James v. The Regional Municipality of Waterloo Police Services Board, 2016 HRTO 206

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark James

Applicant

-and-

The Regional Municipality of Waterloo Police Services Board

Respondent

-and-

Waterloo Regional Police Association

Intervenor

INTERIM DECISION

Adjudicator: Mark Hart

Date: February 16, 2016

Citation: 2016 HRTO 206

Indexed as: James v. The Regional Municipality of Waterloo Police Services Board

APPEARANCES

Mark James, Applicant

Osborne Barnwell, Counsel

The Regional Municipality of Waterloo Police Services Board, Respondent

Don Jarvis and Anne-Marie Heenan, Counsel

Waterloo Regional Police Association, Intervenor

Nini Jones and Debra McKenna, Counsel

1This is an Application dated May 9, 2014 alleging discrimination with respect to employment because of race, colour, ancestry, sex, family status and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application also alleges contraventions of certain Minutes of Settlement entered into between the parties on May 28, 2013.

2The purpose of this Interim Decision is to address the respondent’s request for dismissal of the Application, in whole or in part, on the following bases: as an abuse of process; as being in violation of the Minutes of Settlement and Full and Final Release executed by the parties on May 28, 2013; for delay; as not having any reasonable prospect of success; and/or as including allegations that are not relevant to any alleged violation of the applicant’s rights. While the respondent also requested removal of all personal respondents, this issue need not be addressed as the applicant consented to the removal of all personal respondents with the exception of one individual. As the only allegation against this individual is dismissed pursuant to this Interim Decision, there is no basis for continuing this proceeding as against him personally and his name has been removed from the title of proceeding.

3By Case Assessment Direction (“CAD”) dated January 27, 2015, I directed that the respondent’s request would be addressed at an in-person preliminary hearing, which was held on August 20, 2015. At this preliminary hearing, I heard submissions from the parties and the intervenor, the Waterloo Regional Police Association. No oral evidence was heard at the preliminary hearing, in accordance with my direction.

4Before proceeding to deal with the issues addressed at the preliminary hearing, I note that the Waterloo Regional Police Association (“WRPA”) filed a Request to Intervene on August 6, 2014, which has not yet been formally granted. I hereby grant the WRPA intervenor status in this proceeding, with the scope of its participation to be related to issues raised in this proceeding that affect the interests of the Association, the collective agreement, or its members.

Clarification of issues raised in the Application

5At the commencement of the preliminary hearing, I sought clarification and confirmation from the applicant as to the specific allegations raised in the Application upon which he was asking this Tribunal to find either that his rights under the Code had been violated by the respondent or that the Minutes of Settlement had been contravened. As noted in the CAD dated January 27, 2015, any allegations of a violation of the Minutes of Settlement ought to have been raised by the filing of a Contravention of Settlement Application under Rule 24. However, as these allegations are being raised in the context of the instant Application in addition to other alleged violations of the applicant’s rights under the Code, I have the authority under the Rules to relieve against this technical deficiency and I hereby do so.

6Based upon the Application and the applicant’s submissions at the preliminary hearing, it was clarified and confirmed that the following issues are raised in this proceeding (para. references are to paras. from Schedule A to the Application):

1. That the respondent violated para. 8 of the Minutes of Settlement on the basis that the training required by that settlement provision has not occurred (para. 5);

2. That the respondent violated para. 10 of the Minutes of Settlement on the basis that the applicant has not been provided with mentorship and has not been given an opportunity to attend the OPC course referenced in that settlement provision (para. 7);

3. That the respondent violated the applicant’s rights under the Code as result of a directive issued to him on February 15, 2013 not to conduct personal business while on duty, including during his paid lunch period, without authorization from superior officer, which interfered with the applicant’s ability to transport his daughter to or from school. At the preliminary hearing, it was clarified that this was an allegation of discrimination because of race, colour, ancestry, family status and reprisal (paras. 9 to 26, 48, and 62 to 67);

4. That the respondent violated an oral agreement made at mediation that a specific supervisory officer would be removed from the Division within which the applicant worked within one month (paras. 27 to 28);

5. That during the period from May 2013 to January 2014, the respondent failed to prepare a proper return to work plan to re-integrate the applicant into the workplace. This is alleged to be discrimination because of race, colour, ancestry, disability and reprisal contrary to the Code and also reprisal in violation of para. 9 of the Minutes of Settlement. Applicant counsel stated that disability was not identified as a ground alleged in the Application due to an oversight. In this regard, I am prepared to grant an amendment to the Application to include the ground of disability, particularly in relation to this issue and the next issue (paras. 29 to 47, 49 to 56 and 70);

6. That the applicant has not been reimbursed for 1459 hours of sick time attributable to the period from February to December 2013, which is alleged to be discrimination because of race, colour, ancestry, disability and reprisal (paras. 57, 68 and 69);

7. That the applicant was required to work in the same location as two individuals who formed part of the allegations raised in an Application filed by the applicant with this Tribunal in 2011 (the “2011 Application”), which is alleged as reprisal. At the preliminary hearing, the applicant conceded that this allegation was barred by the Minutes of Settlement and Release and agreed that these paragraphs should be struck (paras. 58, 59, 61 and 84);

8. That the applicant’s request not to be under the direct supervision of the supervisor referenced in issue 4 above for the remainder of his career was not agreed to by the respondent, which is alleged to be reprisal under the Code and the Minutes of Settlement in addition to a violation of the alleged oral agreement at mediation (para. 60);

9. That the applicant was prohibited from working in the same work location as his common law spouse while no such prohibition has been applied to other White officers, which is alleged to be discrimination because of race, colour and ancestry as well as reprisal (paras. 77 to 83);

10. That the applicant was excluded from a census survey conducted by the respondent in March 2014, which is alleged to be reprisal contrary to the Code and the Minutes of Settlement (paras. 85 to 88);

11. That the applicant has been the subject of rumours regarding the terms of the settlement agreement he reached with the respondent and who he did not want to work with, and that no steps have been taken by the respondent to quell these rumours, in contrast to steps taken to quell rumours about a personal relationship involving a senior White officer. This is alleged to be discrimination because of race, colour and ancestry as well as reprisal contrary to the Code and the Minutes of Settlement (para. 96);

12. That the applicant and his common law spouse experienced reprisal contrary to the Code as a result of the manner in which the respondent handled an allegation of assault against the applicant’s daughter in February 2013 (paras. 98 to 115); and

13. That the applicant experienced reprisal as a result of comments alleged to have been made about him in the context of a police disciplinary hearing. This allegation was withdrawn by the applicant at the preliminary hearing (para. 116).

7At the preliminary hearing, the applicant confirmed that the foregoing list of issues represents a full and complete list of all allegations of a violation of the applicant’s rights under Code and/or the Minutes of Settlement being raised in this proceeding.

Are any of the applicant’s allegations barred by the Minutes of Settlement or Release?

8For the purpose of considering whether any of the applicant’s allegations are barred by the terms of the Minutes of Settlement or Release, there are two key provisions of the settlement agreement. The first key provision is para. 5 of the Minutes of Settlement, which states:

The Applicant will execute and return to the Respondent a Full and Final Release in the form of the attached Appendix “A” to these Minutes. Without limiting the generality of the foregoing, the Applicant undertakes and confirms, without time limitation, that he will not seek to rely upon any alleged facts or events forming the subject-matter of the Application in any future proceeding of any kind whatsoever. For clarity, if the Applicant makes any allegations of a breach of the Code in any kind of future proceeding, such allegations of wrongdoing or contravention must be based on events or occurrences following the date of the Application.

