HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Baljiwan Sandhu
Applicant
-and-
Peel Regional Police Services Board
Respondent
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Sandhu v. Peel Regional Police Services Board
APPEARANCES
Baljiwan Sandhu, Applicant
Kelley Bryan, Counsel
Peel Regional Police Services Board, Respondent
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, ancestry, place of origin, colour, ethnic origin as well as reprisal. This Interim Decision addresses a request by the applicant for particulars and production of documents.
Background
2The applicant is a member of the respondent police service holding the rank of detective sergeant and identifies as being of South Asian origin. The applicant alleges that he was subjected to discrimination in the promotion process for vacancies in the rank of inspector in 2013.
3The promotion process involves four steps: eligibility, supervisory assessment, paper review of recommended candidates, and interviews of recommended candidates. The applicant was considered eligible and was assessed by his supervisory officers for promotion. However, the applicant was not recommended for promotion by his supervisory officers, and as a result, did not proceed to the paper review and interview steps of the process.
4In the assessment, the supervisory officers made a number of positive comments about the applicant. In addition, however, in commenting on the applicant's experience, the supervisory officers stated that the applicant had not worked as a front line uniform supervisor except for his assignments at the airport division. The supervisory officers also referenced the applicant's experience in the Diversity & Ethnic Relations Unit, which included the completion of 872 hours of acting inspector duties. The supervisory officers stated that the applicant had not yet had the opportunity to acquire acting inspector experience in an operational environment and that the applicant "requires the opportunity to experience, acquire and fully demonstrate the core and enabling competencies that are required for advancement to the next rank". The officers concluded that they were not able to recommend the applicant for promotion to the rank of inspector at "this time".
5The applicant alleges that the refusal to recognize his experience acting as an inspector in diversity relations was discriminatory and that, to the extent diversity or community policing experience is discounted, the promotional criteria are themselves discriminatory.
6After his rejection, the applicant filed a grievance with his Association alleging, among other things, that he was discriminated against during the promotional process. The applicant alleges he was subjected to reprisal for filing the grievance by receiving a negative evaluation, by being denied acting time at the inspector rank, and by having his transfers to 21 Division blocked.
7The Response denies the allegations. The respondent submits that the applicant's failure to be promoted to inspector was not in any way due to discrimination and adverse treatment. The respondent submits that the promotional process is competitive and the applicant has not claimed that another police officer was improperly promoted to inspector over, or instead of, him. In the course of the Response, the respondent responds to some of the applicant's allegations with reference to statistics, including comparative information comparing the applicant's experience with those of other officers.
8On May 25, 2015, the applicant filed a Request for Order During Proceedings seeking production of 16 categories of documents and particulars of 13 categories of questions, most of which the applicant submits are arguably relevant to the respondent's position as set out in the Response. The respondent opposes the Request, disputing that any of the documents or particulars requested should be ordered to be produced or answered at this time. At the parties' request, the Request was dealt with as a preliminary issue at a hearing scheduled for June 8 and 9, 2015.
9At the hearing, I heard submissions from the parties on the Request and the issue of whether or not it was appropriate to bifurcate the hearing between issues of liability and remedy.
Bifurcation
10The applicant submitted that it made sense to bifurcate. The respondent submitted that as a result of its position on liability, it agreed that the hearing should be bifurcated between the issues of liability and remedy.
11According, on consent of the parties, the Tribunal directs that the hearing be bifurcated between liability and remedy stages.
The Production Request
12As referenced above, the applicant's original request for particulars and production was extensive consisting of 13 requests for particulars and 16 categories of documents. However, during the course of hearing submissions, the request was narrowed. As a result of bifurcation, the applicant deferred his requests for production of certain documentary material (items #8, #9, #10 and #11) and particulars (items #9 and #10) on the basis that the requests did not appear to be arguably relevant to the liability stage of the hearing. The applicant also withdrew his request in respect of a number of other items based on the respondent's withdrawal of paragraph 139 in the Response (item #12), the respondent's representation that documents in certain categories identified had been already produced (items #4, #7 and #14), and the respondent's agreement to make inquiries and produce any policy that may exist on racial discrimination (item #16). Finally, the parties agreed to try to resolve between themselves the request for production of documents identified as items #2 and #3 and only seek the Tribunal's assistance if they were unable to do so.
13As a result of the various agreements and withdrawals, the outstanding requests relate to five categories of documents and eleven categories of particulars.
