Sandhu v. Regional Municipality of Peel Police Services Board, 2014 HRTO 1394

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Baljiwan Sandhu

Applicant

-and-

Regional Municipality of Peel Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: September 18, 2014

Citation: 2014 HRTO 1394

Indexed as: Sandhu v. Regional Municipality of Peel Police Services Board

WRITTEN SUBMISSIONS

Baljiwan Sandhu, Applicant

Barry Swadron, Counsel

Regional Municipality of Peel Police Services Board and Jennifer, Respondents

Glenn Christie, Counsel

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 employment because of race, colour, ancestry, place of origin, ethnic origin and reprisal.

2The applicant is a member of the respondent police service and holds the rank of Detective Sergeant. The applicant states that he was born in Mukstar India in 1962 and immigrated to Canada in August 1981. The Application concerns the applicant’s allegation that he was subjected to discriminatory conduct in the promotion process for vacancies at the rank of Inspector throughout 2013 and, as a result, was not promoted.

3The respondents filed a Request for an Order During Proceedings with their Response seeking an order : 1) striking out certain untimely allegations and 2) removing the individual respondent, Chief of Police Jennifer Evans, from the Application. Regarding the first aspect of their request, the respondents submitted that at paragraph six of the Application the applicant describes several alleged incidents of discrimination which occurred between 25 and seven years before the commencement of this Application. The respondents submitted that these allegations are seriously out of time, pursuant to section 34(1) of the Code and that the applicant provided no explanation for his delay in raising these allegations. Accordingly, the respondents submitted that the applicant did not establish that this delay was in good faith, pursuant to section 34(2) of the Code. The respondents submitted that these allegations are vague and irrelevant to the real issues in this Application. The respondents submitted that the respondents have and will continue to suffer substantial prejudice if the Tribunal does not strike out these allegations. The respondents submitted that, assuming the applicant can name the individuals referred to in paragraph six (which he has not done), the respondents will have to locate them and determine what memories they have of these alleged incidents. The respondents submitted that the inherent prejudice is obvious, serious and irreparable.

4Regarding the request to remove the individual respondent, the respondents submitted that the organizational respondent is responsible for the acts and omissions of the members respondent police service. The respondents also submitted that the Chief of Police, while obviously an important position, is not the employer of the members of the service. The respondents submitted that the Application makes no reference to the individual respondent, except to state that she signed the letter advising the applicant that he would not proceed further in the promotion process. The respondents submitted that the organizational respondent is alleged to be responsible for the conduct alleged by the applicant and acknowledges that it is responsible for the individual respondent’s alleged conduct. The respondents submitted that the organizational respondent is able to respond to the remedial orders of the Tribunal. The respondents submitted that there is no compelling reason to continue the Application as against the individual respondent because the alleged conduct does not relate to her and the applicant does not seek a remedy against her. The respondents submitted that the applicant would suffer no prejudice if the individual respondent is removed from the Application.

5The applicant filed a Response to a Request for an Order opposing the respondents’ requests. The applicant submitted the incidents set out in paragraph six of the Application do not represent claims against the organizational respondent. The applicant submitted that these incidents provide context regarding the applicant’s employment and his experiences while employed by the respondent police service. The applicant submitted that these incidents provide relevant background to the issues of racial discrimination within the organizational respondent and indicate the struggle the applicant has undergone to pursue his career.

6Regarding the request to remove the individual respondent, the applicant concedes that the organizational respondent is a corporate respondent that has been named and is vicariously liable for all employees of the respondent police service, including the individual respondent. The applicant submitted, however, that, as the Chief of Police, the individual respondent is analogous to a corporate respondent because of the role a police chief plays in leading and administering a police force. The applicant submitted that the conduct of the Chief of Police is squarely in issue in this Application because the Chief of Police has an integral part in the promotion process, including providing input and approval, and the Chief of Police is responsible for establishing policies addressing diversity and ensuring compliance with the Code in the police service. The applicant also submitted that the individual respondent has made comments recorded in a newspaper article in December 2012 that call into question her commitment to creating an inclusive culture within the organizational respondent.

Analysis and Decision

Delay

7Section 34(1) and (2) state as follows:

(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.

8The Applicant’s complaint in this Application was that he was denied a promotion for discriminatory reasons. The applicant does not seek a remedy regarding the incidents set out a paragraph six of the Application. Rather, the applicant seeks to rely on these incidents as contextual evidence to support his allegation that the respondents improperly denied him a promotion. In my view, the incidents described at paragraph six are not the “incident(s) to which the application relates” and are not caught by section 34(1)(a) and I decline to strike them from the Application. The relevance and weight to be afforded this evidence, if any, are matters for the hearing adjudicator to decide. I agree with the respondents, however, that these allegations lack sufficient particulars to allow the respondent to investigate and defend them. In my view, it is appropriate to require the applicant to provide particulars, especially regarding who committed or may have witnessed the alleged incidents, regarding the allegations described at paragraph six of the Application.

Removal of Individual Respondent

9Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In in Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a non-exhaustive list of factors to consider in assessing whether a personal respondent should be removed, as follows, at paragraph 5:

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 is 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.

10The organizational respondent is a party to the Application and is responsible for the individual respondent’s actions. The applicant does not suggest that the organizational respondent is not capable of responding to any remedial order the Tribunal may grant. Most importantly, there is no compelling reason to continue the Application as against the individual respondent. The Application contains only one reference to the individual respondent and no allegation that she did anything that violated the applicant’s Code rights. The applicant does not seek a personal remedy as against the individual respondent and the Application discloses no basis for one. I find no merit in the applicant’s submission that the individual respondent is in effect an organizational respondent by virtue of her duties as a Chief of Police. As a police chief, the individual respondent is responsible, in the course of her duties, for all aspects of the operations of the organization respondent, including ensuring compliance with the Code. This fact is not, of itself, a proper basis for continuing the Application as against the individual respondent. In these circumstances, the Tribunal shall remove the individual respondents and amend the style of cause accordingly.

Order

11The Tribunal orders as follows:

1. The respondent’s request to strike paragraph six from the applicant’s narrative to the Application is denied;

2. Within 14 days of the date of this Interim Decision, the applicant shall file with the Tribunal and deliver to the respondent particulars regarding the allegations set out in paragraph six of the applicant’s narrative to the Application;

3. Within 35 days of the date on which the respondent receives the particulars described in paragraph 11(2), above, the respondent may file with the Tribunal and deliver to the applicant its Response to the allegations set out in paragraph six of the applicant’s narrative to the Application;

4. Within 14 days of the date on which the applicant receives the respondent’s Response described in paragraph 11(3), above, the respondent may file with the Tribunal and deliver to the applicant its Reply to the respondent’s Response; and,

5. The individual respondent is removed from the Application and the style of cause shall be amended accordingly.

12I am not seized of this matter.