9The Application referenced in para. 5 of the Minutes of Settlement is the 2011 Application, which is dated October 29, 2011.

10The second key provision comes from the Full and Final Release executed by the applicant as part of the settlement agreement on May 28, 2013, whereby the applicant releases the respondent and others from any and all claims “which [the applicant has] ever had, now [has] or which [his] heirs, executors, administrators and assigns, or any of them hereafter can, shall or may have up to the date hereof, arising out of or in any way relating to the matters giving rise to [the 2011 Application]”.

11I agree with the respondent that, as a result of the terms of the May 28, 2013 settlement agreement, there are three categories of claims that the applicant is barred from raising:

1. Any claim that relies upon any alleged facts or events forming the subject-matter of the 2011 Application;

2. Any claim that is based on events or occurrences up to October 29, 2011, which is the date of the 2011 Application; and

3. Any claim that the applicant had up to May 28, 2013 arising out of or in any way relating to the matters giving rise to the 2011 Application.

12The respondent takes the position that these provisions of the settlement agreement bar the applicant from raising the issues identified in para. 6 above as issues 3, 4, 6, 7, 8, 9, 11, 12 and 13. As the applicant agreed at the preliminary hearing to the withdrawal of issues 7 and 13, I do not need to address these further.

13Issue 3 relates to the issuance of a directive to the applicant on February 15, 2013 not to conduct personal business while on duty, including during his paid lunch period, without authorization from superior officer, which interfered with the applicant’s ability to transport his daughter to or from school. The respondent takes the position that this allegation is barred by all three categories of prohibition set out in the settlement agreement, on the basis that the issue of the applicant transporting his daughter to and from school was raised in the context of the 2011 Application. I disagree.

14The issue of the applicant transporting his daughter to or from school was not raised as an allegation in the 2011 Application. Rather, the allegation raised by the applicant in the 2011 Application at para. 53 was that a supervisory officer with the respondent told the applicant that he had no further opportunity for future development within the police service. In response to this allegation, as part of the basis for not considering the applicant as suitable for an acting staff sergeant position in September 2011, the respondent stated that this supervisory officer was concerned that the applicant had engaged in improper behaviour, such as transporting his children to school during his shift (Response, para. 59). In reply on that point, the applicant stated that other White officers had similar interactions during work hours with their children and this was not a concern for them.

15In my view, the raising of issue 3 in this proceeding does not constitute reliance by the applicant upon any alleged facts or events forming the subject-matter of the 2011 Application. The directive was issued in February 2013, well after the date of the 2011 Application. Nor is issue 3 based on events or occurrences up to October 29, 2011. With regard to the question of whether issue 3 arises out of or in any way relates to the matters giving rise to the 2011 Application, in my view the critical language here is that issue 3 needs to arise out of or in any way relate to a matter “giving rise to” the 2011 Application. The relevant matter giving rise to the allegation raised in the 2011 Application is an allegation that the applicant was told that he had no further opportunity for future development within the police service. The issue of the applicant transporting his daughter to school during his work shift was raised in the Response as part of the reasons why the applicant was not considered suitable for an acting staff sergeant role at the relevant time. This in my view is materially different from the allegation raised as issue 3 in this proceeding, namely that the applicant was issued a specific directive in February 2013 prohibiting him from transporting his daughter to or from school during his lunch period.

16The respondent also submitted before me that the general intention of settlement agreements is to resolve all outstanding issues up to the date of the settlement. While that may be a statement of general intention, the issue of whether the raising of an allegation in a legal proceeding subsequent to any settlement agreement is barred depends entirely upon the specific terms of that agreement. In this case, both parties were represented at mediation by experienced legal counsel. If the intention of the parties was to bar the applicant from proceeding with any claims of any nature up to the date of the settlement agreement, then such language could and should have been clearly reflected in the terms of the settlement agreement or release. However, as set out above, the specific language included in the May 28, 2013 settlement agreement was more restrictive in identifying the specific claims that the applicant was barred from pursuing in any future proceeding, and I have found that issue 3 does not fit within any of the prohibited categories.

17The respondent also submitted at the preliminary hearing that, because the terms of the Minutes of Settlement included a specific provision relating to the supervisory officer who issued the directive, the settlement agreement should be regarded as having “occupied the field”, such that no claims regarding the conduct of this supervisory officer up to the date of the settlement agreement should be allowed to proceed. Once again, I disagree. The specific term of the settlement agreement relating to this supervisory officer states that: “For a period of one year from the date of execution of this settlement, [the supervisory officer] will not be involved in disciplinary action or performance management / appraisal processes relating to the Applicant.” In my view, that provision of the Minutes of Settlement speaks to an entirely different issue that the issuance of the directive which forms the basis of issue 3.

18With regard to issue 4, the applicant’s allegation is that the respondent violated an oral agreement made at mediation that this same supervisory officer would be removed from the Division in which the applicant worked within one month of the date of the settlement agreement. This is an allegation that this oral agreement formed part of the settlement agreement, despite not having been reflected in its written terms. I will address this below in the context of whether this allegation has any reasonable prospect of success. However, at this point, I only note that an allegation that there was an oral agreement that formed part of the settlement is not barred by any of the categories of prohibition set out in the settlement agreement.

19With regard to issue 6, the applicant’s allegation is that he has not been reimbursed for 1459 hours of sick time attributable to the period from February to December 2013. The respondent’s position is that this is an issue that ought to have been raised in the context of the settlement discussions on May 28, 2013, and represents an after-the-fact attempt by the applicant to re-negotiate the terms of settlement. Once again, I disagree. The mediation held on May 28, 2013 was in the context of attempting to resolve the issues raised in the 2011 Application. To the extent that the parties wished also to resolve other issues that had arisen in the intervening period up to May 28, 2013, they were certainly free to do so. But the issue before me is not whether the applicant ought to have raised this issue as part of the settlement discussions on May 28, 2013, but whether his raising of this issue in the current proceeding is barred by the specific terms of the settlement agreement. Once again, in my view, the allegation raised in issue 6 is not caught by any of the three categories of prohibition set out in the settlement agreement. In raising issue 6, the applicant is not relying upon any alleged facts or events forming the subject-matter of the 2011 Application; the allegation is not based on events or occurrences up to October 29, 2011; and the allegation does not arise out of or in any way relate to the matters giving rise to the 2011 Application.

20With regard to issue 8, the applicant’s allegation is that his request not to be under the direct supervision of the supervisor referenced in issue 4 above for the remainder of his career was not agreed to by the respondent. In my view, this issue once again is not caught by the specific prohibitions in the Minutes of Settlement and Release. However, this is an issue where the parties specifically turned their minds to the matter of the involvement of this supervisor in relation to the applicant’s employment, and expressly agreed to a one year limitation on this supervisor’s involvement in specific aspects of the applicant’s employment, namely discipline and performance appraisal or management issues. As a result, in respect of this issue, I find that the specific provision in the settlement agreement did occupy the field, thus preventing the applicant from raising an allegation in this proceeding regarding a longer period of time, namely the rest of his career, and a different scope for the supervisor’s involvement in his employment than was negotiated in the settlement. Accordingly, I find that allegation 8 is barred by the settlement agreement and this allegation is struck.