14It is well-established that the threshold for production of documentation and other disclosure in a human rights proceeding is arguable relevance. As noted in Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at paragraph 8, this is a relatively low threshold. However, there must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and the issues in dispute: Lampi v. Princess House Products Canada Inc., 2008 HRTO 1.
15In this case, the applicant argued that the documents were arguably relevant because of the respondent's position in its Response and, in particular, the respondent's defence of its actions in part by reference to statistics or other assertions, which the applicant submits he should be able to test.
16In general terms, the respondent objected to the request on the basis that the items requested do not relate to the alleged discrimination: namely, the managers' decision to not recommend the applicant to the next stage of the promotional process for the inspector vacancies and the alleged reprisals. The respondent submits that the Tribunal may characterize the issues in the case fairly narrowly, and the statistics it has referenced in the Response which the applicant now seeks to challenge (such as the training files and personnel files of other officers hired on the same date as the applicant) may or may not be relevant to the Tribunal's determination of the issues in the case. Notwithstanding this position, the respondent has not withdrawn these claims, although it would appear there is some question as to whether or not the respondent intends to rely on all of the paragraphs in the Response.
17The applicant agrees with the characterization of the issues in the case but submits that evidence about the later stages of the promotional process may become relevant if there is a finding that the applicant was discriminated against in the promotional process by not being recommended. The applicant submits that in the normal course, documents that are arguably relevant to all contingencies are produced at the outset.
18I now turn to consider the specific requests for documents. I use the numbering system from the applicant's Request.
Item # 1: Training files for the 24 officers appointed to the service at the same time as the applicant
19The applicant seeks production of training files for the 24 officers hired on the same day as the applicant in February 1989. The applicant bases his request on paragraph 55 of the Response. In response to the applicant's proposed "contextual" evidence that he was denied training readily available to his "contemporary officers", paragraph 55 compares the applicant's training profile to others hired on the same day as the applicant who remain in the service (which appears to be 11 members). The applicant states that he appreciates that the scope of the request is broad but it is the respondent itself that has expanded the scope through the Response.
20The respondent opposes the request for training files given that there is no reference to training in the assessment document by the applicant's supervisory officers who decided not to recommend him for promotion. Further, as noted above, the respondent submits that the material in the Response may or may not be relevant, although the respondent has not withdrawn the paragraph in question.
21At this early stage of the proceeding, I deny this request for production. The applicant has to put his evidence in first. The applicant wants to lead "contextual" evidence that courses that were readily available to his "contemporary officers", were denied to him, although it is unclear who the applicant means by contemporary officers. While I appreciate that the respondent responded to this proposed evidence with particular statistics, it is not clear to me that the statistical claims in the respondent's Response will need to be heard and determined in the hearing to address the claims of discrimination being made by the applicant. As a result, it is not clear to me at this stage that the documentation sought is arguably relevant to the issues in the case.
22However, the hearing is at an early stage and the respondent has not withdrawn this paragraph. In the event that an evidentiary foundation is laid for the documents by the respondent seeking to rely on this part of its Response and being permitted to do so or otherwise, the applicant may renew his request.
Item #5: Personnel files of officers hired same day as applicant
23The applicant seeks the personnel files (including training and accolades) of all officers hired the same day as the applicant, and identification of the race / ethnicity of each. This request relates to paragraph 89 of the Response. In response to what the respondent characterizes as the applicant's claim of discrimination in career development, the respondent reviews the ranking of those members hired the same day as the applicant and states, among of things, that only one has achieved a higher rank than the applicant.
24The respondent opposes the request in part because the records are being sought for individuals who are not part of the application process for the inspector position.
25At this stage, I deny this request for similar reasons to that outlined in respect of the first item. The request is broad and at this time, I am not satisfied that the respondent's statistics will need to be heard and determined in order to address the issues in the case. As a result, it is not apparent that the documents sought are arguably relevant particularly given the issues which both parties submit are central: the allegations about the promotional process for inspector and the alleged reprisals. Again, if based on the evidence, a foundation is laid for such documents, including the respondent seeking to rely on and being permitted to present evidence on the career details of other officers hired the same day as the applicant, the applicant may renew his request.
Item #6: Personnel files of 21 officers promoted to inspector since December 10, 2008
26The applicant seeks this information because of paragraph 90 of the Response. In response to what the respondent characterizes as the applicant's claims of discrimination in career development and advancements, the respondent seeks to rely on statistical benchmarks for members promoted to the rank of inspector (in particular, that 21 officers have been promoted since the time of the applicant's last promotion to staff sergeant / detective sergeant and citing their average length of service and average time in the rank of staff sergeant / detective sergeant prior to promotion).
