Afzal v. Regional Municipality of Peel Police Services Board, 2014 HRTO 1200

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sajid Afzal Applicant

-and-

Regional Municipality of Peel Police Services Board and Yvonne Galley Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: August 11, 2014 Citation: 2014 HRTO 1200 Indexed as: Afzal v. Regional Municipality of Peel Police Services Board

WRITTEN SUBMISSIONS

Sajid Afzal, Applicant Selwyn Pieters, Counsel

Regional Municipality of Peel Police Services Board, Respondent Lynda Bordeleau, Counsel

Yvonne Galley, Respondent Harry Black, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to amend his Application.

2By Application filed January 20, 2014, the applicant alleged that the personal respondent discriminated against him because of race, colour, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). The Application relates to one specific incident in which the applicant alleged that the personal respondent made discriminatory remarks to him on January 2, 2014.

3By Case Assessment Direction dated July 3, 2014, the Tribunal added the organizational respondent as a party to the Application on consent.

applicant’s Request to amend Application

4By Reply filed April 22, 2014, after retaining legal counsel, the applicant sought to amend his Application to add several additional allegations of discrimination and reprisal which pre-date and post-date the incident set out in his Application.

5In his Reply, the applicant replied to several assertions made by the personal respondent in her Response to his Application. In addition to these reply submissions, he sought to amend his Application to add the allegations of discriminatory conduct and reprisal contained in paras. 14, 19, 20, 22, 31, 32 and 34 of the Reply. The additional allegations that the applicant seeks to add to his Application can be divided into three categories: (1) allegations relating to a previous workplace harassment complaint that the applicant made against his previous Acting Sergeant in April 2012; (2) allegations relating to alleged harassment by the personal respondent at various points in 2012 and 2013; and (3) allegations that the personal respondent has reprised against the applicant following the filing of his Application. I address each of these categories of allegations below.

6The respondents oppose the applicant’s request to amend his Application. Among other things, the personal respondent submitted that many of the allegations have no apparent connection to the Code and that the proposed allegations are not connected in time and substance to the original allegation. The personal respondent also submitted that she would suffer prejudice if the amendments are granted as she would be deprived of the opportunity to respond to them or would have to file a supplementary Response.

7The organizational respondent submitted that the Tribunal should not grant the amendment request as many of the some of the additional incidents occurred more than one year before the date on which the Application was filed. It also submitted that many of the allegations are not related to any Code ground and that they substantially change the nature of the claims made in the Application.

8On July 17, 2014, the applicant replied to the personal respondent’s Response to his request to amend his Application. This is despite the fact that the Tribunal Rules of Procedure do not provide for a right of reply in such circumstances. By e-mail dated August 1, 2014, the applicant’s counsel sought an extension of time to reply to the organizational respondent’s Response. It was not clear whether the applicant was seeking an extension to file a Reply to the organizational respondent’s Response to the merits of the Application (form 2) or its Response to his amendment request.

9As noted above, the Tribunal’s Rules of Procedure do not provide a right of reply to a Response made to an amendment request nor does the Tribunal normally permit a party to file a reply to such a Response. For this reason, I consider it appropriate to determine the applicant’s amendment request based on the materials already filed with the Tribunal.

Allegations Relating To Complaint Made Against Previous Acting Sergeant

10At para. 14 of his Reply, the applicant purported to reply to an issue that the personal respondent raised in her Response where she stated “Prior to [the applicant’s] arrival [to H platoon in August 2012], I had heard that he had some problems with [his previous Acting Sergeant]. However, I did not get specific details.” This statement was included in a section titled “Background” in which the personal respondent provided background or contextual information leading up to her response to the January 2014 incident raised in the Application.

11In para. 14 of his Reply, the applicant set out information relating to a complaint he made against his previous Acting Sergeant in April 2012 as well as allegations that he was retaliated against for making this complaint in or around August 2012. At para. 19 of his Reply, the applicant stated that the incident with his previous Acting Sergeant was part of a series of events that has led to retaliatory action against the applicant by his superior officers. He alleged that the personal respondent was aware of this and “prey[ed]” on the applicant as a result.

Allegations Relating To Alleged Harassment By The Personal Respondent

12At para. 22, the applicant purported to reply to the personal respondent’s claim that she believed she and the applicant were friends. The applicant replied to this assertion by seeking to add several allegations of alleged harassment by the personal respondent that appear to have taken place between July 2013 and January 2, 2014. I note that it is not at all clear that any of the harassment allegations are connected to any of the Code grounds set out in the Application.

Allegations Of Reprisal Following The Filing Of The Application

13At paras. 31, 32, and 34, the applicant sought to amend his Application to add allegations of reprisal that allegedly occurred following the filing of his Application. In particular, the applicant alleged that the personal respondent retaliated against the applicant after he filed his Application by removing him from Terminal 1 and only having him work in Terminal 3 of Pearson International Airport. He also raised several incidents of alleged retaliation in March and April 2014.

