McWilliam v. Toronto Police Services Board, 2016 HRTO 449

Human Rights Tribunal of Ontario

B E T W E E N:

Heather McWilliam Applicant

-and-

Toronto Police Services Board and Angelo Costa Respondents

-and-

Toronto Police Association Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: April 8, 2016 Citation: 2016 HRTO 449 Indexed as: McWilliam v. Toronto Police Services Board

APPEARANCES

Heather McWilliam, Applicant Kate Hughes, Counsel

Toronto Police Services Board and Angelo Costa, Respondents Amandi Esonwanne, Counsel

Toronto Police Association, Intervenor Anne Cumming, Counsel

1This Interim Decision deals with the Requests for Orders During Proceedings (“RFOPs”) filed by the parties. It confirms rulings that I made in my case management conference call with the parties and provides rulings on matters that I took under reserve in the call.

2In her Application, the applicant alleged that the respondents discriminated and reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, she alleged that she was subject to a poisoned work environment, sexual harassment and sexual solicitation or advances. She also alleged that the organizational respondent did not adequately investigate her complaints and subjected her to reprisals for enforcing her rights under the Code. The respondents deny all of the applicant’s allegations.

3Both parties filed RFOPs which I address below. In the interest of providing the parties with a quick decision to enable them to move forward with the overdue production of documents, I provide only brief reasons in this Interim Decision which encapsulate and amplify the reasons already provided in my case management call with the parties.

Respondents' request to dismiss certain allegations as untimely

4The respondents requested that the Tribunal dismiss certain allegations as untimely as they occurred more than a year before the Application was filed and do not amount to a “series of incidents” within the meaning of s. 34 of the Code.

5Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident or the last incident of a “series of incidents”. The Tribunal has found that there must be some thematic connection or nexus between incidents in order for them to be considered a “series of incidents” within the meaning of s. 34(1) of the Code. The Tribunal has found that a break of one year or more between incidents may interrupt or break a “series of incidents”. This analysis applies even when the applicant is alleging poisoned work environment. See, for example, Sutherland v. District School Board Ontario North East, 2010 HRTO 2270 at para. 23.

6In the case management call, I expressed concerns about the prospect of hearing evidence on allegations that may be up to eight years old. However, I denied the respondents’ dismissal request on the basis of my finding that the allegations contained in the Application do amount to a “series of incidents” within the meaning of s. 34(1). In my view, all of the applicant’s allegations are thematically connected as they all relate to alleged sexual harassment or sexual advances and alleged reprisal for filing complaints about this sexual harassment and advances. The longest temporal gap between incidents is unclear but it appears to be approximately one year in length. Given the strong thematic connection between the alleged incidents, I find that this temporal gap does not serve to break the series of incidents in this case.

7For these reasons, I denied the respondents’ request to dismiss the older allegations contained in the Application.

Applicant's Production request

8The applicant requested production of various documents that fell into the following six categories:

a. Materials relating to three internal investigations conducted by the organizational respondent: two investigations conducted by the Professional Services Unit (“PRS”) and one investigation conducted by the Diversity Management Unit (“DMU”);

b. Communications exchanged between staff of 23 division;

c. Certain photos of the applicant;

d. Parade sheets for September 2012;

e. The applicant’s professional standards file; and

f. The applicant’s station file.

9The respondents produced certain materials to the applicant. However, they did not produce all the materials sought by the applicant and this led to the applicant filing her RFOP. The respondents provided the full materials referred to in items (d) and (f) of the previous paragraph so there remains no issue in dispute in relation to them.

Findings

10It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding.

Investigation Materials

11I find that the materials relating to the two PRS investigations and the DMU investigation are arguably relevant and must be produced. To date, it appears that the respondents have only produced investigative reports to the applicant and possibly certain other notes. The investigative reports contain a summary of the statements of various witnesses interviewed during the investigation. However, they do not contain the full statements from these witnesses. As well, the Investigator’s Log Notes refer to various materials that were not produced to the applicant, such as various audio recordings of interviews.

12The respondents submitted that the materials from one of the PRS investigations are not arguably relevant because the investigation occurred after the Application was filed. As a result, the respondents argued that the sufficiency of that investigation is not at issue in this case. In my view, the materials from the post-Application investigation are arguably relevant because the respondents specifically refer to the investigation and its findings in their Response. As well, the investigation materials related directly to alleged incidents that form part of the Application. I am aware that the respondents may take the position that they are not liable for any harassment of which they had no knowledge prior to the filing of the Application. However, that is an issue that will be addressed in argument at the hearing.

