Dale James v. Toronto Police Services Board, 2013 HRTO 250

Human Rights Tribunal of Ontario

B E T W E E N:

Dale James

Applicant

-and-

Toronto Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: February 12, 2013

Citation: 2013 HRTO 250

Indexed as: James v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Dale James, Applicant

Osborne Barnwell, Counsel

Toronto Police Services Board, Respondent

Kalli Chapman, Counsel

Introduction

1This Application was filed on April 2, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that he was racially profiled by the police on January 6, 2012 and February 1, 2007.

2The applicant filed his Reply on June 18, 2012. In the Reply, he attached police incident reports documenting twenty occasions where he had been stopped by the police.

3After filing the Reply, the applicant retained legal counsel. On January 15, 2013, the applicant’s legal counsel filed a Request for Order During Proceedings (“RFOP”) seeking leave to amend the Application to add thirty-two additional incidents of alleged racial profiling by the police between April 9, 2006 and December 3, 2012, and 52 police officers involved in those incidents as individual respondents. Many of the new allegations were provided by the applicant in his Reply.

4The respondent objects to the amendment on the basis that the allegations do not constitute a “series of incidents” and are therefore untimely. The respondent submits the February 1, 2007 allegation was appropriately dealt with under section 45.1 of the Code. Finally, the respondent submits the individual police officers would be substantially prejudiced by having to respond to allegations going back to 2006 and documents relating to those incidents may not exist.

5In determining whether to permit an amendment, the Tribunal will consider the stage at which the request is made, the nature of the amendment and any prejudice caused by the amendment. See Hill v. Spectrum Telecom Group, 2010 HRTO 2066 at para. 8.

6The RFOP has been delivered at a relatively early stage of the Tribunal’s process. Pleadings have been completed and hearing dates have not yet been set. The respondent received notice of many of the additional incidents in June 2012 when it received the Reply.

7The real issue in the RFOP relates to the nature of the amendment. The respondent argues the additional incidents of alleged racial profiling are out of time as they date back to 2006 and the Tribunal has no jurisdiction to consider them.

8Section 34(1) of the Code requires that applications be filed within one year after the incident to which the application relates or if there was a series of incidents, within one year after the last incident in the series. Section 34 states:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

9The Tribunal has held that the word “series” in the phrase “series of incidents” under s. 34(1)(b) of the Code, refers to “a number of things or events of the same class coming one after another in spatial or temporal succession”. The Tribunal has also held: there must be some connection or nexus between the incidents that are alleged to form the series; a gap of more than one year between incidents is usually not considered to be part of the same series of events; and a series cannot be comprised of incidents relating to discrete and separate issues. See Pakarian v. Chen, 2010 HRTO 457, at para. 25 and Baisa v. Skills for Change, 2010 HRTO 1621, at paras. 16 and 22.

10In my view, the additional incidents of alleged racial profiling form a “series of incidents” for the purposes of section 34(1) of the Code. The alleged incidents all involve the applicant being stopped by police officers with the Toronto Police Service while he was walking or driving. In general, they involve him being asked for identification, insurance documentation, if he was selling drugs, and general questions about what he was doing and where he was going. There are thirty-two alleged incidents in the course of six years. There is no gap greater than one year between incidents and most incidents involve a gap of several months and in some cases, several weeks. Because the additional incidents are a “series of incidents”, they are timely and within the Tribunal’s jurisdiction to hear. It is therefore not necessary to deal with the respondent’s arguments regarding delay.

11With respect to prejudice, the respondent submits the records may no longer exist with respect to some of the incidents of alleged racial profiling. It appears from the Reply that many of the records do exist. If, after attempting to locate its records, the respondent determines there are no records for some of the incidents, that issue can be raised with the adjudicator assigned to hear this matter.

12The respondent submits further that the individual officers will be prejudiced by the amendment. It is premature to determine this issue because the individual officers have not been provided the RFOP. The applicant must deliver the RFOP to every individual officer that he seeks to add to the Application. These officers will then have an opportunity to respond to the RFOP and a decision will be made as to whether they should be added as individual respondents.

13The applicant can amend the Application to include the additional incidents of alleged racial profiling between April 9, 2006 and December 3, 2012. The style of cause in this matter has been amended to name the Toronto Police Services Board as the correct respondent.

14The respondent’s claim that the February 1, 2007 allegation has been appropriately dealt with will be addressed by the adjudicator assigned to hear this matter.

ORDER

15The Tribunal orders the following:

a. The applicant must deliver the RFOP to all of the police officers that he seeks to add as individual respondents to the Application.

b. The applicant may amend the Application to add the additional allegations of racial profiling, but not the police officers as individual respondents. The applicant must file the amended Application by February 17, 2013.

c. The respondent shall file an amended Response to the amended Application by March 17, 2013.