Breen v. Hanover Police Service, 2014 HRTO 1474

Human Rights Tribunal of Ontario

B E T W E E N:

Kelly Breen

Applicant

-and-

Hanover Police Service, Hanover Police Services Board

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: October 3, 2014

Citation: 2014 HRTO 1474

Indexed as: Breen v. Hanover Police Service

APPEARANCES

Kelly Breen, Applicant

Andrew Pinto, Counsel

Hanover Police Service and Hanover Police Services Board, Respondents

David Cowling, Counsel

Introduction

1The hearing in this matter commenced on July 3 and 4, 2014. The applicant’s direct evidence was substantially completed during these hearing dates.

2The hearing is continuing on November 4, 2014. There are a number of issues that have been raised by the parties. This interim decision addresses these issues.

Particulars

3On August 13, 2014, the applicant provided particulars of ongoing discrimination and reprisal, beyond what is stated in the Application, that included the following:

a. The respondents, including Jason Rahn, Inspector Knoll and Ian Sanderson, perpetuated rumours both within the HPS (Halton Police Service) and beyond that Constable Breen was delusional and/or mentally unstable;

b. The respondents acted unreasonably and/or in bad faith in alleging that Constable Breen was in violation of the respondent’s Workplace Violence and Harassment Policy;

c. The respondents acted unreasonably that Constable Breen was delinquent or derelict in his duties with respect to delivery of Crown Briefs.

4As stated above, the applicant has completed his direct evidence. During his direct evidence, he testified about: (a) rumours being circulated in the workplace that he was delusional and/or mentally unstable; (b) his alleged breach of the Workplace Violence and Harassment Policy; and (c) the assertion that he was derelict in his duties in filing Crown briefs, and filed written documents concerning the same. As the applicant has given this evidence, there is no need to provide further particulars.

5The respondents ask the Tribunal to require the applicant to identify what part of his evidence relates to a breach of the Code, in relation to these allegations. In my view, this task is better left to final argument. The cases of Persaud v. Toronto District School Board et al. (No. 2), 2008 HRTO 12 and McKay v. Toronto Police Services Board, 2009 HRTO 342 are not applicable because they dealt with requests for particulars before any evidence was heard. These cases do not stand for the proposition that a party is required to link his evidence to a breach of the Code before the evidence is completed.

6Whether the applicant will be able to make out these claims of discrimination and reprisal will be determined on the basis of all of the evidence before me, at the conclusion of the hearing.

Respondents’ Revised Will Says

7During the hearing, the applicant withdrew his allegation of reprisal concerning his failure at the use of force training on April 30, 2013. He objects to evidence in the respondents’ revised will says concerning the use of force training that day.

8In his particulars of ongoing discrimination and reprisal, the applicant asserts the following:

a. The respondents made insufficient, insincere, or unreasonable efforts to allow the applicant to retake his use of force test by:

a. Involving Deputy Chief Dan Rioux in communications regarding retaking the test;

b. Presenting inappropriate or unnecessary information to the Ontario Provincial Police, the Ontario Police College and the Guelph Police Service that the respondents knew or ought reasonably to have known would discourage those agencies from allowing the applicant to retake the use of force test.

b. The respondents did not involve the applicant or advise him of communications the respondents were having with third parties about opportunities for the applicant to retake the use of force test.

c. Constable Sanderson unreasonably refused to retest the applicant regarding his use of force qualification.

d. Despite having re-qualified by passing his use of force test in Guelph in February 2014, the respondent per Chief Tracy David denied the applicant the use of his gun and has refused to reinstate him to his former position.

e. The respondents unreasonably formulated and proceeded with Police Service Act charges against Constable Breen for complaining about Deputy Chief Dan Rioux.

9At this stage in the proceeding, I am unable to make a determination regarding the relevance of the use of force training on April 30, 2013 to the above allegations. As such, I cannot make a ruling at this time on the whether the evidence in the revised will says is relevant and therefore admissible.

10In my view, I will be in a much better position to determine this issue after the evidence of Chief David and Inspector Knoll has been heard. Accordingly, I would like to hear from these two witnesses at the commencement of the respondents’ case. It is my expectation that I will be able to determine the relevance of the April 2013 use of force training after this evidence has been heard.

Dr. Macdonald’s Evidence

11The applicant is requesting that the respondents be directed to advise their position regarding Dr. Macdonald’s evidence.

12Counsel for the respondents confirmed they are not disputing Dr. Macdonald’s qualifications. The respondents’ position is that Dr. Macdonald did not provide sufficient information to allow the Halton Police Service to return the applicant’s use of force. The respondents are not taking the position the information provided by Dr. Macdonald was incorrect: they are asserting they required more information before the applicant’s use of force could be returned.

13In my view, the respondents have provided the applicant with their position on Dr. Macdonald’s evidence.

14The hearing will reconvene on November 4, 2014.