13The applicant also requested production of the Agreed Statement of Facts and the Notice of Hearing produced as part of a disciplinary tribunal proceeding that occurred pursuant to the Police Services Act in relation to an incident raised in the Application. The respondents opposed this request on the basis that the Toronto Police Services Board is not responsible for the conduct of proceedings by the disciplinary tribunal governed by the Police Services Act.

14In order to rule on this portion of the applicant’s production request, I require more detailed submissions from the parties addressing whether the organizational respondent in this case -- The Toronto Police Services Board -- is responsible for decisions made by the prosecutor before the disciplinary tribunal and of the tribunal itself.

15A document that is arguably relevant and must be produced is any brief or document prepared by the organizational respondent to refer certain charges to the disciplinary tribunal. This document is arguably relevant as it would set out which charges the organizational respondent referred to the disciplinary tribunal and which it did not.

16For the reasons set out above, I find that all of the materials relating to the three investigations above are arguably relevant and must be produced. I note that certain materials already produced by the respondents include portions that have been redacted. Counsel for the respondents indicated that the redacted information does not relate to the applicant but to other files/matters/investigations. In some circumstances, the Tribunal will permit the redaction of private or confidential information relating to third parties that has no relevance to the proceeding before the Tribunal. However, the respondents must ensure that all information pertaining to the applicant and her complaints is produced and that it is not redacted. For example, all witness statements, recordings of witness interviews, notes taken in relation to witness interviews and communications regarding the investigations must be produced in an unredacted form.

Communications by staff at 23 Division

17The applicant requested any and all communications exchanged between staff at 23 Division which may contain information or discussions about the applicant’s allegations of discrimination and/or sexual harassment as well as her medical leaves. I agree with the respondents that this request is overly broad. The applicant has agreed to narrow her request by identifying certain persons whose communications she is seeking.

Particulars relating to photo

18The applicant requested photos of the applicant found on any of the organizational respondent’s computer systems, cell phones, mobile devices or in hard copy. The respondents produced a photo to the applicant with some related information. The applicant requested particulars regarding where the photo was found, whether more than one copy was found and, if so, where.

19I agree that these particulars are arguably relevant and must be produced as they provide the necessary context to the photograph.

Applicant's Professional Standards File

20The applicant requested a full copy of her professional standards file. The respondents provided only a few documents to the applicant in response to this request. The respondents’ counsel indicated that the rest of the materials from the file were not produced as they are allegedly contained in the investigative reports produced by the respondents. In my view, the full professional standards file is arguably relevant and must be produced regardless of any overlap with information contained in the investigative reports or other materials produced by the respondents.

Respondents' request for production and particulars

21The respondents requested that the applicant produce the following documents and particulars:

a. the statement made by the applicant to SIU as well as the complete file relating to the investigation by the Special Investigations Unit (“SIU”);

b. full particulars regarding who the applicant met at the DMU on December 5, 2012, and particulars of any allegations made in regards to other officers and co-workers; and

c. text messages between the applicant and SSGT Timbers within the past year and text messages between the applicant and DSGT Kay after the SIU investigation.

SIU Materials

22I agree with the respondents that at least some of the materials relating to the SIU investigation are arguably relevant. This is the case, in particular, with respect to prior statements made by the applicant and any other witnesses to the SIU. I agree with the respondents that credibility will be a significant issue in this case. Therefore any prior statement by the applicant or other witnesses is at least arguably relevant. However, I find that it is not appropriate for only the applicant’s statement to be produced in isolation without other witness statements also being produced.

23The SIU is an independent third party. If the respondents wish to obtain production of any materials within the possession of the SIU relating to its investigation of SSGT Costa, it must file a third party production request. It must do so by filing a Form 10 and serving it on the SIU. The SIU must then file a Form 11 Response with the Tribunal. Once I have received the respondents’ third party production request and the SIU’s Response, I will issue a decision in relation to the third party production request.

Particulars re. meeting at DMU

24As noted above, the respondents have sought particulars relating to the applicant’s meeting with the DMU. In the teleconference, the applicant’s counsel indicated that the applicant met with a man and a woman at the DMU but that she did not know their names. She also submitted that the organizational respondent should have access to the information being requested. The respondents’ counsel indicated that he would consult with his clients to determine whether they have a record of the applicant’s contact with the DMU.

Text messages

25The applicant’s counsel indicated that the applicant produced all the text messages in her possession. The applicant no longer has copies of the text messages sought by the respondents. The Tribunal can only order the applicant to produce materials in her possession. Since the text messages are no longer in her possession, she cannot produce them.

