Joël-Pierre Jean v. Ottawa Police Services Board and Tim J. Karwaski, 2014 HRTO 515

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joël-Pierre Jean Applicant

-and-

Ottawa Police Services Board and Tim J. Karwaski Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: April 11, 2014 Citation: 2014 HRTO 515 Indexed as: Jean v. Ottawa Police Services Board

APPEARANCES

Joël-Pierre Jean, Applicant Self-represented

Ottawa Police Services Board and Tim J. Karwaski, Respondents David Patacairk, Counsel

1This is an Application filed 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 because of race, colour, ethnic origin and age. The applicant, who identifies himself as black, Canadian-born with Haitian ethnic origins, alleges that the individual respondent, a police officer employed by the organizational respondent, discriminated against him when he pulled the applicant over and ticketed him for allegedly spurious reasons.

2This Interim Decision addresses the applicant’s Request for an Order During Proceedings in which he seeks to add the following three respondents to the Application: the Ottawa Police Service (“OPS”); Vernon White, in his capacity of Chief of Police of the OPS; and Gilles Larochelle, in his capacity as Deputy Chief in charge of Operations for the OPS. The applicant submitted that the current respondents may not be in a position to fully answer the scope of the Application, which may prevent the Tribunal from making appropriate remedies if the Application is successful. The applicant submitted that the Application refers to stereotypes associated with young black men in the downtown core, in particular that they are drug dealers and/or associated with street gangs. The applicant submits that the issues of drug dealing and street gangs require operational direction and guidance within the police force and the applicant submitted that the proposed individual respondents were responsible for design and implementation of operational strategies at all material times.

3The respondents filed a Response to a Request for an Order in which they opposed adding the proposed respondents to the Application. The respondents submitted that the “Ottawa Police Service” is not a legal entity and does not exist as a corporate construct. The respondents submitted that the appropriate organizational respondent is the Ottawa Police Services Board. The respondents submitted that neither proposed individual respondent remains with the organizational respondent, as Mr. White is now a Canadian Senator and Mr. Larochelle is a police chief in another municipality. Accordingly, the respondents submitted that adding these proposed respondents will not facilitate any remedy the Tribunal may award because neither is in a position to affect the operations of the organizational respondent. The respondents also submitted that the applicant did not serve the proposed respondents with the request to add them to the Application. The respondents submitted that the proposed respondents were entitled to notice of the request to add them to the proceeding and stated that counsel for the respondents does not represent the proposed respondents.

4The 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?

5The 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.

6I agree with the respondents that the proposed individual respondents were entitled to notice of the applicant’s request to add them to the Application, but it is not necessary to notify them and seek their submissions as I have denied the request for the reasons that follow. First, I see no reason not to accept the respondents’ submission that the OPS does not exist as a legal entity and that the correct organizational respondent is the organizational respondent. Second, the Application contains no allegations that could support a finding that either of the proposed individual respondents violated the applicant’s Code rights. In fact, the applicant does not refer to either of them in the Application. The applicant submitted that the proposed individual respondents were responsible for operational policies or practices that led the individual respondent to stop him for no reason. In my view, the applicant’s submission in this regard is speculative, but, in any event, the fact that the proposed respondents were responsible for operational/managerial decisions by virtue of their senior positions is not a sufficient basis for adding them as individual respondents. In these circumstances, there is no indication that the proposed individual respondents’ actions are central to the case or that a remedy against either of them personally will be necessary. The applicant’s submissions also provided no basis for concluding that the organizational respondent would be unable to implement any remedies that the Tribunal might award.

7The applicant’s request is denied.