McFarlane v. Regional Municipality of Peel Police Services Board, 2014 HRTO 215

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Akisha McFarlane

Applicant

-and-

The Regional Municipality of Peel Police Services Board and OPGI Management Limited Partnership

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: February 14, 2014 Citation: 2014 HRTO 215 Indexed as: McFarlane v. Regional Municipality of Peel Police Services Board

WRITTEN SUBMISSIONS

Akisha McFarlane, Applicant

Self-represented

1This is an Application filed on May 1, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to services, goods and facilities because of race, colour and reprisal.

2The Application concerns an incident that occurred on May 25, 2011 at a branch of the Bank of Montreal at the Square One Shopping Centre in Mississauga, Ontario, which shopping centre is operated by the respondent OPGI Management Limited Partnership. Officers of the Peel Police Services attended at the branch to address the incident. The applicant also filed a complaint to the Canadian Human Rights Commission ("CHRC") against the Bank of Montreal. The applicant requested that the Tribunal defer this Application until the completion of the proceeding before the CHRC. In a Case Assessment Direction dated July 3, 2013, the Tribunal declined to defer the Application because the applicant had provided no information about her complaint to the CHRC.

3On July 12, 2013, the applicant filed a Request for an Order During Proceedings (the "Request") seeking production from the Bank of Montreal, seeking to add Garda Securities ("Garda") as a respondent to the Application, and seeking production of documents regarding Garda's investigation of the incident. In a Case Assessment Direction dated August 28, 2013, the Tribunal indicated that it could not consider the applicant's request until the applicant provided clarification regarding the CHRC proceeding. In that Case Assessment Direction the Tribunal directed, amongst other things, the parties to file written submissions about whether the Application should be deferred, and the Bank of Montreal and Garda to file written submissions responding to the applicant's Request as it relates to them.

4The applicant did not provide her submissions as directed by the Tribunal. Accordingly, the Tribunal issued another Case Assessment Direction, dated November 27, 2013, in which it informed the applicant that the Tribunal would not address her Request until she provided written submissions clarifying the status of the CHRC proceeding and addressing whether the Application should be deferred. The Tribunal also noted that the Bank of Montreal had responded to the applicant's Request and appeared agreeable to meet the applicant's production request, subject to certain terms and conditions.

5On December 13, 2013, the applicant sent an e-mail message to the Tribunal in which she provided an update regarding the CHRC proceeding and stated that she was not pursuing deferral of this Application. Consequently, the Application shall be scheduled for hearing.

6At this point, the only outstanding issue is the applicant's Request to add Garda as a respondent to the Application and to have Garda produce certain documents. Garda has not responded the Request and the time for doing so has passed. For the following reasons the Request is denied.

7The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, supra, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

8In the present case, the Application indicates that security guards employed by Garda arrived at the bank first and began to investigate. The applicant alleges that she began to provide her account of the incident when one of the guards cut her off and asked her if she "put her hands" on the bank manager. The applicant states that when she confirmed that she had, the guard in question ended the interview and advised a police officer, who arrived later, that the applicant admitted to assault. In the Request, the applicant submitted that further investigation would have revealed that she had been the victim of discrimination and assault. The applicant also submitted that another guard yelled at her and threatened her and exacerbated the confrontation after she said a swear word. The applicant also alleged that two of the guards participated in making accusations against her while the police conducted a one-sided investigation.

9The applicant asserts that the security guards did not give her a chance to provide her explanation for the incident and behaved in a confrontational manner towards her. Assuming these allegations to be true, the guards' behaviour may have been unfair, unprofessional and rude. The applicant did not provide any basis, however, for concluding that this behaviour was linked to her race or colour. On the applicant's account, Garda's employees played a small part in the incident in question and there is no indication that their actions, however unpleasant, had negative consequences for her. There is no dispute that the police assumed control of the investigation after they arrived and that the police decided not to pursue criminal charges against the applicant. Accordingly, nothing the Garda employees did or did not do had any impact on the outcome of the incident. In my view these allegations could not support a finding that Garda's employees breached the Code. I also do not think that it would be fair, in the circumstances of this Application, to add Garda. First, the incident in question occurred almost three years ago and in my view it would not be fair to require Garda to respond to these allegations now. In that regard, I am guided by the fact that section 34 of the Code requires an applicant to file an application within one year of the incident she alleges was a violation of her human rights. Where an application is filed outside of the one-year time period, the Tribunal may deal with the application if the applicant provides a good faith explanation for the delay. Here, the applicant provided no explanation for the delay in asserting Garda violated her rights, although the facts regarding Garda's involvement in the incident have been apparent from the date of the incident. Second, this proceeding has already been quite lengthy and adding Garda would necessarily delay the matter further.

10The Request to add Garda is dismissed and, as Garda is not a respondent to this Application, documents regarding its investigation of the incident do not appear to be arguably relevant.

11The Tribunal orders as follows:

1. The Application shall be returned to the Registrar for scheduling; and,

2. The Request to add Garda as a respondent to the Application and to order production of documents from Garda is denied.

12I am not seized.