Heather McWilliam v. Toronto Police Services Board and Angelo Costa, 2015 HRTO 1082

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather McWilliam

Applicant

-and-

Toronto Police Services Board and Angelo Costa

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: August 14, 2015 Citation: 2015 HRTO 1082 Indexed as: McWilliam v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Heather McWilliam, Applicant Kate Hughes, Counsel

Toronto Police Services Board, Respondent Heather Crisp, Counsel

Angelo Costa, Respondent Kevin McGivney and Naomi Calla, Counsel

1This Interim Decision addresses the individual respondent’s request that the Tribunal continue the deferral of the Application pending the completion of a related investigation by the Special Investigations Unit (“SIU”). It also addresses the Toronto Police Services Board’s request that the Tribunal grant it an extension of time to file its Response to 21 days from the conclusion of an investigation by the Toronto Police Service Professional Standards Unit (“PRS”).

2By Application filed on September 3, 2014, the applicant alleged that the respondents discriminated against her because of sex and disability contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). She also alleged that she was subject to sexual solicitations or advances as well as reprisals contrary to the Code. The Application contains allegations that span several years. The Application also contains many allegations against a number of police sergeants, including the individual respondent.

Individual Respondent’s Request for Reconsideration

3On consent of the parties, the Tribunal deferred consideration of the Application pending the resolution of an investigation by the SIU into a sexual assault allegation contained in the applicant’s Application to the Tribunal.

4By way of Interim Decision, 2015 HRTO 594, the Tribunal re-activated the Application on the understanding that the SIU had completed its investigation. Following the issuance of the Tribunal’s Interim Decision, the individual respondent filed a Request for Reconsideration requesting that the Tribunal continue the deferral of the Application on the basis that the SIU investigation was not in fact complete.

5Due to the disagreement between the parties as to whether the SIU’s investigation was complete, I issued a Case Assessment Direction (“CAD”) directing all three parties to jointly contact the SIU to request an update on the status of the investigation.

6By letter dated August 6, 2015, counsel for the organizational respondent advised that the SIU investigation is complete. She attached to her letter, a letter from the Director of the SIU confirming that the SIU has closed its file and will take no further action in the matter. The Director states that the SIU has determined that there are no reasonable grounds to believe that the individual respondent committed a criminal offence in connection with the applicant’s sexual assault allegation.

7Since the SIU’s investigation is now complete, I see no reason to reconsider the Tribunal’s Interim Decision re-activating the Application.

Organizational Respondent’s Request for Extension to File Response

8In its August 6, 2015 letter, the organizational respondent requested an extension of time to file its Response to 21 days after the date of the completion of the report that the PRS will prepare following its internal investigation in this matter. The organizational respondent is seeking to raise the same submissions it made in its response to the applicant’s Request to re-activate her Application. These submissions were considered by the Vice-chair who issued Interim Decision 2015 HRTO 594. She determined that the respondents would be given 35 days from the date of her Interim Decision to file their Responses. I see no reason to alter this determination, except that I find it appropriate for the 35 days to run from the date of this Interim Decision due to the uncertainty as to how the Tribunal would rule with respect to the individual respondent’s Request for Reconsideration.

9The organizational respondent is in essence seeking the continued deferral of the Application pending the conclusion of its own internal investigation. The Tribunal defers consideration of applications for a precise reason -- to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404. There is no concurrent proceeding in this case and therefore a continued deferral is not appropriate.

10As well, as noted by the applicant, the organizational respondent has had a copy of the Application since September 2014. By letter dated September 24, 2014, the organizational respondent requested an extension of the deadline to file its Response to November 28, 2014 in order to give it time to investigate the applicant’s allegations. In my view, the organizational respondent has had ample time to conduct its investigation of the applicant’s allegations. If it finds in the future that it needs to amend its Response because new information comes to light, it may file a Request for Order During Proceedings seeking permission to do so.

ORDER

11For the above reasons, the Tribunal orders as follows:

a. The individual respondent’s Request for Reconsideration is denied, or has become moot, due to the fact that the SIU investigation is now complete.

b. The respondents shall file their Responses to the Application no later than 35 days from the date of this Interim Decision.