McWilliam v. Toronto Police Services Board, 2016 HRTO 1413

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather McWilliam

Applicant

-and-

Toronto Police Services Board and Angelo Costa

Respondents

-and-

Toronto Police Association

Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: November 1, 2016

Citation: 2016 HRTO 1413

Indexed as: McWilliam v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Heather McWilliam, Applicant

Kate Hughes and Nadia Lambek, Counsel

Toronto Police Services Board and Angelo Costa, Respondents

Amandi Esonwanne, Counsel

1The parties have raised ten preliminary issues that remain to be addressed in this case.

2The parties raised some of these issues in advance of the first hearing day and made submissions in a case management call I held with them. The parties raised many other issues at the first hearing day and in the days following the first hearing day.

3The preliminary issues remaining to be addressed are the following:

1. Applicant’s request to amend her Application;
2. Respondents’ request to bifurcate hearing;
3. Applicant’s request regarding Superintendent Taverner;
4. Applicant’s request that Detective Brian James not be permitted to attend the hearing;
5. Respondents’ request that certain allegations be dismissed on the basis that they already have been appropriately dealt with in another proceeding;
6. Respondents’ objection to the applicant’s expert witness;
7. Applicant’s objection to the respondents’ ability to call an expert witness;
8. Applicant’s request to add two new witnesses;
9. Respondents’ request to add witnesses; and
10. Applicant’s production request and request to add hearing documents.

4In this Interim Decision, I address issues (1) to (7) above as they are the most time sensitive. I will address issues (8) to (10) in a separate Interim Decision. I provide only brief reasons in this Interim Decision due to the tight timing of the parties’ requests and their request that I provide them with a quick ruling on the above issues prior to the next hearing date. For issues (5) and (6), I have provided only a bottom-line decision. for these issues, I find it appropriate and necessary to provide more comprehensive reasons to the parties in a separate Interim Decision to follow.

5I directed the parties to identify all preliminary issues in advance of the hearing so that I could address them in the case management call I held with the parties. Notwithstanding this direction, both parties raised preliminary issues at the first hearing day. I recognize that most of these issues could not have been foreseen. However, at least two issues could have been raised well before the first hearing day – that is, the applicant’s production request and the respondents’ request to dismiss certain allegations. Both parties are directed to raise issues at the earliest opportunity in the future. Any requests that are made in an untimely way may be denied due to the Tribunal’s responsibility to conduct proceedings in a fair, just and expeditious manner.

applicant’s request to amend her application

6The applicant requested permission to amend her Application to add further allegations of reprisal in relation to events that allegedly occurred after the Application was filed. The respondents objected to her request on the basis that the applicant’s allegations take the form of speculation and conjecture. They also submitted that these allegations do not relate to the Toronto Police Services Board (“TPSB”) or Sergeant Costa. The respondents argued that the applicant should be required to file a separate application in relation to the additional allegations. They indicated that, if she did so, they would seek to have the allegations dismissed on the basis that they have no reasonable prospect of success.

7I find it appropriate to permit the applicant to amend her Application to add the additional reprisal allegations referred to above. The allegations all occurred after the Application and Reply were filed. In my view, the respondents’ submission that the applicant’s allegations take the form of speculation and conjecture are in essence submissions as to why the particulars she has so far been able to provide are insufficient to make out a violation of the Code by the respondents. In my view, whether or not the applicant will be able to make out her allegations of reprisal is an issue that can only be decided once I hear the evidence adduced by the parties. At this stage, I cannot find that the applicant’s allegations lack a reasonable prospect of success. In my view, it is necessary to hear evidence from the parties before making any determination as to the validity of the applicant’s claims.

8For all these reasons, the applicant’s request to amend her Application is granted. Once I have heard the evidence in relation to these additional allegations, the respondents will have the opportunity to make submissions as to why they believe that the applicant has not made out her additional reprisal allegations on a balance of probabilities and/or why the respondents are not liable if these allegations are made out.

respondents’ request to bifurcate hearing

9During his opening statement, the respondents’ counsel requested that this proceeding be bifurcated as between the issues of liability and remedy. He submitted that bifurcation was appropriate since the applicant still has yet to identify precisely what she is asking for as public interest remedies in this case. The respondents’ counsel indicated that he may need to call further witnesses to addresses the remedies sought by the applicant and the additional documents the applicant is seeking to rely upon in this case. The applicant’s counsel objected to bifurcation.