21With regard to issue 9, the allegation here is that the applicant was prohibited from working in the same work location as his common law spouse while no such prohibition has been applied to other White officers. I appreciate that the examples of White officers cited by the applicant in the Application post-date the 2011 Application and the May 28, 2013 settlement. However, the issue of the applicant being told that he would never be allowed to work in the same division as his spouse was expressly raised in the 2011 Application at para. 50, and examples of White officers who were not subject to the same restriction were expressly cited in the 2011 Application at para. 51 in support of an allegation of racial discrimination made in the 2011 Application. As a result, in my view, this is an issue giving rise to the 2011 Application and is barred by the express terms of the Release. The fact that the applicant is now citing additional examples of White officers who are not subject to the same prohibition does not, in my view, change the essential nature of this allegation.

22In addition, the Minutes of Settlement expressly address the issue of the workplace assignment of the applicant and his common-law spouse at para. 7, whereby the parties agreed that the applicant and his common-law spouse would be based at the Central and North Divisions respectively for a period of two years from the date of the settlement agreement, subject to certain exceptions. Given that this issue was expressly dealt with in the settlement agreement, once again in my view this express agreement has occupied the field, and it is not open to the applicant in this proceeding to raise essentially the same allegation in support of a claim of racial discrimination and reprisal. Accordingly, I find that issue 9 is barred by the terms of the settlement agreement and the associated paragraphs in the Application are hereby struck.

23With regard to issue 11, the applicant alleges that he has been the subject of rumours regarding the terms of the settlement agreement he reached with the respondent and who he did not want to work with, and that no steps have been taken by the respondent to quell these rumours, in contrast to steps taken to quell rumours about a personal relationship involving a senior White officer. In my view, there is no prohibition in the settlement agreement which bars the applicant from raising this allegation. Further, at para. 6 of the Minutes of Settlement, I note that all parties agreed that: “If asked about either the [2011 Application] or the terms of settlement, the parties will indicate only that all outstanding matters related to the [2011 Application] were amicably resolved through mediation.” If the respondent has breached this provision of the Minutes of Settlement by sharing information about the terms of settlement or the issues raised in the 2011 Application, then in my view that is a matter that is properly raised in this proceeding. At the same time, I note that the Application as currently drafted is entirely devoid of particulars as to the specific nature of the alleged rumours about the settlement agreement or who the applicant does not want to work with, which were only raised orally for the first time at the preliminary hearing. Accordingly, I hereby order the applicant to provide full particulars as to the alleged rumours that form the basis of this allegation, including what the specific rumour(s) were, who he heard them from, when and in what context.

24With regard to issue 12, the applicant alleges that he and his common-law spouse experienced reprisal contrary to the Code as a result of the manner in which the respondent handled an allegation of assault against the applicant’s daughter in February 2013. At the preliminary hearing, the applicant clarified that he was not seeking to raise an allegation on his common-law spouse’s behalf that her rights under the Code had been violated, but rather an allegation that the actions taken by the respondent in relation to the investigation of the alleged assault amount to reprisal against him in violation of his rights, even though the object of the reprisal in part was his common-law spouse. I note in this regard that there is precedent for a reprisal allegation of this nature: see McKinnon v. Ontario (Ministry of Correctional Services) (No. 3) (1998), 1998 CanLII 29849 (ON HRT), 32 C.H.R.R. D/1.

25In my view, this allegation is not barred by any of the categories of prohibition set out in the settlement agreement. This applicant is not relying upon any alleged facts or events forming the subject-matter of the 2011 Application; the allegation is not based on events or occurrences up to October 29, 2011; and the allegation does not arise out of or in any way relate to the matters giving rise to the 2011 Application.

Should any of the remaining allegations be dismissed for delay?

26Section 34(1) and (2) of the Code state:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incidents to which the application relates; or

(b) if there was series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

27If, as in the instant case, there are incidents of alleged violations of the Code within the one year period, but other incidents of alleged violations that are outside the one year period, then this Tribunal needs to consider whether the untimely alleged incidents form part of a “series of incidents” that extends to and includes any of the timely alleged incidents, within the meaning of s. 34(1)(b) of the Code.

28In determining whether prior alleged incident(s) form part of a “series of incidents”, the Tribunal considers the following factors:

1. What is the last alleged incident of discrimination to which the Application relates?

2. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

3. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

4. What is the temporal gap between alleged incidents of discrimination?

See Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 30.

29With regard to factor (3), when assessing whether the allegations relate to a “series of incidents”, the Tribunal will generally consider the nature of the events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents relating to discrete and separate issues without some connection or nexus. See, for example, Baisa v. Skills for Change, 2010 HRTO 1621. In Pakarian v. Chen, 2010 HRTO 457, the Tribunal defined the word “series” as “a number of things or events of the same class coming one after another in spatial or temporal succession”. A “series of incidents” may be considered to exist where the incidents share a common theme, similar parties and/or circumstances: see Twyne v. Dominion Colour Corporation, 2013 HRTO 1769.

30To the extent that the applicant in this proceeding is raising alleged violations of the Minutes of Settlement, the relevant provisions are ss. 45.9(3) and (4) of the Code, which state:

(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(4) A person may apply under subsection (3) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

31Of note in relation to s. 45.9(3) is that the time period in which to raise an alleged contravention of settlement is six months after the alleged contravention, as opposed to the one year period in s. 34(1) of the Code for raising an alleged incident of discrimination.

32I will start first by identifying the timely incidents of alleged violations of the applicant’s rights under the Code which have been raised in this proceeding, that is those allegations that are within one year of the date the Application was filed on May 9, 2014. These are:

1. That during the period from May 2013 to January 2014, the respondent failed to prepare a proper return to work plan to re-integrate the applicant into the workplace. This is alleged to be discrimination because of race, colour, ancestry, disability and reprisal contrary to the Code and also reprisal in violation of para. 9 of the Minutes of Settlement (identified as issue 5 above);

2. That the applicant has not been reimbursed for 1459 hours of sick time attributable to the period from February to December 2013, which is alleged to be discrimination because of race, colour, ancestry, disability and reprisal (identified as issue 6 above);

3. That the applicant was excluded from a census survey conducted by the respondent in March 2014, which is alleged to be reprisal contrary to the Code and the Minutes of Settlement (identified as issue 10 above); and

4. That the applicant has been the subject of rumours regarding the terms of the settlement agreement he reached with the respondent and who he did not want to work with, and that no steps have been taken by the respondent to quell these rumours, in contrast to steps taken to quell rumours about a personal relationship involving a senior White officer. This is alleged to be discrimination because of race, colour and ancestry as well as reprisal contrary to the Code and the Minutes of Settlement (identified as issue 11 above).

33The untimely allegations raised in this proceeding, that is those that pre-date May 9, 2013, are:

1. That the respondent violated the applicant’s rights under the Code as result of a directive issued to him on February 15, 2013 not to conduct personal business while on duty, including during his paid lunch period, without authorization from superior officer, which interfered with the applicant’s ability to transport his daughter to or from school. This is an allegation of discrimination because of race, colour, ancestry, family status and reprisal (identified as issue 3 above); and

2. That the applicant and his common-law spouse experienced reprisal contrary to the Code as a result of the manner in which the respondent handled an allegation of assault against the applicant’s daughter in February 2013 (identified as issue 12 above).

