HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Vincent Steeves
Applicant
-and-
Stratford Police Service
Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Steeves v. Stratford Police Service
WRITTEN SUBMISSIONS
Vincent Steeves, Applicant
Alexandra Papaiconomou, Counsel
Stratford Police Service, Respondent
Frank Angeletti, Counsel
Introduction
1This decision addresses both the general relevancy of certain evidence, and the admissibility of certain evidence in the face of disciplinary proceedings brought by the respondent against the applicant pursuant to the Police Services Act, R.S.O. 1990, c. P.15 ("PSA").
background
2The applicant was employed as a police officer by the respondent from June 1, 2004 until his resignation on September 13, 2013.
3The applicant alleges he was injured in an assault on the job in January, 2012 and was forced back to work prematurely, which led to an aggravation of the injury in a second on the job incident on June 23, 2012. He also alleges he suffered post-traumatic stress disorder ("PTSD") as a result of the first incident, and that the respondent's lack of accommodation and resultant second injury exacerbated the applicant's PTSD. The applicant also states his superiors ignored his PTSD signs and symptoms "due to a collective effort to terminate his employment".
4The applicant also alleges the respondent's failure to accommodate him after his second injury forced his resignation in September, 2013, and that the police chief caused him additional harm by discussing his resignation with the media.
5For a period of time during his employment, the applicant was a member of the Emergency Response Unit ("ERU"). The respondent alleges that because of circumstances in the applicant's personal life that the deputy chief of police felt distracted the ERU team, he asked the applicant to step down from that position, which he ultimately did on June 19, 2012. He was instructed to return to uniform patrol on June 22, 2012, and sustained his second injury the first night he returned to uniform patrol.
6The applicant commenced this Application on October 11, 2013 alleging discrimination in employment on the basis of disability, specifically alleging harassment and a poisoned work environment, as well as discrimination in discipline and being denied a workplace opportunity.
7The respondent filed a November 22, 2013 Response in which it raises issues including the manner of the applicant's exit from the ERU; his description of how his second injury happened; and that he incorrectly or misleadingly stated that on October 9, 2012, he had been ordered to remain at work.
8The respondent's allegations also include related events that resulted in the chief of police commencing misconduct proceedings against the applicant in October, 2012, pursuant to the PSA, at which time he was suspended with pay.
9The applicant filed no Reply.
admissibility of evidence
10The hearing in this matter commenced in September, 2015. Early in the respondent's cross-examination of the applicant, applicant's counsel objected to a question about the circumstances surrounding the applicant's ceasing to be a vice-president of the police association. Her preliminary objection was that any questions regarding disciplinary proceedings commenced against the applicant, including in relation to his removal from the ERU, were statute-barred by the operation of subsections 83(7) and (8) of the PSA as follows:
Non-compellability
(7) No person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties under this Part, except at a hearing held under this Part.
Inadmissibility of documents
(8) 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.
11Section 95 of the PSA states:
Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,
(a) as may be required in connection with the administration of this Act and the regulations;
(b) to his or her counsel;
(c) as may be required for law enforcement purposes; or
(d) with the consent of the person, if any, to whom the information relates.
12The hearing was adjourned to allow the parties to make written submissions. The applicant's written submissions included an objection with respect to the relevance of the evidence sought by the respondent.
parties’ submissions
Applicant’s Submissions
13The applicant's submissions set out the issues to be determined in this Application as follows:
Is the applicant disabled?
Was the respondent aware of the applicant's disabilities?
Did the respondent accommodate the applicant's disabilities?
If not, would the respondent suffer undue hardship in accommodating the applicant's disabilities?
14The applicant submits that any evidence with respect to any disciplinary proceedings, including the applicant's removal from the ERU, is irrelevant to addressing these issues.
15Specifically, the applicant objects to any evidence being introduced with respect to:
a. any disciplinary actions the respondent took against the applicant, including his removal from the ERU, and any discussions between the applicant and the respondent's employees respecting same;
b. any information relating to any disciplinary steps the respondent took against the applicant in October, 2012; and
c. any information about the criminal charges laid against the applicant in 2013.
16In the alternative, the applicant submits that information relating to any complaint made under the PSA is not arguably relevant to this Application and should not be admitted.
17In the further alternative, the applicant argues the unproved issues relating to disciplinary steps and criminal charges against him are not relevant to the issues of accommodation raised in this Application.
18The applicant submits he did not raise in the Application any disciplinary steps the respondent took against him, nor did he give any evidence in that respect. Therefore, any such information is not relevant, and any evidence obtained through the PSA investigation has no bearing on the findings the Tribunal must make.