27The respondent submits the information is not arguably relevant and states that there are privacy issues associated with disclosing the information.
28Based on the material filed and subject to the Response that is advanced, I am not convinced that the documents sought are arguably relevant to the issues in the case. The applicant is alleging discrimination in respect of a specific promotional process and in particular is making specific allegations about why he was not recommended for promotion in 2013 and what he views as reprisals following the filing of a grievance. Again, at this stage, I am not convinced that the respondent's statistical claims which underlie the applicant's request will need to be heard and determined. However, should the respondent seek to rely on the statistical information contained in the Response and be permitted to do so, the applicant may renew his request for production of this material.
Item #13: Personnel file of Staff Sergeant L.
29The applicant seeks this personnel file as a result of paragraph 158 of the Response. The applicant claims that he was denied acting inspector opportunities following the 2013 process. In response, the respondent states that Staff Sergeant L. was chosen by the superintendent and asserts that he had significantly more experience than the applicant in the areas identified in paragraph 158.
30The respondent submits this should not be produced as this was an ad hoc assignment unconnected to the promotional process.
31I find that the documentation considered by the superintendent relating to his decision to appoint Staff Sergeant L. instead of the applicant is arguably relevant. The applicant alleges he was reprised against in part by being denied acting inspector opportunities and the respondent's response is that after completing a review of the officer's résumés (the applicant's and Staff Sergeant L's resumes), Staff Sergeant L. was chosen because he had significantly more experience in the areas set out in paragraph 158 of the Response. In light of this response, Staff Sergeant L.'s résumé and any other documents considered by the superintendent at the time in reaching his conclusion that Staff Sergeant L. had significantly more experience than the applicant should be produced. The documents should be produced within 14 days of the date of this interim decision.
Item #15: Policies or like documents with arguable relevance to the issue of promotion of racialized officers with the respondent
32The applicant seeks production of any policies or like documents with arguable relevance to the issue of promotion of racialized officers within the Peel Regional Police Service such as, for example, affirmative action policies. The applicant submits that he is claiming that he was discriminated against in promotions on the basis of race, and that the criteria themselves may be discriminatory if policing experience in diversity relations is discounted.
33The respondent opposes the request noting that the applicant has not claimed there is such a policy.
34If such documents exist, they would be arguably relevant. The respondent should make inquiries as to the existence of any policies, procedures and directives regarding the promotion of racialized officers with the PRPS and if any exist, produce the same to the applicant within 14 days of the date of this decision.
Requests for Particulars
35The applicant seeks particulars of a number of items which it states it "might" ask about in cross-examination of the respondent's witnesses and which appear to relate in some manner to the claims being made in the Response. The applicant states it is seeking the information now to promote the expeditious flow of the hearing. The applicant makes this request in respect of 11 items in relation to the liability portion of the hearing.
Item #1: What is the actual length of tenure for officers in the diversity relations unit from 2000-2013?
36The applicant states that this request relates to paragraph 84 of the Response, where the respondent asserts that officers in diversity relations (and many other units) were "expected" to remain in their posting for several years. This assertion is made by the respondent in response to what it characterizes as the applicant's claim that he was denied a transfer or otherwise held back in diversity relations. The respondent opposes the request for particulars, stating that the applicant's claim that he was held back from transfer is out of time. The respondent further submits that, in any event, this request is not relevant as the applicant left diversity relations at the time he put in a request for transfer.
37Based on the material filed and submissions made, I am not satisfied that this information should be produced. As indicated above, both parties have characterized the issues in the case as the allegations about the 2013 promotional process and the alleged reprisals that followed the filing of a grievance. While the applicant does claim that his stay in diversity relations was "prolonged", the particulars made in support of that claim are limited to a question being posed to the applicant of "who is going to replace you" (presumably when he raised the possibility of leaving diversity relations), and being asked to locate his own replacement when he inquired about a potential transfer. The applicant did not dispute the respondent's submission that when he put in a request for transfer out of out of diversity relations, he got a transfer.
38In light of what appears to be the issues in the case, I am not convinced that statistics about how long officers stayed in diversity relations are arguably relevant to the issues the Tribunal would need to determine. The request is denied.
Item #2: What percentage of PRPS officers (per year from 2000 to 2013) stay in their position for the recommended tenure duration, in each division/unit?