34The first question for me to consider is whether the untimely allegations, or either of them, can be regarded as forming part of a series of incidents that extends to and includes at least one of the timely allegations. In making this determination, I have been mindful of the admonition by applicant counsel not to parse the applicant’s allegations too closely and instead to interpret his allegations liberally. However, in order to find a series of incidents within the meaning of s. 34(1) of the Code, I do need to have regard to the factors developed by this Tribunal in making this determination, including the nature of the alleged incidents, whether they share a common theme, and whether they involve similar parties or circumstances. It is not enough for an applicant merely to say that all of the alleged incidents are alleged to be discrimination on the same ground or all are alleged reprisal actions.

35When I consider the timely incidents, they relate to the applicant’s efforts to return to work from sick leave, his efforts to gain reimbursement of his sick bank, alleged rumours about the terms of the settlement and who the applicant did not want to work with, and the alleged exclusion from a census survey. In contrast, the untimely allegations are of an entirely different nature. One relates to the February 2013 directive that prevented the applicant from transporting his daughter to or from school during his lunch period. The other relates to the manner of investigating an allegation of assault against the applicant’s daughter.

36The untimely allegations also involve different parties and circumstances. I appreciate that the supervisory officer who issued the February 2013 directive presented one of the barriers to the applicant’s return to work, as the applicant did not wish to return under this supervisory officer’s command. However, in my view, that does not make this supervisor “involved” in the timely allegation regarding the applicant’s return to work. In order to be regarded as being “involved” in an alleged incident of discrimination, in my view, there must be some basis for an allegation that the person was involved with or participated in the decisions or actions that are relied upon as constituting the incident of discrimination. The persons involved in the decisions or actions at issue in relation to the applicant’s return to work as identified in the Application are the return to work coordinator, the respondent’s human resources department, and various other supervisory officers. There is no allegation or basis for any allegation set out in the Application that the supervisory officer who issued the February 2013 directive played any role in the decisions or actions in relation to the applicant’s return to work, or in relation to any of the other timely allegations.

37Nor, in my view, can the allegation regarding the issuance of the February 2013 directive be regarded as sharing a common theme with any of the timely allegations. As previously stated, it is not enough for the applicant merely to allege that all of these are allegations of racial discrimination or reprisal. A common theme requires more than that. When I look at this allegation in relation to the timely allegations, no common theme is apparent to me beyond the fact that the applicant was aggrieved by all of these matters.

38The same is true for the allegation regarding the assault investigation. This allegation is clearly of a different nature than the timely allegations. There is no allegation or basis for any allegation set out in the Application that the individuals involved in how the assault investigation proceeded were involved in or played any role in the applicant’s return to work, or the sick bank issue, or the census survey, or the alleged rumours. Once again, I appreciate that the supervisory officer who is alleged to have given direction regarding the conduct of the assault investigation is the same individual who is cited as an example of a circumstance where the respondent took steps to quell rumours about a personal relationship. However, once again, that does not serve to make this individual involved in the timely allegation. And, with regard to this allegation, I fail to see any more of a common theme than with regard to the other untimely allegation.

39The applicant relied upon the Garrie decision to argue that the prohibition against using his lunch period to transport his daughter to or from school was a series of separate and independent incidents of discrimination, which arose each time he was unable to use his lunch period for this purpose. This, it was submitted, was analogous to the situation in Garrie where the act of discrimination was regarded as being repeated each time the applicant received a paycheque at a discriminatory rate. With respect, it is my view that these two situations are not analogous. In the instant case, the prohibition stemmed from a specific directive that was issued at a specific time in February 2013, and the impact on the applicant in not being able to transport his daughter during his lunch hour is more in the nature of the continuing impact of a single incident of discrimination. This in my view is more analogous to the situation addressed by this Tribunal in Clarke v. Canadian Blood Services, 2011 HRTO 411, where it was held that the respondent’s decision to refuse the applicant’s offer to donate blood was a single incident of alleged discrimination made at a specific time and could not be regarded as falling within the one year period simply because it remained in effect at the time the application was filed.

40Accordingly, I find that the issues identified as issues 3 and 12 above are untimely. As a result, I next need to consider whether the delay in bringing these allegations forward was incurred in good faith within the meaning of s. 34(2) of the Code. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (“Miller”), this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

41In his written submissions in response to the respondent’s request to dismiss part of the Application for delay, the applicant stated that in a workplace situation, an employee’s first impulse is not to run off to lodge a complaint against his employer, particularly in the context of an organization like the police service and the fear of reprisal which forms the foundation of the applicant’s complaint. These kinds of explanations for delay in raising an allegation of a Code violation have been considered by the Tribunal in the past, and have not been considered sufficient to support a finding that the delay was incurred in good faith: see for example Ellis v. Ontario Secondary School Teachers’ Federation, 2010 HRTO 2162.

42In addition, I note that the applicant had legal counsel throughout this period and had previously filed a human rights application against this same employer in 2011. I further note that, on the basis of the Application itself, the applicant states that he did not regard the Minutes of Settlement and Release as barring him from proceeding with an allegation about the February 2013 directive, and that it was anticipated that another complaint would be lodged against the supervisory officer who was responsible for issuing the directive. This can only mean that, at or about the time the settlement agreement was entered into in May 2013, the applicant intended to file a further human rights application to address the February 2013 directive but then failed to do so until May 2014, almost 15 months after the alleged incident. These circumstances also, in my view, militate against a finding that the delay in raising these allegations was incurred by the applicant in good faith.

43At the preliminary hearing, the applicant submitted that, on the basis of an oral representation he alleges was made to him at mediation that this supervisory officer would be removed from the division within one month, it was reasonable for him to wait before raising the allegation in an application filed with this Tribunal. He submitted that it was reasonable for him to assume that, if this supervisory officer was no longer in command, the February 2013 directive would no longer be in effect. He states that he discovered that it remained in effect after he returned to work in December 2013, and then filed his Application shortly thereafter in May 2014.

44I do not accept this as sufficient to establish a good faith explanation for the applicant’s delay. I do not understand why the applicant would assume, incorrectly as it turned out, that the February 2013 directive would no longer be in effect simply because the supervisory officer who issued the directive was no longer in charge of the division. He may have hoped that the new supervisory officer in charge would take a different view of the matter, but that is quite different than operating on the basis of an assumption that the directive automatically would no longer be in force.

45Finally, with regard to the allegation regarding the February 2013 assault investigation, I note that the Application refers to access to information requests made by the applicant in relation to this investigation in January 2014. The processing of the applicant’s access to information request appears to have been ongoing at the time the Application was filed. However, the mere fact that the applicant was pursuing disclosure regarding records of the investigation within one year of the filing of the Application does not result in any conclusion that the alleged incident of discrimination occurred within the one year period. This Tribunal has held that it is not a good faith reason for delay that an applicant was seeking out evidence in support of an allegation of discrimination: see for example: Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224.

46Having found that the applicant has not satisfied me that the delay incurred in raising the allegations identified as issues 3 and 12 was incurred in good faith, it is not necessary for me to consider whether the respondent would suffer substantial prejudice as a consequence of the delay. As a result, issues 3 and 12 are dismissed for delay and the associated paragraphs in the Application are hereby struck.