Findings

14In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

15Having considered these factors, I grant the applicant’s request to amend the Application but only in part. At the outset, I note that the applicant’s request to amend his Application was made at an early stage of proceedings. Although the respondents have each filed Responses, no hearing has been scheduled and no disclosure has yet been made. This factor would generally weigh in favour of granting the applicant’s amendment request.

16Applying the factors set out above, I grant the applicant’s request to add the allegations of harassment by the personal respondent set out at para. 22 of the Reply and the allegations of reprisal following the filing of his Application contained in paras. 31 and 32 of the Reply. I deny the applicant’s request to add the allegations relating to the complaint made against previous Acting Sergeant contained in paras. 14 and 19 of the Reply. I also deny the applicant’s request to add the allegations made at para. 20 and 34 of his Reply.

17The allegations contained in para. 22 are of a similar nature to the incident complained of in the Application. Also, the alleged incidents took place within one year of the filing of the Application. I do note that the connection between the allegations and the Code is not immediately apparent. However, at this early stage, the Tribunal cannot weigh evidence or make findings in relation to evidence that might be brought forward in the case. The applicant will have the onus of making out a connection between these alleged incidents and the Code in a hearing on the merits. On balance, it is appropriate to permit the applicant to add these allegations as a series of incidents with the incident set out in the Application. I do not see any significant prejudice caused to the respondents by granting this request to amend at this early stage of proceedings. There would be prejudice to the respondents if they were prevented from responding to the applicant’s new allegations. However, this prejudice can easily be cured by permitting the respondents to file amended Responses.

18The amendments contained in paras. 31 and 32 all relate to instances of alleged reprisal occurring after the Application was filed. These incidents relate to the Application as the applicant is claiming that the respondents’ actions were taken in retaliation for the filing of his Application. I am not persuaded that the respondents would be significantly prejudiced by the amendment. As noted above, this matter remains at an early stage of proceedings and no hearing has yet been scheduled. As a result, I find that the amendment will not delay these proceedings or cause any undue prejudice to the respondents. I note that the respondents take the position that the allegations in paras. 31 and 32 do not constitute reprisal. This will be an issue for an adjudicator to decide after having heard evidence in the case. At the hearing on the merits, the applicant will have the burden of proving that the respondents undertook the actions alleged in paras. 31 and 32 with the intention of reprising against him for claiming and enforcing his rights under the Code.

19In my view, it is not appropriate to grant the applicant’s request to add the allegations relating to the complaint made against a previous Acting Sergeant contained in para. 14 and 19 of the Reply. These allegations are distinct from the allegations set out in the Application and relate to different individuals. The allegations also relate to events that took place outside the one year time period set out in s. 34(1) of the Code.

20While s. 34 (1) only applies only to when a person may file an Application with the Tribunal, the section sets out the Tribunal’s expectation that applicants will act in an expeditious manner and not unduly delay alerting respondents to new allegations. In this case, the amendment request was filed between 17 and 21 months after the alleged incidents set out in para. 14 of the Reply. Had the applicant included these allegations in the original Application, they may well have been dismissed for delay because they are out of time.

21The applicant has failed to provide a good faith explanation for the delay. In his Reply, he stated that police culture is a barrier to officers coming forward to allege misconduct. In my view, this factor is insufficient to explain the applicant’s failure to include the allegations when he did come forward with his Application. The applicant also stated that he was self-represented at the time he filed his Application. This too is not a sufficient to explain the delay in including the allegations in his Application.

22Finally, I deny the applicant’s request to add the allegations contained in 20 and 34 of his Reply. The allegation in para. 20 are in the nature of Reply to the statements made at para. 10 of the personal respondent’s Response. In my view, they should be treated as such and not as an additional allegation of discrimination for which the respondents could be liable. The allegations contained in para. 34 are more in the nature of background information and argument. As such, these allegations should not be added as allegations of discrimination for which the respondents could be liable.

Order

23For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to amend the Application is granted in part. The Application is amended to include only the allegations contained in paras. 22, 31, and 32 of the Reply.

b. It should be left to the adjudicator assigned to hear the case whether the applicant should be permitted to advance evidence in relation to the allegations contained in paras. 14, 19, 20, and 34 as contextual evidence.

c. The respondents may file an amended Response to address the allegations contained in paras. 22, 31, and 32 of the applicant’s Reply. They may do so within 28 days of the date of this Interim Decision. The applicant may file a Reply to the respondent’s amended Responses within 14 days of receiving their amended Responses. Since the applicant has not yet filed a Reply to the organizational respondent’s Response, he is granted an extension of time to file his Reply until 14 days from the date he receives the organizational respondent’s amended Response.

24I am not seized.