10The Tribunal has the responsibility to conduct proceedings in a fair, just and expeditious manner. In my view, bifurcating this proceeding would not be fair, just or expeditious. Bifurcating this proceeding would likely lengthen the proceeding as certain witnesses would likely testify to both the issue of liability and remedy. It would greatly lengthen the proceeding if these witnesses had to be recalled to address the issue of remedy if I make a finding of liability. To the extent that the respondents need to call further witnesses to address the applicant’s public interest remedy requests or additional documents requested by the applicant, the respondents will be provided latitude to do so in order to ensure fairness and a full opportunity to respond to the applicant’s case.

applicant’s request re. Superintendent Taverner

11I made an order excluding witnesses in this case, as much of the case will turn on findings of credibility. The applicant requested that the respondents not be permitted to have Superintendent Taverner as one of their instructing witnesses who is permitted to stay in the hearing room despite my witness exclusion order. The applicant provided various reasons for her request. The main reason is her concern that the Superintendent’s presence in the hearing room will have a chilling effect on witness testimony. The applicant is concerned that police officers testifying in this case may feel intimidated if required to testify with the Superintendent in the room. In addition, the applicant produced a note from her physician indicating that the presence of the Superintendent in the room throughout the proceeding might trigger her mental health conditions. Finally, the applicant argued that it is not necessary for Superintendent Taverner to be present as an instructing witness during the hearing since the respondents have other instructing witnesses present from the TPSB’s labour relations department.

12The applicant submitted that the law recognizes the importance of excluding individuals chosen by a party to be the instructing clients where those individuals may intimidate witnesses or cause harm to a party. The only authority she cited for that proposition is a British Columbia Court of Appeal decision in a judicial review of Workers Compensation Board decision. In fact, the applicant’s counsel relies upon a passage from the reasons of just one judge on a three-person panel who found that it was not a breach of natural justice for the adjudicator to exclude a respondent’s instructing client from the hearing room during the testimony of some witnesses. The other two judges reached the same conclusion but for different reasons – that is, that the respondent had not objected to the adjudicator’s order when it was made.

13The Tribunal has generally found that a respondent’s counsel is free to select his or her own advisor to attend the hearing even if that person will also be appearing as a witness. See Capocci v. York Catholic district School Board, 2009 HRTO 1956, and Vanstone v. Mid-Huron Landfill Site Board, 2012 HRTO 694. I am acutely aware that the applicant has alleged that there is general fear amongst police officers about raising concerns in relation to the Toronto Police Service and its members, especially publically. However, in my view, the respondents’ counsel is entitled to have available to him in the hearing room someone who has knowledge of the facts of this case to provide instructions during the course of the hearing.

14Therefore, I will permit the respondents’ counsel to have one instructing client sitting at the counsel table with him to provide instructions in the case. However, he must not have more than one. I will permit him to choose Superintendent Taverner as an instructing client on the following conditions: (1) that he is the only instructing client sitting with him at the counsel table; (2) that he attend each and every hearing day; (3) that he is actually performing instructing functions; (4) that he specifically undertake not to communicate any information about the testimony he has heard to witnesses before they testify; and (5) that he specifically undertakes not to conduct himself in such a way as to affect the ability or willingness of witnesses to provide truthful testimony in this case.

15In addition, the respondents should be aware that I take seriously the allegations made by the applicant regarding the effect of the Superintendent’s presence in the hearing room on the Tribunal’s truth seeking function. Therefore, the respondents should take note that, in assessing credibility in this case, I will have to take into account whether the Superintendent’s presence in the hearing room may have affected the testimony of any of his subordinates. I will fully consider any submissions made by the parties on this issue in making my credibility findings in this case.

16I am sensitive to the accommodation request made by the applicant in relation to the presence of Superintendent Taverner in the hearing room. However, I am not prepared to exclude him on the basis that there is a possibility that his presence may trigger the applicant’s mental health conditions. At the present time, I am not persuaded that it is necessary to exclude Superintendent Taverner from the hearing room as an accommodation for the applicant’s disability. As well, there are certain essential requirements of a hearing before this Tribunal. One of them is being present in the hearing room with the opposing party throughout the hearing of a case.

17For the above reasons, the respondents are entitled to one instructing client and that instructing client may be Superintendent Taverner on the conditions listed in para. 14 above.

18Normally, I would order a respondent’s counsel to call an instructing client who is intended to be witness as his first witness. However, I am cognizant that the applicant’s counsel has not called the applicant as her first witness. The same rules need to apply to both parties. Either both parties agree to call their instructing clients as their first witnesses or else neither party will be required to do so.

Applicant’s Request to Exclude Detective James

19The applicant requested that Detective James not be permitted to attend the hearing on the basis that his presence may have an intimidating effect on witnesses, as they will perceive him as a pipeline to their supervisors. She also raised the same health-related accommodation concerns she raised in relation to Superintendent Taverner.