47Finally, with regard to the alleged breaches of the Minutes of Settlement, it is not clear from the materials before me whether or not the alleged contraventions occurred within the six month period prior to the filing of the Application on May 7, 2014, which would be on or after December 7, 2014. Paras. 8 and 10 of the Minutes of Settlement, which are alleged to have been violated in issues 1 and 2, do not set out a specific time period within which the required actions are to be completed. Further, to the extent that the applicant is alleging a violation of the settlement arising from the alleged rumours regarding the settlement terms and the issues raised in the 2011 Application as part of issue 11, it is unclear to me without further particulars from the applicant when these alleged rumours became known to him. Accordingly, I will not make any determination at this time as to the timeliness or otherwise of these allegations, and the respondent may raise a timeliness issue regarding alleged contraventions of settlement at a later time on the basis of more complete information, if warranted.

Do issues 4 and 6 have a reasonable prospect of success?

48In its materials and submissions before me, the respondent has sought to strike a number of paragraphs in the Application as having no reasonable prospect of success. In my view, the appropriate approach here is to work from the issues raised in the Application as clarified and confirmed by the applicant at the preliminary hearing, and assess whether any of those issues which have not already been dismissed have a reasonable prospect of success.

49I am aware that the respondent has identified a variety of other paragraphs in the Application as either being unrelated to a prohibited ground of discrimination, being raised on behalf of other employees, or being in support of an allegation of systemic discrimination. Except to the extent that any of these paragraphs pertain to a specific issue raised in the Application, I will not address them in this part of my Interim Decision as to whether they have a reasonable prospect of success. Rather, later in this Interim Decision, I will consider whether other paragraphs of the Application which I understand are being advanced as material facts supportive of the applicant’s allegations, should be dismissed on the basis of relevance or admissibility.

50Of the issues raised in this proceeding which have not already been dismissed as barred by the settlement agreement or for delay, it is only issues 4 and 6 which the respondent has submitted should be dismissed as having no reasonable prospect of success.

51With regard to issue 4, the applicant has alleged that the respondent violated an oral agreement made at mediation that a specific supervisory officer would be removed from the Division in which the applicant worked within one month. This allegation is based upon oral representations alleged to have been made by the respondent at the mediation of this matter on May 28, 2013. On its face, in the presence of a written settlement agreement signed by the parties which evidences the basis upon which the 2011 Application was resolved, this allegation runs afoul of the parol evidence rule.

52As discussed at length in Thornton v. Toronto Police Services Board, 2012 HRTO 2412 (“Thornton”), there are very limited exceptions to the parol evidence rule. One exception is where there is some ambiguity regarding a term of the settlement agreement. In the instant case, there is no such ambiguity, as there is no provision in the agreement that speaks to the removal of this supervisory officer from the Division in which the applicant worked.

53A second exception to the parol evidence rule exists where it is alleged that there was misrepresentation or fraud in order to induce a party to enter into an agreement. As stated in Thornton, where, as in the instant case, a party to an agreement is relying upon a representation made by another party to the agreement as having induced the first party into entering into the agreement and as having the effect of establishing an enforceable collateral agreement, the oral representation forming the basis of the collateral agreement cannot be contradictory to or inconsistent with the written agreement and there must be a clear intention to create a binding agreement. In the instant case, the role of this specific supervisory officer in relation to the applicant’s continued employment was expressly addressed in the Minutes of Settlement, and a specific provision was included which provided that this supervisory officer would not be involved in discipline or performance appraisal / management of the applicant for a period of one year. In the face of this specific provision in the settlement agreement, it is my view that an assertion that there was an oral representation that was intended to be binding on the parties that this supervisory officer would be removed from the Division in which the applicant worked would be inconsistent with and contradictory to the express provision in the settlement agreement dealing with this same supervisory officer.

54I also note the statement I made in the Thornton decision that allowing this type of allegation to proceed would be inconsistent with this Tribunal’s practice of mediation, as follows (at para. 20):

. . . I do not believe that it is consistent with the practice of mediation at this Tribunal to allow parties to introduce evidence regarding statements made at mediation by opposing parties in order to add to or enhance what is set out in a written settlement agreement. The parties to mediation at the Tribunal are routinely informed that statements made by opposing parties are “without prejudice” in the sense that they cannot be used as evidence at any Tribunal hearing or in any other proceeding. This is part of the Confidentiality Agreement that parties sign as a pre-condition for engaging in mediation at this Tribunal. The purpose of this is to encourage open and frank discussion in an effort to resolve the matter, without any of the parties having to fear that what they say could be used against them at some later stage. In my view, it would be inconsistent with such practice to allow a party to introduce evidence regarding statements alleged to have been made by an opposing party at mediation in order to buttress a breach of settlement allegation. At mediation, the parties reduce any settlement agreement to writing for a reason, which is to have a clear record regarding what they have agreed upon and to afford a basis for enforcement, where necessary, under s. 45.9 of the Code. If there are significant elements of the agreement that a party is relying upon as part of the resolution, then these should be reduced to writing and contained in the written settlement.

55My views in this regard have not changed in the intervening years. The applicant relies upon this Tribunal’s decision in Berger v. City of Toronto, 2015 HRTO 129 (“Berger”) to argue that there are exceptions to the principles discussed in the Thornton decision where a competing public interest outweighs the public interest in encouraging settlement. The applicant submits that there is a public interest in ensuring that undertakings and promises made by counsel at mediation are respected and followed.

56I will first note that the Berger decision addressed a different issue than the one before me. In Berger, the applicant was not alleging that the respondent had violated a collateral oral agreement made at mediation which was not set out in the written settlement agreement. Rather, the applicant was alleging that he had experienced reprisal as a result of being excluded from a job competition that occurred subsequent to the settlement agreement, and was seeking to rely upon statements made at mediation to support his allegation of an intention by the respondent to reprise against him. As a result, this engaged the issue of whether this proposed evidence was inadmissible due to settlement privilege, which is the context in which the “competing public interest” exception is framed. That is an entirely different question than the issue of the circumstances in which a court or tribunal will enforce an oral collateral agreement in the face of a written agreement.

57In any event, while I agree that there is an important public interest in ensuring that undertakings and promises made by counsel at mediation are respected and followed, this begs the question of whether any such undertaking or promise in fact was made in the instant case and the circumstances in which a court or tribunal would even hear evidence of an alleged oral collateral agreement. Further, the competing public interest advanced by the applicant must outweigh the public interest in encouraging settlement. For the reasons I expressed in the Thornton decision, it is my view that allowing a party to assert the existence of an oral collateral agreement in the face of a written settlement agreement where the alleged oral collateral agreement is contradictory to and inconsistent with the terms of the written settlement agreement would do violence to this Tribunal’s mediation process and the public interest in achieving finality to the resolution of human rights applications on clear and enforceable terms.

58As a result, I find that issue 4 has no reasonable prospect of success, and hereby strike paragraphs 27 and 28 (in part) of the Application. I am only striking para. 28 in part, as the opening part of this paragraph relates to issue 5 and the applicant’s return to work. As a result, only the concluding words “without fulfilling the one-month agreement to transferring [the supervisory officer]” are struck. The respondent also sought to strike para. 70 as forming part of issue 4. In my view, this paragraph remains relevant to the return to work issue (issue 5) and references the specific date on which this supervisory officer was transferred out of the applicant’s Division without tying that to any alleged oral agreement at mediation. Accordingly, the respondent’s request to strike this paragraph is denied.

