Oliver v. South Simcoe Police Service, 2013 HRTO 387

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Oliver

Applicant

-and-

South Simcoe Police Service, Bradford West Gwillimbury/Innisfil Police Services Board, Bruce Davis, Steve Wilson and Todd Ferrier

Respondents

-and-

South Simcoe Police Association

Intervenor

INTERIM DECISION

Adjudicator: Mary Truemner

Date: March 7, 2013

Citation: 2013 HRTO 387

Indexed as: Oliver v. South Simcoe Police Service

WRITTEN SUBMISSIONS

David Oliver, Applicant

Bruce Best, Counsel

South Simcoe Police Service, Bradford West Gwillimbury/Innisfil Police Services Board, Bruce Davis, Steve Wilson and Todd Ferrier, Respondents

Patty Murray, Counsel

South Simcoe Police Association, Intervenor

Caroline V. Jones, Counsel

Introduction

1This is an Application filed on January 26, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment, on the grounds of perceived ancestry and creed, arising out of the applicant’s termination from employment as a police officer with South Simcoe Police Service (the “Service”), and his subsequent suspension. The applicant also alleges harassment in the workplace, as well as reprisal or threat of reprisal under the Code.

2This Interim Decision deals with the respondents’ Request for Order During Proceedings to remove the personal respondents. It also deals with the Request to Intervene by the South Simcoe Police Association.

REMOVING PARTIES

3Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

4The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is 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?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

5The Application describes comments related to creed and ancestry made by the personal respondents Wilson and Ferrier, comments which may, if true, support a finding of personal liability against them. The applicant states in his Application (in answer to Question 9 on the Application Form) that the termination of his employment by the personal respondent Davis was racially motivated based on his belief of the applicant’s ancestry and creed. If true, this allegation could arguably support a finding of personal liability against the personal respondent Davis. The individual conduct of Wilson, Ferrier and Davis are central issues in this Application. These three individuals should remain as respondents in order to have a fair, just and expeditious resolution of the merits of the Application.

6I therefore deny the Request to remove Wilson, Ferrier and Davis.

7There is nothing, however, described in the Application to support a finding of personal liability against the other personal respondents: McDonald, Johnson, Carmichael and Cheesman. It would appear from the allegations described in the Application, and from the contents of the Response and Reply, that they were named simply because they communicated to the applicant concerns about his performance, not about his creed or ancestry, that were brought to them from various members of the service who had observed the applicant working. Then these personal respondents, in the course of their duties and their employment, directed the applicant to training or placed him on remedial or probationary status. There is nothing described in the Application which suggests that they might have known, or ought to have known, at those points in time, that the concerns brought to them might have been exaggerated or fabricated because of any discriminatory bias by some of the people reporting concerns.

8The applicant opposes the Request to remove any of the personal respondents, but the corporate respondent would be liable for the conduct of McDonald, Johnson, Carmichael and Cheesman, if found to be discriminatory. The applicant refers to publications which imply the corporate respondent may soon not be in a position to remedy any Code infringements, but this is speculation. If it comes to pass, then the applicant might make a request to add parties, although the applicant should note that the Tribunal is unlikely to add respondents in the absence of allegations which could support a finding of personal liability against them.

9I therefore grant the Request to remove four of the personal respondents, namely, McDonald, Johnson, Carmichael and Cheesman.

REQUEST TO INTERVENE

10On January 29, 2013, the South Simcoe Police Association (“the Association”), which is the applicant’s bargaining agent, filed a Request to Intervene as a non-party. The parties had 21 days to reply. On February 19, 2013, the applicant consented to the Association’s Request. The respondents have not filed anything with respect to their position.

11A union almost always has an interest in a human rights application involving a member, and, unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervenor status when requested. See, for example, Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13; and Marc-Ali v. Graham, 2010 HRTO 1321.

12Having considered the submissions, and in the absence of any opposition by the respondents, I see no reason in this case to depart from the Tribunal’s established practice regarding the granting of intervenor status when the applicant is a member of a bargaining agent. I am satisfied that the Association has an interest in the Application, and its Request to Intervene as a non-party is granted.

SUMMARY OF DECISIONS

13The Request to remove the following personal respondents is denied: Wilson, Ferrier and Davis.

14The Request to remove the following personal respondents is granted: McDonald, Johnson, Carmichael and Cheesman.

15The Association’s Request to Intervene is granted.

NEXT STEPS

16The parties have participated in mediation. The next step is a hearing, which the Tribunal will proceed to schedule. The scope of the Association’s participation in the hearing will be determined after the hearing dates have been set, and the parties have complied fully with Rules 16 and 17 of the Tribunal’s Rules of Procedure.

17Mediation-adjudication will be offered at the commencement of the first day of the hearing, pursuant to Rule 15A of the Tribunal’s Rules. If the parties do not agree to participate in mediation-adjudication, or if it does not resolve the Application, then the Tribunal will deal with any outstanding requests filed between now and the hearing, including any with respect to the relevance of findings made in the Judgement of the Adjudicator, Superintendent Tweedy, dated February 17, 2010. If there is time for evidence on the first day of the hearing, then the applicant’s first witness must be prepared to testify, whether that person be himself or another of his witnesses.