20Tribunal proceedings are public proceedings. See Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and Rule 3.10 of the Tribunal’s Rules of Procedure. The applicant has not persuaded me that it is appropriate to exclude Detective James from this public hearing. For the purposes of this proceeding, Detective James is a member of the public. I recognize that he is connected to some of the witnesses in this case through his employment. I will make absolutely clear to Detective James and any other officer attending the hearing that it is crucial that they not communicate any information regarding the evidence that has been given during the hearing to witnesses before they have testified. If there is any evidence that Detective James, Superintendent Taverner or any other employee of the TPSB in any way communicated information about the testimony heard in the case to upcoming witnesses, those individuals will be immediately excluded from the hearing room for the rest of the case. I will also take any such breach of the witness exclusion order into account in making my credibility findings in this case.

Respondents’ request to dismiss certain allegations

21The respondents submitted that the Tribunal should dismiss two allegations against Staff Sergeant (“SSGT”) Christopher Nolan on the basis that they have already been appropriately dealt with through the Police Services Act (“PSA”) proceeding that occurred in this case. Due to the fact that the respondents did not raise this issue until the first hearing day, and the issue requires comprehensive reasons, I will only provide a bottom line decision on this issue.

22I deny the respondents’ request on the basis that Staff Sergeant Nolan is not a personal respondent in this case and the applicant was not a party in the PSA proceeding. The issue I will have to determine in this case in relation to the allegations against SSGT Nolan is whether the applicant is able to establish that he engaged in various incidents of harassment against her. If she does make out her harassment allegations, I will have to consider whether this harassment, when considered in the context of my other findings and the evidence as a whole, meets the test for a poisoned work environment such that the TPSB is liable for a breach of the Code. These issues were not dealt with as part of the PSA proceeding. Therefore I do not agree that any of the allegations against SSGT Nolan should be dismissed on the basis that they have already been appropriately dealt with in the PSA proceeding.

Respondents’ objection to the applicant’s expert witness

23My bottom line decision on this issue is that the respondents’ objection to the applicant’s expert witness, Professor Corsiano, is denied. This issue requires comprehensive reasons which I will provide in a separate Interim Decision. In my view, the objections raised by the respondent should be considered in determining the weight to be accorded to the expert evidence.

24In the Interim Decision in which I provide comprehensive reasons on this issue, I will address what I see as the potential relevance and necessity of the expert’s testimony. I will also address the respondents’ concerns about her proposed testimony as to the “culture” within the TPSB. As I will set out in more detail in a separate Interim Decision, I do not see this case as relating to the “culture” of the TPSB. As noted above, this case is about whether the respondents violated the applicant’s own personal rights under the Code. That said, in light of the applicant’s allegation of a poisoned work environment, evidence about the context of that work environment is relevant. As well, the expert’s evidence may be relevant and useful to me in making inferences from the evidence. However, her evidence cannot, and will not, act as a substitute for my responsibility to carry out my adjudicative functions by weighing evidence in this case, making credibility findings and findings of fact, etc.

25The respondents have requested production of a copy of Professor Corsiano’s doctoral dissertation and any other study she has conducted on the Toronto Police. I agree that these documents are arguably relevant and must be produced to the respondents. One of the reasons that the applicant put forward Dr. Corsiano as an expert was due to the fact that she had studied the Toronto police as part of completing her Ph.D. As such, I find that Professor Corsiano’s doctoral dissertation and any other study she has conducted on the Toronto Police are arguably relevant and must be produced.

Applicant’s objection to the respondents’ ability to call an expert witness

26The respondents have indicated that they may seek to call an expert witness if I denied their objection to the applicant’s expert witness. The applicant submitted that the respondents should not be permitted to call an expert witness because they did not comply with Rule 17.3 of the Tribunal’s Rules of Procedure (“Rules”). That rule requires parties who intend to call an expert witness to file a copy of the expert witness’ written report, or full summary of their proposed evidence, and their curriculum vitae no later than 45 days prior to the first scheduled day of hearing.

27In the circumstances of this case, I find it appropriate to extend the time limit for the respondents’ filing of the materials referred to in Rule 17.3. The respondents will be permitted to call an expert witness on the following conditions:

a. they must advise the Tribunal and the other parties by Friday November 18, 2016, whether they intend to call an expert witness;

b. if so, they must deliver the materials listed in Rule 17.3 to the Tribunal and the other parties no later than Friday, December 23, 2016.