39The applicant seeks these particulars because of paragraphs 84 (paraphrased above) and 148 of the Response. In paragraph 148, the respondent states that the applicant was not approved for transfer in May 2013 because he had failed to complete his commitment to the airport as the applicant had only completed 11 months of a posting that has a recommended duration from three to five years. This paragraph appears to be in response to the applicant's claim that after the 2013 promotional process, he was discriminated against by being blocked from transfer out of the airport division by the staff superintendent. The respondent opposes the request on the basis of relevancy and states that it does not know if it can get this information.
40The respondent should make inquiries as to what information is available for the airport division and if it does have the particulars available for the airport division, produce the same within 14 days of the date of this decision. The information sought about the airport division appears to be arguably relevant to the issues in the case and in particular the respondent's rationale for not accommodating the applicant's transfer after the promotional process.
41At this time, I make no order for the related statistics for other units. While the respondent does refer to other units, it is not apparent to me that the Tribunal will need to hear and determine the claims being made about the respondent's practices in respect of other units.
Items #3 and 5: What is the number of "fellow officers" referenced in paragraph 87 of the Response (average length of service for fellow officers receiving a promotion to the rank of sergeant / detective on the same day as the applicant on December 15, 2000) and paragraph 88 of the Response (average times for fellow officers receiving a promotion to the rank of staff sergeant/detective sergeant on the same day as the applicant on December 10, 2008)?
Items #4 and # 6: What is the average length of service of all officers in the PRPS promoted to the rank of sergeant/detective in paragraph 87 of the Response (per year from 1990-2000) and staff sergeant/detective sergeant in paragraph 88 of the Response (per year from 1998 to 2008)?
42The applicant seeks particulars of the underlying statistics identified above because of assertions made by the respondent in paragraphs 87 and 88 of the Response. In paragraph 87, the respondent states that the average length of service for the applicant's "fellow officers" receiving a promotion to sergeant/detective on the same day as the applicant was 15.65 years (in comparison to 11.86 years for the applicant). In paragraph 88, the respondent states that the average times for the applicant's fellow officers receiving a promotion to staff sergeant/detective sergeant was 22.22 years of service and 6.61 years in the rank of sergeant (in comparison to 19.84 and 7.99 years of service for the applicant). In respect of his request in items #4 and #6, the applicant has sought particulars for a ten-year period since the applicant submits that the respondent's statistical assertions can have little meaning unless they can be compared to statistics from other years.
43The respondent opposes each request on the basis of relevancy. The respondent submits that if all this information is relevant, the applicant is putting on a very different case from what was originally pled.
44I deny these requests for particulars. Based on the material submitted and the submissions made, it is not clear that this information would be arguably relevant to the issues in this case, i.e. the decision to not recommend the applicant for promotion to inspector and the alleged reprisals. While I appreciate the respondent has made certain claims in its Response which underlie the applicant's requests, I am not convinced it will be necessary to hear and determine those claims made in the Response in the hearing.
45Again, if circumstances change as this proceeding continues, the applicant may renew his request.
Item #7: How many officers have been promoted from the airport division from 2008 to 2013 to the supervisory positions of staff sergeant or higher? What was the total number of officers in the airport division in each year?
Item #8: How many officers have been promoted from the four mainline divisions from 2008 to 2013 to the supervisory positions of staff sergeant or higher? What was the total number of officers in the airport division in each year?
46The request for particulars sought in items #7 and #8 was narrowed from the original request. In each case, the applicant had originally sought particulars of all promotions, and rationalized his request based on paragraphs 98 to 100 of the Response. In these paragraphs, the respondent provides particulars comparing the number of personnel, the total volume of priority one calls, and the number of prisoners in the airport division and other divisions. When the respondent opposed the request, highlighting the breadth of the request to "all promotions", the applicant narrowed its request to the supervisory positions of staff sergeant or higher.
47The request for particulars is granted in part. At this stage, the respondent is ordered to produce particulars of how many officers have been promoted from the airport division and the four mainline divisions to the inspector rank/position from 2008-2013, along with particulars of the total number of officers in the pool that would be eligible for promotion to inspector (i.e. the rank(s) from which an officer is capable of being promoted to inspector) for each year requested.
48A primary reason the applicant was not endorsed as a candidate related to the nature of his experience (being from the airport division and the diversity relations unit and not a general division). I view the information sought at least with respect to promotions to inspector arguably relevant to the issues in the case.
Item 11: Who were the members of the promotional board reviewing the promotional packages of the 31 candidates who proceeded to the paper assessment stage in the January 2013 promotional process?
Item #12: Who were the members of the promotional board interviewing candidates in the January 2013 inspector promotional process?