59The second issue on which the respondent seeks dismissal for no reasonable prospect of success is issue 6, which is the applicant’s allegation that he has not been reimbursed for 1459 hours of sick time attributable to the period from February to December 2013. This is submitted to have no reasonable prospect of success on the basis that this was a live issue at the time of mediation and was not raised by applicant or his counsel during the settlement discussions, and represents an attempt to re-negotiate the terms of settlement. This submission already has been addressed above. The purpose of the May 28, 2013 mediation was to resolve the 2011 Application. To the extent that the parties sought to raise and resolve other issues at the same time, this was entirely up to them. But in order for the settlement agreement to be regarded as precluding the applicant from subsequently raising issue 6, there would need to be some specific basis in the terms of the Minutes of Settlement or Release which prohibits him from doing so. As already discussed above, I have found that the applicant is not prohibited by the settlement agreement from proceeding with issue 6. As a result, the respondent’s request to dismiss this issue as having no reasonable prospect of success is denied.

Should certain paragraphs of the Application be struck as a violation of the applicant’s confidentiality obligations?

60The respondent submits that paras. 4, 8 and 27 of the Application should be struck as violating the applicant’s confidentiality obligations pursuant to the confidentiality agreement signed at mediation and the terms of the Minutes of Settlement.

61Para. 27 already has been struck as part of issue 4 on the basis of no reasonable prospect of success.

62Para. 4 sets out the entirety of the terms of the Minutes of Settlement. In this regard, I note that the applicant is alleging a contravention of certain terms of the Minutes of Settlement. These terms clearly are material facts relevant to the allegations raised, and in my view the recitation of these terms in the Application is not barred by the applicant’s confidentiality obligations. In addition, as is clear from the above, virtually all other paragraphs of the Minutes of Settlement have been relevant to the issues to be determined in this Interim Decision, with the exception of the terms for monetary payments at paras. 3 and 4 of the Minutes of Settlement. As no issue has been raised in relation to these specific terms of the Minutes of Settlement and they are not relevant to any other issue between the parties, in my view it is appropriate for these specific provisions of the terms of the Minutes of Settlement to be struck from the Application.

63With regard to para. 8, this paragraph describes the applicant’s belief that the settlement agreement did not preclude him from proceeding with issue 3 against a particular supervisory officer. As issue 3 has been dismissed for delay, this paragraph is no longer relevant to this proceeding. Accordingly, this paragraph is hereby struck from the Application.

Should any other paragraphs be struck from the Application?

64In addition to the issues that have already been dismissed either as barred by the settlement agreement, for delay, or as having no reasonable prospect of success and the paragraphs from the Application associated with these issues having been struck, the respondent requests that a number of other paragraphs in the Application be struck. I have divided these paragraphs into four categories, which I will proceed to address.

65The first category of paragraphs is para. 71 of the Application, which references a procedure of the respondent police service that came into effect on August 23, 2013, the objective of which is alleged by the applicant to be to “gag” incidents where the police service breaches its own procedures. Whether or not this is the case, I fail to see how this paragraph sets out a material fact that is relevant to the remaining issues raised by the applicant in this proceeding. As a result, this paragraph is struck on that basis.

66The second category of paragraphs is paras. 72 to 76 of the Application, which generally make reference to other racialized officers employed by the respondent who also are alleged to have experienced racial discrimination. My understanding is that these paragraphs are being relied upon by the applicant in this proceeding as similar fact or pattern evidence to support his personal allegations of racial discrimination. I have considered the applicant’s submission that it is premature for me to essentially make a ruling on the admissibility of proposed similar fact or pattern evidence, which is a matter best left for the hearing. While I do not entirely disagree with that submission, I note that the reference to this kind of evidence as part of the material facts set out in an Application, if allowed to stand, imposes an obligation on the respondent in its Response to set out material facts in response to these allegations, which requires a respondent to divulge confidential information about other employees and expend resources to prepare to defend against the allegation. In these circumstances, it seems to me, this Tribunal needs to exercise some degree of control over the extent to which a respondent is required to respond to allegations of evidence of this nature.

67In making this determination, it is my view that at this early stage of the proceeding, I should not be applying the test for the admissibility of similar fact evidence at a hearing, as set out in this Tribunal’s decision in Sinclair v. London (City), 2008 HRTO 48 at paras. 23 to 28, which involves the careful weighing of the probative value of such evidence against the potential prejudice to the respondent and the hearing process. Nonetheless, at the pleadings stage of this Tribunal’s process, it seems to me that paragraphs in an Application setting out potential similar fact or pattern evidence should be struck if the probative value of such evidence is so clearly negligible in relation to the issues raised by the applicant that the respondent should not be called upon to respond to such evidence in its Response.

68Para. 72 alleges that the applicant is aware of two other minority officers who have been mistreated by the respondent. No particulars are set out in the Application in relation to the first identified officer (N.M.). However, for the purpose of the preliminary hearing, the applicant filed a list of witnesses he proposed to call at the merits hearing in this matter, which included some details about N.M. This document states that N.M. was arrested and charged for a criminal offence by members of the respondent police service in February 2012, and that these charges ultimately were withdrawn by the Crown. This document also expresses N.M.’s belief that he was arrested because he is Black and a police officer. In my view, N.M.’s circumstances clearly bear no similarity or relation to any of the remaining issues in this proceeding.

69The other officer referenced in para. 72 is R.S. Specific reference is made to the fact that this officer has an outstanding human rights application against the respondent, and that his allegations include but are not limited to discriminatory treatment in relation to his return to work. In relation to the potential evidence of R.S., given that there is at least some potential basis in the material before me to indicate that at least some portion of his allegations against the respondent may bear some similarity to at least one of the remaining issues raised by the applicant in this proceeding, it is my view that it would be premature to strike the reference to R.S. in this paragraph. As a result, I hereby strike para. 72 in part to remove the reference to N.M. in this paragraph and to change the opening sentence to refer to only one minority officer.

70Para. 73 makes reference to a third racialized officer (C.R.) who is alleged to have experienced harassment and discriminatory treatment from his supervisory officer. This situation is alleged to have implicated the higher level supervisory officer referenced in issue 3 raised by the applicant in this proceeding, which has been dismissed for delay. Once again, in my view, this proposed evidence is so clearly different than any of the remaining allegations raised by the applicant in this proceeding, including the fact that the supervisory officers alleged to have been involved in this situation no longer form part of any of the remaining allegations, that it is of negligible probative value to this proceeding and should be struck.

71Para. 74 makes reference to a fourth officer (C.M.), who apparently was involved in a police disciplinary hearing in which the respondent sought C.M.’s discharge as a police officer. There appear to be two allegations raised in para. 74. The first is that a supervisory officer is alleged to have said that he took certain personal issues into account when assessing the conduct of the individual who is alleged to have harassed and discriminated against N.M., whereas it is alleged that personal issues were not taken into account in relation to the treatment of C.M. In my view, this first allegation simply has no relevance to the remaining issues raised in this proceeding and is therefore struck.