19In addition, the allegations contained in the disciplinary actions and criminal charges have not been proved and are of no probative value. Instead they prejudice the applicant in this hearing, which is to determine if the applicant was accommodated on the basis of his disability.
20The applicant submits that any information to which he objects relates to matters or complaints under the PSA and therefore such evidence is inadmissible in these proceedings, pursuant to sections 83 and 95. He cannot be compelled to testify with respect to information he obtained during the course of his duties or in relation to information learned in the course of investigating a complaint.
21While certain exceptions exist, the applicant argues his circumstances do not fit into any of them.
Respondent’s Submissions
22The respondent first takes the position that in determining the applicability of the relevant sections of the PSA, this hearing is not a "civil proceeding" and therefore the statutory privilege provisions in the PSA are inapplicable.
23Second, if the PSA provisions are applicable, there are exceptions to the secrecy requirements of the PSA, specifically that a person may be required to testify for "law enforcement purposes" or "with the consent of the person, if any, to whom the information relates".
24The respondent submits the applicant's commencement of this application alleging discrimination and harassment in employment amounts to a waiver and consent pursuant to section 95 of the PSA. The respondent submits that natural justice principles mean the applicant cannot make allegations and then selectively introduce evidence in support of his case while seeking to limit the respondent's ability to provide a full answer and defence.
25The respondent submits the applicant has consented to the disclosure of information related to alleged discipline and conduct in the workplace because he alleges he was disciplined and harassed on the basis of disability.
26The respondent further submits that an application under the Human Rights Code, R.S.O. 1990, c. H.19 constitutes a law enforcement purpose pursuant to section 95 of the PSA, and therefore documents and information regarding the PSA are admissible.
27With respect to the information and documents obtained in the course of the applicant's duties under Part V of the PSA, the respondent submits that the fact that a complaint was made and the facts regarding why it was made are not privileged.
28Finally, with respect to the applicant's argument that any questions about the PSA investigation are not relevant to the issues to be determined in this proceeding, the respondent submits the applicant's allegations include harassment and a poisoned work environment by the deputy chief, as well as inappropriate discussions by the police chief regarding the applicant's criminal charges. Because of that, the evidence it seeks to call about the applicant's removal from the ERU is relevant because it relates to the applicant's allegations about his interactions with the deputy chief. In addition, the evidence with respect to the criminal charges addresses the applicant's allegations that the police chief discussed the applicant's criminal charges in the media. An inability to call this evidence would be prejudicial and deprive the respondent of the ability to make a full defence of the applicant's allegations.
29With respect to the applicant's argument that the disciplinary actions and criminal charges were unproven and therefore offer no probative value, the respondent submits it does not seek to establish just cause or argue issue estoppel, but instead seeks to introduce evidence to defend itself regarding alleged improper activity and to demonstrate that events that occurred between the applicant and the respondent were based on legitimate employment-related concerns and not related to disability. The respondent submits it seeks to introduce evidence that specifically relates to the time period encompassed by the applicant's allegations, the majority of which pre-date the PSA complaint. In the respondent's view, the evidence is relevant to establish that the respondent did not discriminate against or harass the applicant.
Applicant’s Reply
30The applicant counters that there is a distinction in the case law between production of documents under the PSA and the issue of the relevance of the evidence the respondent seeks to enter. In this case, at issue is whether the information the respondent seeks to enter is admissible or relevant. The applicant submits the respondent relies on case law that addresses the production of documents, but not whether those documents ultimately are admissible. Therefore the case law upon which the respondent relies is not applicable to the determination of whether the evidence is admissible.
31With respect to the respondent's submission that the applicant has waived privilege, the applicant submits he has not done so because he did not disclose information related to the evidence the respondent now seeks to introduce, which evidence in his view is irrelevant.
analysis and decision
Relevance
32I first address the issue of relevance. The allegations in the Application are broader than the summary of them the applicant sets out in his submissions. The submissions do not appear to include the applicant's allegations with respect to a poisoned workplace and harassment. His evidence (and the Application), however, included an allegation that the workplace was poisonous and he was harassed at every turn by the deputy chief.
33The information the respondent seek is relevant to the issues before the Tribunal. In my view, the applicant has put these issues squarely before the Tribunal and cannot introduce selectively the events he believes are relevant, while simultaneously denying the respondent the opportunity to fully present their defence by providing the Tribunal with all the evidence pertaining to the relevant time period.
