HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Curtis Rutt
Applicant
-and-
Orangeville Police Service, Mike Robinson, Daniel Maloney and Joseph Tomei
Respondents
-and-
Orangeville Police Association
Intervenor
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Rutt v. Orangeville Police Service
APPEARANCES
Curtis Rutt, Applicant
Self-represented
Orangeville Police Service, Mike Robinson, Daniel Maloney, and Joseph Tomei, Respondents
Maria Kotsopoulos, Counsel
Orangeville Police Association, Intervenor
Katherine Rowen, Counsel
1This Interim Decision provides direction regarding the future processing of this Application following a telephone conference call case management hearing held on November 13, 2014. At that time, there was some indication from the parties that there might be some progress made on settlement discussions, but the Tribunal has not received any further communication about this from the parties.
BACKGROUND
2This Application arose in the context of significant conflict between the parties. The Application was filed in January 2011. In December 2010, one month earlier, the applicant released a lengthy document that set out a variety of allegations about the operation of the corporate respondent and the personal respondents. The applicant’s document was widely disseminated. In the document, the applicant asked that an investigation be conducted under section 25 of the Police Services Act, R.S.O. 1990, c. P.15 (“the PSA”) which provides in part:
- (1) The Commission may, on its own motion or at the request of the Solicitor General, the Independent Police Review Director, a municipal council or a board, investigate, inquire into and report on,
(a) the conduct or the performance of duties of a police officer, a municipal chief of police, an auxiliary member of a police force, a special constable, a municipal law enforcement officer or a member of a board;
(a.1) the performance of duties of an appointing official under the Interprovincial Policing Act, 2009;
(b) the administration of a municipal police force;
(c) the manner in which police services are provided for a municipality;
(d) the police needs of a municipality
3The applicant’s December 2010 document is referred to as “the applicant’s Section 25 document”.
4The corporate respondent asked the Toronto Police Service to conduct an investigation. The Toronto Police Service investigated and prepared a report that was critical of the applicant. The corporate respondent then instigated charges against the applicant under the PSA. Under the PSA, an investigating officer and a prosecutor are appointed. The applicant was represented in the proceedings by counsel.
5Four counts were entered against the applicant in the PSA proceeding relating to his conduct. Two of the counts included allegations of deceit and discreditable conduct. The prosecutor entered the applicant's Human Rights Application as evidence in respect of these two counts, along with the applicant's section 25 document.
6After the prosecutor had completed his case against the applicant, the applicant resigned his employment with the corporate respondent. As a result, the applicant was no longer a police officer who was subject to the operation of the PSA. The proceedings concluded on that basis.
7The Application to this Tribunal was deferred pending the conclusion of the PSA proceeding. The applicant asked that the Application be re-activated and this request was granted.
8Prior to the deferral, the applicant had filed a Request for Order During Proceedings, seeking to amend the Application to include an allegation of reprisal. This was based on the fact that the Application had been entered into evidence in the PSA proceeding.
9The respondent and the Police Association, which is an intervenor in the Application, had raised additional issues and these were dealt with at the telephone conference call hearing.
December 16, 2010 letter from counsel to the union
10As discussed at the telephone conference call hearing, a letter written by Mr. Barry Chercover to the Orangeville Police Association was written in Mr. Chercover’s capacity as counsel and the letter is subject to solicitor-client privilege. As such it is not admissible in this Application.
Request to remove the personal respondents
11The corporate respondent has asked that the personal respondents be removed as respondents to the Application. The applicant opposes that request. The factors typically considered by the Tribunal are as follows:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who is sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
12In this case and at this time, I conclude that it is not appropriate to remove the personal respondents as respondents. The conduct of the personal respondents appears to be a central issue and I find that more information and evidence is required before the potential liability of any of the personal respondents could be determined. This issue may be re-visited at a later stage in the processing of this Application.
Request to amend the Application to include reprisal
13The applicant wishes to amend the Application to include an allegation of reprisal. In particular, the applicant alleges that the Corporate Respondent filed a copy of the Application in proceedings against him under the Police Services Act and that this was done in reprisal for having filed the Application.
14As noted in submissions from the respondent, the actions of a crown prosecutor are protected by the doctrine of prosecutor immunity see: Inward v. Toronto (City), 2010 HRTO 2127. It is not clear if this doctrine extends to prosecutions under the PSA. Even for crown prosecutors, the immunity is not absolute (see Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 SCR 170, 1989) and the extent of immunity may depend on the facts of the case.
15The respondents referred to section 83(8) of the PSA:
83(6) No document prepared as the result of a complaint made under this Part is admissible in a civil proceeding, except at a hearing held under this Part.
16The document in question is the Human Rights Application, which was not prepared as the result of a complaint under the PSA. It therefore appears that this section is not relevant to the issue of whether the fact that the Application was filed in respect of that proceeding could be a reprisal under section 8 of the Code.
17I therefore conclude that I require further evidence and submissions about the proceedings under the PSA in order to determine whether the fact that Human Rights Application was filed in that proceeding could constitute reprisal contrary to section 8 of the Code. For this reason, the applicant’s request to amend the Application to include reprisal is granted.
Should Notice be given to the Toronto Police Service?
18The respondents have proposed that the Toronto Police Service (TPS) should be given notice of the Application at this Tribunal. This is based on the fact that the TPS was retained to conduct an investigation which played an important part in the subsequent developments. The respondents have not asked that the TPS be made a respondent to the Application and neither has the applicant.
19At this stage of the proceeding, I am satisfied that there is no need to give the TPS notice of the hearing.
NEXT STEPS
20The Registrar will schedule a one day, in person hearing. At the hearing, I will be available to assist the parties with settlement discussions pursuant to the Tribunal’s Mediation/Adjudication model. If the parties do not wish to engage in settlement discussions, or if no settlement is reached, the hearing will be used to establish a schedule for subsequent hearing days and to deal with any case management issues that may need to be dealt with.
21The Notice of the Hearing will specify the dates by which the parties will be expected to file the documents and witness statements to be relied on at the hearing.
Dated at Toronto, this 26th day of February, 2015.
“Signed by”
Brian Cook
Vice-chair