72The second allegation is that C.M. was a victim of reprisal for providing a statement against the respondent in relation to the 2011 Application. In this regard, I note that para. 9 of the Minutes of Settlement states:

The Respondent confirms that no witnesses (including the Applicant) identified by either the Applicant or the Respondent in connection with [the 2011 Application] will be subjected to unlawful reprisals contrary to the Code.

73The question for me to consider is whether this provision in the Minutes of Settlement gives the applicant the right to allege a contravention of settlement on the basis of an alleged reprisal against a third party. While I have indicated above that there is some precedent for an applicant to allege that he experienced reprisal contrary to the Code on the basis of adverse actions taken against a spouse, I am unaware of any authority for an applicant to be able to allege that he experienced reprisal contrary to the Code as a result of alleged adverse action taken against a witness. Certainly, under s. 8 of the Code, the witness himself would be able to file an application alleging reprisal if he experienced reprisal as a result of his participation in a Tribunal proceeding, but there is no precedent for the applicant in such proceeding to bring an application alleging a violation of his rights on the basis of an alleged reprisal against a witness.

74The issue is whether this has changed as a result of the inclusion of para. 9 in the Minutes of Settlement. In my view, para. 9 of the Minutes of Settlement cannot and should not properly be interpreted to allow the applicant essentially to bring a reprisal application on behalf of a third party. In this regard, I note that s. 34(5) of the Code allows an applicant to make an application on behalf of a third party, but only with that person’s consent. To allow an applicant to file a contravention of settlement application alleging reprisal against a third party without requiring that person’s consent would seem to me to be contrary to the legislative scheme under the Code. Further, in my view, para. 9 of the Minutes of Settlement can properly be interpreted as merely a statement of the respondent’s obligations under the Code not to reprise against the applicant or any witnesses involved in the 2011 Application, as opposed to giving the applicant the right to raise an allegation of reprisal against a third party in a contravention of settlement application. Accordingly, I find that the allegation raised in the last sentence of para. 74 is not properly raised before this Tribunal, and hence para. 74 is stuck in its entirety.

75Para. 75 raises another issue involving C.R. arising from him voicing opposition to a press release issued in relation to an investigation involving another officer. It is alleged that other White officers voiced similar opinions, but exception was taken only to C.R. Once again, this allegation bears no relation to the remaining issues raised in this Application and does not involve the actions of any supervisory officers who are alleged to have had involvement in the remaining issues. As such, I find that this allegation bears such negligible probative value to the remaining issues in this proceeding that para. 75 should be struck from the Application.

76Finally, para. 76 sets out a general statement that the respondent by its conduct has shown a tendency to overlook the human rights of its minority officers, thereby making its conduct in relation to the other racialized officers set out in the preceding paragraphs relevant to this proceeding. In my view, given that the majority of the allegations raised in the Application concerning other racialized officers have been struck with the exception of R.S., para. 76 is devoid of particulars and content. For that reason, para. 76 too is struck from the Application.

77The next category of paragraphs is paras. 85 to 95. These paragraphs all detail allegations regarding the conduct of a specific high-ranking supervisory officer with the respondent, who is alleged to have engaged in various forms of inappropriate conduct. At various points in this group of paragraphs, it is alleged that this supervisory officer received preferential treatment in relation to how this alleged conduct was handled due to his membership on the respondent’s senior leadership team. I will first note, as argued by the respondent, that membership on a senior leadership team is not a ground protected under the Code. However, even to the extent that the applicant submits that he is relying on these paragraphs as evidence of differential or preferential treatment in support of his allegations of racial discrimination or reprisal, the circumstances set out in these paragraphs simply bear no relevance or relation to the remaining issues raised in this proceeding. In this regard, I note that it is not at all uncommon for an applicant to allege that another employee who does not share the same personal characteristic at issue was treated differently or preferentially in similar circumstances. Such evidence of differential or preferential treatment is, of course, relevant to the determination as to whether an applicant’s Code rights have been infringed. But in order for such evidence to be relevant, there must at least be some degree of similarity between the allegations raised by the applicant and the circumstances surrounding the alleged differential or preferential treatment. Here, no such similarity exists. As a result, paras. 89 to 95 are struck from the Application.

78The fourth category relates to para. 97, which is an expression of the applicant’s fear that the respondent may carry out reprisals against his common-law spouse. The specific allegation that the respondent engaged in reprisal against the applicant’s common-law spouse in relation to an assault investigation (issue 12) already has been dismissed for delay. There is no other allegation raised in this proceeding of any specific reprisal action taken against the applicant’s common law spouse. As a result, in my view, para. 97 is devoid of content and context. The fear of reprisal against a common-law spouse is not an allegation of a violation of the Code that is capable of being raised, in the absence of some specific reprisal action being taken. Accordingly, para. 97 also is struck from the Application.

Should the Application as a whole be dismissed as an abuse of process?

79The respondent submits that, when one considers this matter in totality, to allow this Application to proceed at all would be an abuse of process. In support of this submission, the respondent asked me to consider the following factors.

80First, the respondent asks me to note that the applicant disclosed the entirety of the Minutes of Settlement notwithstanding his confidentiality obligations. I have addressed this above. As discussed, virtually all of the provisions of the Minutes of Settlement are either alleged to have been contravened by the respondent or are otherwise relevant to the issues addressed in this Interim Decision. The only two provisions which are not relevant to this proceeding and which have now been struck are the provisions relating to monetary payments. In this regard, I note the Tribunal’s requirement pursuant to Rule 24.2 that a contravention of settlement application must include a copy of the settlement alleged to have been contravened. While I appreciate that the instant Application was filed as an application under s. 34 of the Code, I already have noted that the allegations of contraventions of the settlement agreement more properly should have been filed as a contravention of settlement application pursuant to s. 45.9(3) of the Code, and have relieved against that technical deficiency. If the alleged contraventions of settlement had been filed by the applicant, as they properly should have been, as part of a contravention of settlement application, then the applicant would have been required by Rule 24.2 to attach the entirety of the Minutes of Settlement in any event. In these circumstances, I fail to see how putting this same information into the Application can amount to an abuse of process.

81Second, the respondent submits that the applicant breached mediation privilege by repeating statements made at mediation in the Application. As discussed above, what the applicant did is include in the Application an allegation that there was an oral representation made by the respondent at mediation that he believed to be enforceable. I have ruled against the applicant on this point. However, in my view, simply raising this allegation in the Application cannot amount to an abuse of process.

82Third, the respondent states that the applicant is seeking to re-negotiate the terms of May 28, 2013 settlement agreement and characterizes this as an act of bad faith. With respect, I do not agree that this is what the applicant is doing. The applicant has raised a series of allegations that in his view were not precluded by the terms of the settlement agreement. Some of these issues were conceded by the applicant at the preliminary hearing to be barred by the settlement, and others I have held are barred. But a number of issues that the respondent contended were barred by the settlement agreement and represented an attempt to re-negotiate the terms of that agreement have been found by me not to have been barred, albeit two of these allegations were dismissed for delay and another as having no reasonable prospect of success. In my view, there is simply an insufficient basis to suggest that the Application when viewed as a whole represents an improper attempt by the applicant to re-negotiate the terms of the settlement agreement.