34While the applicant's original objection was with respect to a question the respondent's lawyer asked him about his ceasing to be a vice-president of the police association, her objection is much broader. For that reason, I cannot globally determine that all of the questions the respondent's lawyer will put to the applicant will be relevant, and those determinations will be made during the hearing. As a broad rule, however, information about the events that took place during the relevant time period, including the applicant's removal from the ERU; the disciplinary charges brought under the PSA; and the criminal charges, may well be relevant.
35I disagree with the applicant's submission that the decision in Marshall v. Toronto Police Services, 2012 HRTO 966 is determinative in this case. In that case, the applicant was an individual who sought disclosure of the PSA complaint investigation that resulted from his complaint against the officer. The Tribunal found that the information sought was not relevant because the applicant did not raise any allegations of discrimination with respect to how the PSA investigation was conducted. This case is different because the applicant alleges discrimination that includes harassment by the deputy chief, who also is the person who did the PSA investigation. The respondent seeks to show that the applicant's interaction with the deputy chief was not motivated by the applicant's disability. As such, in my view, some questions about the PSA proceedings in this case may well be relevant.
36The applicant also objected to the respondent being permitted to ask questions about the PSA investigation and the criminal charges based on the fact that the allegations in the criminal charges and PSA disciplinary proceedings are unproven, but again this is not in my view determinative of whether questions about the PSA proceedings are admissible in this proceeding. The respondent does not seek to establish just cause or argue issue estoppel.
37While I cannot predict what questions I may find to be relevant, I find that questions about the PSA disciplinary charges and criminal charges potentially are relevant.
38Given my ruling with respect to the potential relevance of the questions, I now turn to the issue of whether there is any prohibition on my hearing some of the evidence based on the application of the relevant sections of the PSA.
application of the psa with respect to testimony and document production
39The first question to be determined is whether or not the applicant is permitted to testify with respect to the PSA proceedings, given the operation of sections 83 and 95 of that Act.
40Subsection 83(7) of the PSA states that no person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties under this Part [Part V - Complaints and Disciplinary Proceedings], except at a hearing held under this Part. Section 95 of the PSA also deals with secrecy, and sets out some exceptions that permit disclosure to be made.
41The first argument the respondent make is that subsection 83(7) of the PSA does not apply because this Application does not constitute a "civil proceeding" as contemplated by that subsection.
42The Tribunal addressed this issue in Marshall v. Toronto Police Services, 2013 HRTO 262 ("Marshall"). While that decision dealt with the admissibility of documents pursuant to subsection 83(8), I find that it equally applies to subsection 83(7) given that both subsections refer to a "civil proceeding".
43I concur with the thorough analysis of the Tribunal in that decision and find that the hearing of this Application is not a "civil proceeding", which attracts the protection of subsection 83(7). As pointed out by the Tribunal in that case, civil proceeding is not defined in the PSA. The Code on the other hand contains a reference to a civil proceeding "in a court" in subsection 34(11), and the Courts of Justice Act, R.S.O. 1990, c. C.43 defines actions and applications as "civil proceedings". I agree with the Tribunal's finding that the PSA reference to civil proceedings refers to court proceedings, and therefore the applicant can testify in this hearing with respect to information obtained in the course of his or her duties because subsection 83(7) and (8) do not apply to this hearing.
44I note that the Tribunal goes on to deal with the issue of whether or not the Tribunal's hearings fall into one of the statutory exceptions set out in section 95 of the PSA, specifically whether an application under the Code is a "law enforcement proceeding". I agree with the Tribunal's assessment, but I do not believe this further analysis is necessary, because having concluded that Code applications are not civil proceedings it is unnecessary to go further and consider the exceptions.
45With respect to document production, I note that while the issue of document production has not been addressed specifically by the applicant, and in fact he has attempted to distinguish the case law that deals with document production, in reviewing the parties' documents, I note the PSA complaint has been produced by the respondent. It is therefore worth addressing the issue of its admissibility in the context of subsection 83(8) of the PSA.
46As noted above, subsection 83(8) of the PSA provides in part that "no document prepared as the result of a complaint made under this Part is admissible in a civil proceeding [...]". For the same reasons that I find the applicant can testify with respect to the PSA proceedings, I find that the documents are admissible as well.
order
47The Tribunal orders:
a. The applicant is compelled to testify with respect to the PSA proceedings, subject to a determination of relevance, if required; and
b. The PSA complaint and investigation are admissible, subject to a determination of relevance, if required.
Dated at Toronto, this 2nd day of February, 2016.
"Signed By"
Dawn J. Kershaw
Vice-chair