26The respondents’ counsel submitted that I should order the applicant to make a request of her communications provider to obtain copies of the texts between her and SSGT Timbers which were exchanged in the last year and may still be available through that provider. In the teleconference, I asked the respondents’ counsel why he believes that these texts are arguably relevant. He replied that they may provide some relevant information to the issues in this proceeding even though they were exchanged well after the Application was filed. In the absence of any non-speculative basis for the production of the text messages, I am not persuaded that these text messages are arguably relevant to an issue I have to decide in this case.

27For these reasons, the respondents’ request for the text messages is denied.

Respondents' request for permission to audio-record hearing

28The respondents requested permission to audio-record the hearing in this case. However, they requested that they not be required to produce a transcript of the audio-recording.

29The Tribunal’s Practice Direction on the Recording of Hearings states in its relevant part:

The HRTO may permit a party to have a court reporter record the hearing at the party's expense, upon request and at its discretion. […] When a court reporter is permitted, to ensure that all parties and the tribunal member have the ability to access the transcript, the party that has obtained the court reporter must normally have transcripts produced and provide copies to the Tribunal and the other parties at its own expense. The HRTO may waive this requirement, or make directions about the date the transcript must be produced. The official transcript will normally be considered part of the HRTO's record of proceedings and be included in the record filed in court in respect of any application for judicial review.

30The respondents’ request is granted. The respondents will be permitted to have a court reporter audio-record the hearing at the respondents’ own expense. The respondents must provide a copy of the audio-recordings to the other parties and file a copy with the Tribunal once they receive the audio-recordings. As well, if the respondents obtain transcripts of the audio-recordings, they must provide a copy of them to the other parties and to the Tribunal. Both the audio-recordings and transcripts, if any, may be provided electronically.

Next Steps

31The parties in this case have not participated in a mediation. In the case management call, I recommended to counsel for the parties that they seek instructions from their clients as to whether they are willing to engage in a mediation in this case. Such a mediation could be carried out by myself or by another Vice-chair, depending on the parties’ preferences. If the parties are willing to take part in a mediation, the mediation would take place on the first scheduled hearing day, May 16, 2016. If the mediation were to be unsuccessful, the parties and I would proceed to deal with any remaining case management issues on the afternoon of May 16, 2016. The parties must advise the Tribunal in writing by April 22, 2016 whether they are willing to take part in a mediation.

32If the parties do not agree to mediation, I propose that they save the morning of May 16, 2016 to deal with any remaining case management issues by teleconference. I will issue further directions regarding the use of time on May 16, 2016 once the parties advise whether they are willing to engage in a mediation-adjudication.

Orders and Directions

33For the above reasons, the Tribunal orders as follows:

a. The respondents’ request to dismiss certain allegations as untimely is denied.

b. The applicant’s request for the production of the following materials is granted and the respondents must produce them no later than April 29, 2016:

i. the complete investigation materials relating to the two PRS investigations and the DMU investigation referred to above. This includes the following:

• any and all unredacted notes made during the investigations, all e-mails produced, or documents reviewed as part of these investigation and any recordings and/or transcripts of interviews conducted as part of the investigations;

• unredacted and complete witness statements or all persons interviewed or who provided statements as part of the investigations; and

• any brief or document prepared by the organizational respondent in order to refer certain charges to the disciplinary tribunal constituted under the Police Services Act.

ii. the following particulars relating to the photo produced to the applicant: how many copies were found and where the copy(ies) was/were found.

iii. a copy of the applicant’s full Professional Standards file.

c. The applicant’s request for the production of the Agreed Statement of Facts and Notice of Hearing prepared as part of the disciplinary tribunal proceeding that occurred under the Police Services Act is denied at this time. If the applicant wishes to pursue her request for the Agreed Statement of Facts and the Notice of Hearing, she must file detailed written submissions as to why the organizational respondent in this case, The Toronto Police Services, is responsible for decisions made by the prosecutor before the disciplinary tribunal and of the tribunal itself.

She must file these submissions no later than April 22, 2016. If the applicant does pursue her request for the Agreed Statement of Facts and the Notice of Hearing, the respondents must file their responding submissions within 14 days of receiving the applicant’s written submissions. I will render a decision on this issue in my case management discussions with the parties on May 16, 2016.

The parties should note that it is not necessary to file a hard copy of any submissions they file on this issue. They also are not required to file copies of any case law or statutes cited in their submissions.

d. The respondents’ request that the applicant produce any SIU documents in her possession is denied. If the respondents wish to request any SIU documents they must do so by filing a third party production request. If the respondents choose to do so, they must file their request no later than April 22, 2016. I will render a decision on this issue in my case management discussion with the parties on May 16, 2016.

e. The respondents’ request that the applicant produce the text messages discussed above is denied.

f. The respondents’ request to audio-record the hearing is granted on the terms set out above.