. The redaction is appropriate for this reason.

23With respect to the confidential personal information of a third party, there is no information as to how that information is relevant to the issues before me. As such, there is no basis upon which this information should be ordered disclosed at this time.

Background Checks on the Applicant

24The applicant has requested background checks that were completed on her including information obtained through a unified search of MANIX, CIPS, CPIC, ECOPS and RICI.

25The TPSB objects to disclosure of this information on the basis of relevance and proportionality. The TPSB submits the applicant's history with the police is extensive. The TPSB submits further that the applicant's previous dealings with the police are known to her so disclosure is unnecessary. Further, it submits that the applicant has already been provided with a document entitled "Field Information Report" where the applicant was described as an Emotionally Disturbed Person ("EDP") and there are records of previous interactions where the applicant was described in the same way. Finally, the TPSB submits that it cannot access CPIC for any purposes other than law enforcement.

26The fact that the applicant was described as an EDP is only part of the issue in this case. The question before the Tribunal concerns the information in the possession of police and staff that may have influenced their dealings with the applicant in July/August 2011 and June 2013.

27At this stage in the proceedings, the various searches available to the police is not in evidence before the Tribunal. However, the applicant is entitled to the background checks that were conducted on her by the police and staff in July/August 2011 and June 2013, and disclosure of those checks. This disclosure is relevant because the information contained in the background checks may have influenced the applicant's treatment by the police and staff.

28To be clear, the Tribunal is not ordering production of the applicant's entire history with the Toronto Police Service ("TPS") as this case is not about that history. This case concerns the applicant's treatment in July/August 2011 and June 2013.

29This production should be made to the applicant alone. There is no indication in Anthony's response to the applicant's production requests that she is seeking access to this information.

Communications between Anthony and the police after August 15, 2011

30The TPSB objects to this production request on the basis that communications between Anthony and the police after the applicant left her rental unit are irrelevant. I agree. The allegations in the Application regarding Anthony are confined to a specific timeframe: July 30 to August 15, 2011. Communications after August 15, 2011 are not relevant and need not be produced by the TPSB.

Anthony's medical documentation

31The medical documentation of Anthony is not relevant to the issues in this case. The allegations against Anthony concern discriminatory treatment by Anthony against the applicant during the applicant's tenancy. There is no claim by Anthony against the applicant. As such, there is no nexus between the documentation sought and the issues in dispute in this matter.

32In addition, there are strong privacy concerns regarding Anthony's medical documentation. There must be a compelling reason to disclose such information. Where the documentation sought is not relevant to the issues in a case, there is no basis upon which confidential medical information should be produced.

Contact information for Anthony's neighbour

33The applicant has requested contact information for Anthony's former neighbour. There is no explanation as to how this information is relevant to the issues in this Application beyond the speculative assertion that the neighbour may have witnessed something. This assertion does not provide the necessary connection to establish arguable relevance. In any event, this information is not in the control of the respondents. In the absence of any indication as to the relevance of this information, this request is denied.

Leave to use past disclosure

34The applicant has also requested leave to use past disclosure regarding a former human rights complaint against the TPSB. This request is denied. There is no indication as to the specific information the applicant wants to rely upon and how this information is relevant to the issues in the case.

Information concerning rental unit after applicant moved out

35The applicant has requested the date her former rental unit was rented out and the contact information for the person who rented it. This information is not relevant to the issues in the Application and need not be provided by Anthony.

Complaints against legal counsel for the TPSB

36The applicant has made a number of complaints concerning the conduct of counsel for the TPSB regarding problems with disclosure, extension requests and not meeting timelines. In my view, there is no basis for these complaints. The applicant has filed multiple requests for extensive production from the TPSB. Many of these requests have been consented to by the TSPB and the material produced in a timely manner. It is important to note that the date for hearing production has not yet passed. If there have been issues around disclosure, for example, the blank CDs, the problem was inadvertent and quickly corrected. With respect to the applicant's submission that counsel for the TPSB has not met timelines, I would simply note that minor extensions have been granted to both parties to allow them to file their materials.

Direction

37The hearing will proceed on October 22, 2013, to hear the applicant's evidence. At the conclusion of that evidence, the Tribunal will be in a better position to address any outstanding issues. In the interim, the Tribunal is directing the parties to refrain from filing any further production requests until after the evidence has been heard on October 22, 2013.

ORDER

38The Tribunal makes the following orders:

a. Disclosure to the applicant of the background checks completed on her by the police and staff in July/August 2011 and June 2013. This disclosure must be provided to the applicant by October 1, 2013.

b. No further requests for production shall be filed until the hearing date of October 22, 2013 is concluded.