Pieters v. Toronto Police Services Board, 2013 HRTO 1987

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Selwyn Pieters

Applicant

-and-

Toronto Police Services Board and William Blair

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: November 29, 2013

Citation: 2013 HRTO 1987

Indexed as: Pieters v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Selwyn Pieters, Applicant

Self-represented

William Blair, Respondent

Adam Guy and Naomi Calla, Counsel

Introduction

1The purpose of this Interim Decision is to address the request of the Chief of the Toronto Police Service (the “TPS”) to quash the Summons to Witness (the “Summons”) that the applicant served on him to appear at the hearing of the merits of the Application.

BACKGROUND

2On July 23, 2010, the applicant, who identifies as a Black, African Canadian male with dreadlocked hair, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which named the Toronto Police Services Board (the “respondent TPSB”) and William Blair (the “respondent Blair”), who is the Chief of the TPS, as respondents. He alleged that the respondents discriminated against him with respect to services because of his race, colour, ancestry, ethnic origin, and association with a person identified by a Code ground.

3Specifically, the applicant alleged that on the evening of June 20, 2010, while he was walking on a crowded sidewalk, a police officer from the TPS punched him in the back from behind and pushed her bicycle on him. He alleged that when he asked the officer why she was acting so aggressively, she responded that he was in her way.

4The applicant also alleged that in the early morning of June 21, 2010, he was in the same area, and saw a police officer forcibly removing two Black men from the front of a club. He alleged that several police officers from the TPS and the Royal Mounted Canadian Police (the “RCMP”) then began assaulting the two men. He alleged that one of the men was forced to the ground and continued to be assaulted, despite the fact that he was not resisting. He alleged that the man was handcuffed and made to stand, and was then choked by one of the officers, despite the fact that he was not resisting. He alleged that he yelled at the officer to stop assaulting the man who was not resisting. The applicant alleged that a TPS officer and three RCMP officers then accosted him (the applicant), and the TPS officer told him not to say anything or he would be arrested and charged with obstructing police.

5The applicant alleged that in both the above incidents he was treated the way he was because he is a Black, African Canadian male with dreadlocked hair. He described the police officers’ conduct as “racial profiling”.

6In section 7.c) of his Application (“What was the date of the last event?”), the applicant stated: “23/06/2010”. He alleged that after he sent a letter of complaint to the respondent Blair, the Toronto Sun published an article on June 23, 2010 with comments by Mark Pugash, the TPS’s spokesperson, which he found to be biased and indicative of a culture in the TPS that does not welcome scrutiny of police officers’ racist misconduct and criticism of their abuse of power.

7In section C4 of his Application (“To whom [in authority] did you complain?”), the applicant stated: “Chief of Toronto Police Service”. In section C5 (“Was there an investigation?”), the applicant checked off the box for “no”.

8In section C6 of his Application (“Explain why you believe that you were discriminated against based on your race, colour, ancestry… or ethnic origin.”), the applicant stated: “I was discrimination [sic] due to the practice of racial profiling and abuse of power on the part of the respondents.”

9On October 6, 2010, the respondent TPSB filed a Response, which stated that it should be removed as a respondent to the Application because the applicant’s allegations relate to the particular conduct of individual police officers, who were performing their statutory law enforcement duties, and that the Board has no knowledge of personal involvement in, or liability for, the incidents alleged in the Application.

10On October 29, 2010, the respondent Blair filed a Response, which denied the allegations of discrimination. With respect to the first alleged incident, the respondent Blair denied that the police officer punched the applicant in the back or pushed her bicycle on him. With respect to the second alleged incident, the respondent Blair stated that TPS officers had dealings with two men, that one of the men (“Mr. M.”) was arrested and charged with public intoxication, and that Mr. M. actively resisted arrest and was taken to the ground.

11On November 23, 2010, the applicant filed a Reply, which stated that the Tribunal should not dismiss the Application against the respondent TPSB on a preliminary basis because in Phipps v. Toronto Police Services Board, 2009 HRTO 1604, upheld on judicial review by the Divisional Court, 2010 ONSC 3884, the Tribunal held that the TPSB and the Chief of the TPS are jointly responsible for ensuring compliance with the Code and are jointly liable for the discriminatory actions of police officers.

12On October 1, 2012, the respondent TPSB filed an email, which stated that it is no longer taking the position that it is not liable for any alleged discriminatory conduct by the individual police officers, and that it accepts liability if there is a finding of discrimination by the Tribunal.