Applicant’s request to add witnesses

28My initial inclination is not to permit the applicant to call the two newly proposed witnesses for whom she provided witness statements on October 28, 2016. However, I will ask the parties to make further submissions on the issue at the next hearing day on Thursday, November 3, 2016.

29My main concern about these proposed witnesses is that the prejudice caused by their testimony may outweigh its probative value to the issues I must decide in this case.

30The applicant filed an Application under s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents discriminated and reprised against her contrary to the Code. Specifically, she alleged that she was subject to a poisoned work environment, sexual harassment and sexual solicitation or advances. She also alleged that the organizational respondent did not adequately investigate her complaints and subjected her to reprisals for enforcing her rights under the Code. Those are the issues I must decide in this case.

31Although the applicant argues that this is a case of “systemic discrimination”, it is not clear what she means by this term. The Tribunal has had occasion to comment on the different meanings parties attribute to the term “systemic discrimination” as well as the Tribunal’s jurisdiction over such claims. See Carasco v. University of Windsor, 2012 HRTO 195. I fully agree with the Vice-chair’s approach in Carasco.

32The applicant in this case may seek to rely upon systemic evidence relating to policies and practices of the TPSB and request “systemic” or public interest remedies. That, however, is different from a claim of “systemic discrimination”. At the end of the day, the issue before me is whether the applicant’s own individual rights under the Code were violated by the respondents.

33The applicant appears to be putting forward the two new proposed witnesses as witnesses who would provide “similar fact evidence”. For the Tribunal’s approach to similar fact evidence, see Washington v. Toronto Police Services Board, 2009 HRTO 217 at para. 18ff. My concern with the applicant’s proposed witnesses is that any testimony from these witnesses would require me to hear evidence and make findings into their harassment allegations which (it appears) all relate to police officers who are not involved in this case regarding incidents that occurred several years ago. This would not only greatly lengthen this hearing but could potentially derail it altogether, as the respondents would have to be provided with the opportunity to call their own witnesses in relation to all of the incidents alleged by the newly proposed witnesses.

34As stated above, it is my preliminary inclination to deny the applicant’s request to call these witnesses. However, I will provide the parties the opportunity to supplement their written submissions on this issue with any oral submissions they wish to make at the next hearing day (Thursday, November 3, 2016). I will likely address the issue in writing in a separate Interim Decision.

Respondents’ request to add witnesses

35As this request is not time sensitive, I will address it in a subsequent Interim Decision.

Applicant’s Production request and request to add hearing documents

36On the first hearing day, the applicant requested permission to add documents to her hearing documents and requested production of certain documents from the respondent. The respondent agreed to the addition of certain documents to the hearing documents for the case but objected to the applicant’s request for other documents. I directed the parties to file written submissions on this issue.

37The applicant has not adequately explained why she did not make her requests before the first hearing day. To the extent that the applicant’s counsel has addressed the timing of her request it appears to be because the requested documents are referred to in documents produced by the respondents. This is not a justification for the lateness of her request. The applicant has had the respondents’ hearing documents since early September. I am at a loss to understand why she did not make her production request before the first day of the hearing.

38That said, some of the documents requested by the applicant do appear to be arguably relevant to the issues raised in this case and no prejudice would be caused to the respondents by the applicant’s delay since they will not be calling their witnesses until sometime in 2017. Due to the lateness of the applicant’s request, I will determine the request in a subsequent Interim Decision once I have had the opportunity to consider the relevance, if any, of the documents to the issues I must decide in this case and the reasons provided by the respondents for objecting to the production of each of the different sets of documents.

order

39For the above reasons, the Tribunal orders as follows:

a. The applicant’s request to amend her Application is granted. The Application is replaced by the Amended Application attached to the applicant’s October 17, 2016 Request for Order During Proceedings.

b. The respondents’ request to bifurcate the hearing is denied.

c. The applicant’s objection to Superintendent Taverner’s ability to remain in the hearing room as an instructing client is denied. The respondent’s counsel is permitted to have one instructing client with him at the counsel table. He may choose Superintendent Taverner as his instructing client on the conditions set out in para. 14 above.

d. The applicant’s request to exclude Detective Brian James from the hearing is denied.

e. The respondents’ request to dismiss two allegations against SSGT Nolan is denied.

f. The respondents’ objection to the applicant’s expert witness is denied.

g. The applicant’s objection to the respondents’ ability to call an expert witness is denied. The respondents must advise the Tribunal and the other parties by Friday, November 18, 2016, whether they intend to call an expert witness. If so, they must deliver the materials listed in Rule 17.3 to the Tribunal and the other parties no later than Friday, December 23, 2016.