83Fourth, the respondent takes umbrage to what are characterized as frivolous allegations raised in the Application against a high-ranking supervisory officer (paras. 89 to 95 of the Application), and in particular takes umbrage at these allegations having been raised at a time when this officer had announced interest in pursuing the position of Chief of Police. The respondent submits that this represents an attempt by the applicant to get into this proceeding allegations that are not linked to the Code and should never have been included, in an attempt to embarrass and undermine this supervisory officer. The problem with this submission, in my view, is that there is simply no evidentiary basis before me to support that these paragraphs were included in the Application for the purpose of undermining and embarrassing this individual and attempting to thwart his prospect of becoming Chief of Police. This is pure speculation.

84Moreover, as discussed above, it is not uncommon for an applicant to include in a human rights application things that she or he regards as evidencing differential or preferential treatment. While I have held that there is insufficient similarity between the remaining allegations raised in this proceeding with the circumstances and allegations relating to this senior supervisory officer for these paragraphs to be relevant to this proceeding, I do not see any proper basis upon which I can regard the mere inclusion of these allegations of preferential treatment as rising to the level of an abuse of process, such that the Application as a whole should be dismissed.

85Fifth, the respondent raises the fact that the applicant named nine personal respondents, some of whom are not even mentioned in the Application. The Tribunal has been very clear for the past several years that it actively discourages the unnecessary naming of personal respondents. However, despite this, some applicants continue to identify numerous personal respondents in their human rights applications. While perhaps misguided, it is not my view that this amounts to an abuse of process. Further, while this was done rather belatedly, I note that the applicant withdrew the Application at the preliminary hearing as against all personal respondents save one, who was removed by virtue of this Interim Decision.

86Sixth, the respondent points to the fact that the Application claims $1 million in damages. I respectfully observe that, if that was a basis to find an abuse of process, then quite a large number of human rights applications would be dismissed due to the large sums sought as damages.

87Seventh, the respondent submits that the allegations are wholly and inadequately particularized. I disagree. The only issue that I have found to be inadequately particularized is issue 11, and I have ordered the applicant to provide the particulars in support of that allegation. Otherwise, in my view, the remaining issues raised in this proceeding are sufficiently particularized to enable the respondent to respond.

88As urged by the respondent, I have considered all of these various factors cumulatively, and I respectfully do not agree that they can reasonably lead me to conclude that the whole Application is vexatious in nature and that to allow it to go forward would be an abuse of process. There were disagreements between the parties as to what allegations were barred by the settlement agreement. In some cases, I found in the respondent’s favour; in other cases, I found in the applicant’s favour. Other allegations were dismissed for delay or as having no reasonable prospect of success. But the remaining allegations are not barred by the settlement agreement, are timely, and have not been dismissed as having no reasonable prospect of success. Whether or not the applicant ultimately is able to prove any violation of his Code rights or the terms of the Minutes of Settlement in relation to the remaining issues is a matter for determination at the hearing on the merits. But I see nothing here that rises to the level of abuse of process sufficient to justify the dismissal of the Application as a whole.

NEXT STEPS

89The next step in this matter is for the applicant to provide particulars regarding issue 11, which he is ordered to do within 14 calendar days of the date of this Interim Decision.

90Within a further 35 calendar days, the respondent shall serve and file its Response (Form 2) on the merits of the remaining issues. For ease of reference, these are (with reference to the remaining paras. of the Application and the issues as identified in para. 6 above):

1. That the respondent violated para. 8 of the Minutes of Settlement on the basis that the training required by that settlement provision has not occurred (para. 5);

2. That the respondent violated para. 10 of the Minutes of Settlement on the basis that the applicant has not been provided with mentorship and has not been given an opportunity to attend the OPC course referenced in that settlement provision (para. 7);

3. That during the period from May 2013 to January 2014, the respondent failed to prepare a proper return to work plan to re-integrate the applicant into the workplace. This is alleged to be discrimination because of race, colour, ancestry, disability and reprisal contrary to the Code and also reprisal in violation of para. 9 of the Minutes of Settlement (paras. 29 to 47, 49 to 56, and 70 and identified as issue 5 above);

4. That the applicant has not been reimbursed for 1459 hours of sick time attributable to the period from February to December 2013, which is alleged to be discrimination because of race, colour, ancestry, disability and reprisal (paras. 57, 68 and 69 and identified as issue 6 above);

5. That the applicant was excluded from a census survey conducted by the respondent in March 2014, which is alleged to be reprisal contrary to the Code and the Minutes of Settlement (paras. 85 to 88 and identified as issue 10 above); and

6. That the applicant has been the subject of rumours regarding the terms of the settlement agreement he reached with the respondent and who he did not want to work with, and that no steps have been taken by the respondent to quell these rumours, in contrast to steps taken to quell rumours about a personal relationship involving a senior White officer. This is alleged to be discrimination because of race, colour and ancestry as well as reprisal contrary to the Code and the Minutes of Settlement (para. 96 and identified as issue 11 above).

91At the same time, the respondent also shall serve and file its Response to Request for Order (Form 11) in response to the applicant’s Request for Order seeking to amend the Application dated February 8, 2016.

92Within a further 14 calendar days, the applicant shall serve and file his Reply (Form 3) and any written submissions he may have in reply to the respondent’s submissions on his amendment request.

93I note that the applicant in his Application has indicated an interest in proceeding to mediation in this matter. If the respondent is also interested in mediation, it shall so indicate in its Response, and the matter will proceed to be scheduled for mediation. Otherwise, the matter will proceed to be scheduled for a hearing.

ORDER

94For all of the foregoing reasons, I hereby make the following order:

1. The WRPA is granted intervenor status in this proceeding, with the scope of its participation to be related to issues raised in this proceeding that affect the interests of the Association, the collective agreement, or its members;

2. All personal respondents have been removed as parties to this proceeding, and the title of proceeding has been amended accordingly;

3. The Application is amended to include the ground of disability, particularly in relation to Issues 5 and 6 as identified at para. 6 of this Interim Decision

4. Issues 7 and 13 as identified at para. 6 of this Interim Decision are withdrawn by the applicant and paras. 58, 59, 61, 84 and 116 of Schedule A to the Application are hereby struck;

5. Issues 8 and 9 as identified at para. 6 of this Interim Decision are dismissed as being barred by the terms of the Minutes of Settlement and Release dated May 28, 2013 and paras. 60 and 77 to 83 of Schedule A to the Application are hereby struck;

6. Issues 3 and 12 as identified at para. 6 of this Interim Decision are dismissed for delay and paras. 9 to 26, 48, 62 to 67, and 98 to 115 of Schedule A to the Application are hereby struck;

7. Issue 4 as identified at para. 6 of this Interim Decision is dismissed as having no reasonable prospect of success and paras. 27 and 28 (in part) of Schedule A to the Application are hereby struck;

8. Paras. 4(iii) and (iv), 8, 71, 72 (in part), 73 to 76, 89 to 95 and 97 of Schedule A to the Application are hereby struck on the basis of relevance and/or inadmissibility;

9. The parties to this proceeding shall proceed in accordance with the following schedule:

i. Within 14 calendar days of the date of this Interim Decision, the applicant shall serve and file particulars regarding issue 11,

ii. Within a further 35 calendar days, the respondent shall serve and file its Response (Form 2) on the merits of the remaining issues as well as its Response to Request for Order (Form 11) in response to the applicant’s Request for Order dated February 8, 2016, and

iii. Within a further 14 calendar days, the applicant shall serve and file his Reply (Form 3) and any written submissions he may have in reply to the respondent’s submissions on his amendment request.