13On May 1, 2013, the Tribunal issued a Notice of Hearing to the parties, which informed them that the hearing is scheduled for December 2, 5 and 6, 2013. Pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure, in advance of the hearing, the parties disclosed to each other and filed with the Tribunal the documents that they intend to rely on, witness lists, and witness statements. Neither respondent put the respondent Blair on its witness list.

14On November 22, 2013, the applicant served a Summons on the respondent Blair, which summoned and required him to attend the hearing on December 2, 2013.

15On November 26, 2013, the respondent Blair filed a Request for an Order During Proceeding (“RFOP”), which requested that the Tribunal issue an order quashing the Summons.

16On November 27, 2013, the applicant filed a Response to the RFOP, which opposed the respondent Blair’s request to quash the Summons.

ANALYSIS

17Section 12(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides:

A tribunal may require any person, including a party, by summons,

(a) to give evidence on oath or affirmation at an oral or electronic hearing; and

(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal,

relevant to the subject-matter of the proceeding and admissible at a hearing.

18Rules 3.1 and 3.2 of the Tribunal Rules also provide:

3.1 On the request of a party, the Tribunal will provide a summons to witness in blank form and the party may complete the summons and insert the name of the witness.

3.2 Delivery of a summons to a witness is the responsibility of the party who obtained the summons.

19If a Summons is challenged, the burden is on the party who delivered the Summons to establish that the witness’s proposed evidence is relevant to decide the issues in the proceeding and is admissible at the hearing. See Konstan v. Berkovits, 2013 ONSC 6169 at paras. 17-21; Ramos and Kharbar v. The Independent Police Review Director, 2012 ONSC 7347 at para. 14; Summitt Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753 at paras. 47-49; and Ellis v. Peel District School Board, 2010 HRTO 2272 at para. 20.

20In his submissions, the respondent Blair stated that the Summons should be quashed because he cannot provide evidence that is relevant to decide the issues in the proceeding before the Tribunal. Specifically, he stated that he has no direct knowledge of the alleged incidents in the Application. He further stated that the TPS is not a legal entity, and that the applicant named him as a respondent to the Application because of his institutional capacity.

21In his submissions, the applicant stated that the Summons should not be quashed because the respondent Blair’s proposed evidence is relevant to decide the issues in the proceeding. The applicant provided a list of 19 reasons why he believes the respondent Blair’s evidence is relevant, which may be summarized as follows:

• When the respondent Blair was sworn in as Chief of Police, he made a commitment to prevent and stamp out racism in the TPS.

• At all material times, his mandate included administering the TPS and overseeing its operations.

• He is responsible for ensuring that the TPS’s anti-harassment and anti-discrimination policies and procedures, including those dealing with racism, are effective.

• He received the applicant’s complaint and either took action or omitted to take action in response.

• Under his command, Black, African Canadians, including the applicant, continue to be subjected to racial profiling, harassment and violence by the TPS.

• He recently announced that he has three legal opinions that support the legality of the TPS’s practice of “carding”, which a Toronto Star investigation showed disproportionately targets Black and Brown people.

• He is responsible for ensuring that TPS officers follow the policies and procedures on note taking. In the incidents at issue, none of the officers took notes about their interactions with the applicant.

• In November 2012, he instructed officers to block the doors of police headquarters to prevent the applicant and other Black lawyers and community members from attending a TPSB public meeting on racial profiling.

22In his submissions, the applicant also stated that the respondent Blair should not be able to use his position as Chief of the TPS to exempt him from being summoned in a legal proceeding.

23I agree with the applicant that the respondent Blair should not receive special treatment when he receives a Summons, but, in my view, that not only means that he should not be able to use his position to exempt him from being summoned; it also means that litigants should not be able to cite his position as the sole reason for summoning him to a legal proceeding. At the end of the day, the sole issue to be decided is whether the respondent Blair’s proposed evidence is relevant to decide the issues in the proceeding.

24In my view, the Summons should be quashed because the applicant has not met his burden of establishing that the respondent Blair’s proposed evidence is relevant to decide the issues in the proceeding. The respondent Blair was not present when the alleged incidents occurred on June 20 and 21, 2010. This is also not a case where multiple applicants have made allegations of a similar nature, and/or detailed and particularized allegations of systemic discrimination have been made. Furthermore, merely sending a complaint to the head of a large organization and naming him as a respondent in a legal proceeding is not sufficient to establish that his proposed evidence is relevant to decide the issues in the proceeding. Finally, it is obvious from the reasons cited by the applicant, that he has other disputes with the respondent Blair and the TPS, which are not directly related to the issues in this proceeding. The Tribunal cannot become a forum for extracting information pertaining to extraneous disputes between the parties.

ORDER

25The Summons that the applicant served on the respondent Blair is quashed.