49The applicant seeks the above-noted particulars based on paragraphs 126 and 128 of the Response. In these paragraphs, the respondent pleads that the promotional packages were reviewed at the paper assessment stage by a promotional board, and that 14 candidates proceeded to the interview stage of the job competition.
50The respondent opposes the production of these particulars on the basis that these requests are about the stages of the process that the applicant was not part of.
51Based on the material filed and what I understand to be the issues in the case at this stage, while the particulars sought seem innocuous, I do not view the information sought as arguably relevant to the issues the case. Accordingly, the requests are denied.
Item #13: What is the definition of "racialized" as used by the respondent in paragraphs 133 and 134 and related paragraphs? What ethnic / racial groups are included in the definition and what ethnic / racial groups did the successful candidates belong to? (i.e. the reference that women and racialized groups succeeded at a rate greater than their participation rate in the 2013 inspector promotional process)
52The applicant justifies this request based on paragraphs 133 and 134 of the Response in which the respondent pleads that women and racialized persons succeeded at a rate that was greater than their participation rate, and that on this basis alone, the applicant's allegations are without foundation.
53This respondent opposes the request for the same reason as items #11 and #12.
54At this stage, the applicant's request is denied. While I appreciate the request relates to the respondent's assertions in paragraphs 133 and 134, I am not convinced that the respondent's assertions about the racial make-up of who succeeded in the promotional process will need to be heard and determined in the proceeding, and as a result, it is not apparent that the information sought is arguably relevant. There appears to be no dispute that at this stage of the proceeding, the applicant's allegations about the promotional process pertain to the decision of his supervisory officers to not recommend him for promotion and specific allegations as to why the applicant was discriminated against in these circumstances.
55However, it bears repeating that the hearing is at an early stage and in the event that an evidentiary foundation is laid for the documents by the respondent seeking to rely on this claim and being permitted to do so and/or because of any other evidence, the applicant may renew his request.
Other Documents Ordered
56In the course of the parties' submissions, I sought clarification on what had already been produced by the respondent. In particular, I asked whether or not the respondent had produced the supervisory endorsements of the other candidates (there were 33 candidates for promotion, 31 of which proceeded to the paper assessment stage). I also queried whether there were any documents which set out the criteria to be assessed by supervisory officers in considering whether or not to recommend a candidate.
57The respondent stated that it was not sure if there was another document (other than the form for assessment) that addressed what was to be assessed by supervisory personnel but that if producible, the respondent would produce such document or documents. The respondent was opposed to producing the endorsements of the other candidates. The respondent submitted that the other candidates were assessed by different supervisory officers and, given that the applicant does not take issue with anyone else's promotion, the documents are not arguably relevant.
58The applicant sought production of the documents given that the documentation would provide information on how other supervisors applied the criteria in deciding whether to recommend a candidate or not.
59I confirm my oral ruling subject to editing for clarity. The respondent shall produce the endorsements for the other candidates, including those who were and were not recommended. At this stage, the endorsements may be redacted to anonymize the names of candidates. If upon review of the material, the applicant continues to seek documents which are not redacted, he may renew his request for the same.
60With respect to my rationale, I agree with the submissions of the applicant. The other endorsements may provide some information as to the criteria applied by other supervisors in the assessment process which may be relevant to the issue as to whether or not the applicant was assessed in a manner consistent with the Code.
Summary of Orders
60The Tribunal orders that within 14 days of the date of this decision, the Respondent shall produce the following to the Applicant:
Staff Sergeant L.'s résumé and any other documents considered by the superintendent at the time in reaching his conclusion that Staff Sergeant L. had significantly more experience than the applicant;
Any respondent policies, procedures or directives regarding the promotion of racialized officers;
Particulars of the percentage of PRPS officers in the airport division (per year from 2000 to 2013) who stay in their position for the recommended tenure duration;
Particulars of how many officers have been promoted to the inspector rank/position from the airport division and the four mainline divisions in each of the years in the period 2008 to 2013, along with particulars of the total number of officers in the pool who would be eligible for promotion to inspector from each of the divisions (i.e. from the rank(s) from which an officer is capable of being promoted to inspector) for each of the years 2008 to 2013 inclusive;
The endorsements of the other candidates in the 2013 promotional process including those who were and were not recommended for promotion, subject to redactions to anonymize the names of candidates.
61I am not seized.
Dated at Toronto this 16th day of October, 2015.
"Signed by"
Kathleen Martin
Vice-chair