Bartley v. Toronto Police Services Board, 2016 HRTO 911

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paulette Cushnie

Applicant

-and-

Toronto Police Services Board, Rhoel Ong, Tiffany Castell, Jeffrey Gough, Michael Lane, Michael Harnish and Katimarie Metzger

Respondents

A N D B E T W E E N :

Jamaal Cushnie

Applicant

-and-

Toronto Police Services Board, Rhoel Ong, Tiffany Castell, Jeffrey Gough, Michael Lane, Michael Harnish and Katimarie Metzger

Respondents

A N D B E T W E E N :

Perry Newton

Applicant

-and-

Toronto Police Services Board, Rhoel Ong, Tiffany Castell, Jeffrey Gough, Michael Lane, Michael Harnish and Katimarie Metzger

Respondents

A N D B E T W E E N :

Lorenzo Bartley

Applicant

-and-

Toronto Police Services Board, Rhoel Ong, Tiffany Castell, Jeffrey Gough, Michael Lane, Michael Harnish and Katimarie Metzger

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: July 11, 2016

Citation: 2016 HRTO 911

Indexed as: Bartley v. Toronto Police Services Board

1This Interim Decision addresses a Request for Reconsideration from the applicants Jamaal Cushnie and Perry Newton and addresses the status of the Application from Paulette Cushnie.

2These three Applications relate to an incident on May 16, 2010 involving the personal respondents who are police officers. The three above-noted applicants, who are family members, each filed an Application with the Tribunal. Lorenzo Bartley also filed an Application in relation to the same incident.

3All four Applications were deferred by the Tribunal because of related proceedings, including an investigation by the Special Investigation Unit (SIU) and the Office of the Independent Police Review Director (OIPRD), and a criminal trial involving one of the applicants. The Tribunal’s decision to defer the Applications was set out in Interim Decision 2011 HRTO 1701, dated September 16, 2011.

4On July 25, 2012, the Tribunal wrote to the applicants directing them to tell the Tribunal if the proceedings were still on-going. The applicants were told that if they did not contact the Tribunal within 30 days, the Applications could be dismissed as abandoned.

5The Tribunal did not hear from the applicants and on September 26, 2012, the Tribunal issued Decision 2012 HRTO 1842, dismissing the Applications as abandoned.

6On October 24, 2012, the Tribunal received a Request for Reconsideration on behalf of the four applicants. It was submitted by Paula Seymour, a lawyer who advised that her firm was retained to represent the applicants but that the status of the Applications had been overlooked by the firm because of the sudden departure of one of the partners. Counsel also advised that the proceedings to which the Applications had been deferred were continuing so there was no prejudice to any other party as a result of counsel’s error.

7The Request for Reconsideration was granted in Decision 2013 HRTO 63, dated January 11, 2013.

8It appears that the information that the related proceedings were ongoing was not completely correct. The investigation by the SIU was completed in August 2011 and the investigation by the OIPRD was completed in May 2012. However, the criminal matter was still proceeding.

9On April 8, 2014, the Tribunal wrote to the applicants asking for an update on the status of the other proceedings. The Tribunal received a response to this enquiry on June 17, 2014, from Ms. Seymour, who advised:

Thank you. My apologies for the delay. I have been advised that all matters have now closed, except for the ongoing criminal law matter against Mr. Perry Newton. As a result, we are kindly asking for a further abeyance of this matter pending the outcome of the criminal law matter.

10On August 11, 2014, the Tribunal sent a letter to the parties that stated the Applications would remain deferred. There was some confusion in this letter as it indicated that the Applications would be deferred because the SIU and OIRPD matters were still continuing. As noted, those proceedings were over by that time. However, since the criminal matter, to which the Applications had also been deferred, was ongoing, the Applications were correctly still deferred. It appears that the criminal matter was concluded in December 2014.

11On June 1, 2015, the Tribunal asked for another update on the status of other proceedings. On July 2, 2015, Ms. Seymour responded and advised that the criminal matter had been resolved. She also advised that she was no longer representing the applicants.

12On December 31, 2015, the Tribunal issued a Case Assessment Direction. It included the following direction:

In order to ensure the fair, just and expeditious adjudication of these Applications the Tribunal directs the applicants to confirm, within 28 days of the date of this Case Assessment Direction whether or not any of the proceedings described above are ongoing and if they are not ongoing what each applicant’s intentions are with respect to their Application. If any of the applicants above fails to provide the advice required of this Direction their Application may be dismissed as abandoned.

13This Case Assessment Direction was sent to two of the applicants, Paulette Cushnie and Jamaal Cushnie personally using the contact information provided by them. A copy was sent to Lorenzo Bartley c/o Julian Falconer, a lawyer who had been representing him. It does not appear that a copy was sent to Perry Newton, possibly because the Tribunal understood that Mr. Falconer was representing him.

14On December 17, 2015, before the Case Assessment Direction was sent, Jamaal Cushnie had sent an email to the Tribunal to advise that they had been unable to retain Mr. Falconer.

15It therefore appears that the Tribunal’s December 31, 2015 Case Assessment Direction may not have been sent to Mr. Bartley and Mr. Newton.

16However, it appears that Mr. Newton nevertheless was aware of the Case Assessment Direction, because on January 22, 2016, he wrote to the Tribunal. He did not provide any information about the status of any ongoing proceedings, but confirmed that he wanted his Application to proceed. Paulette Cushnie sent an identical letter, also on January 22, 2016.

17It therefore appears that Mr. Newton and Ms. Cushnie responded to the December 31, 2015 Case Assessment Direction and advised they wanted their Applications to continue.

18On January 28, 2016, Ms. Cushnie sent another letter. It referenced all four applicants and stated:

I am writing on behalf of the above applicants.

Further to my letter, dated January 22, 2016, I am writing to advise that the Criminal proceedings have been concluded. In addition, to our knowledge, the SIU investigation as well as the OIPRD proceedings has also been concluded.

It is our intention to continue with the application currently before the Human Rights Tribunal of Ontario. We ask that this matter be re- activated. As I mention in my previous letter, I am seeking advice from the Human Rights Legal Support Centre. As per to your previous letter dated Dec 31/15, I am asking for an advance of 45 days due to the timeline of my scheduled interview on February 17, 2016 with the Human Rights Legal Support Centre. If we are able to retain a lawyer for this matter at that time, I will notify the parties immediately.

19On January 28, 2016, the Registrar sent an email to Ms. Cushnie, copied to Mr. Newton and Mr. Bartley, but not to Jamaal Cushnie, advising that in order to re-activate a deferred Application, the Tribunal requires that a Request for Order During Proceedings be filed.

20On February 1, 2016, the Tribunal received an email from Mr. Bartley, advising that he was “still concerned and attentive” in regard to his Application.

21On March 9, 2016, Ms. Cushnie filed a Request for Order During Proceedings, asking that her Application be re-activated. She did not mention the other Applications.

22The respondents filed a Response to Ms. Cushnie’s Request for Order During Proceedings. The respondents took the position that Ms. Cushnie’s Application should not be reactivated. The Response noted that the proceedings to which the Application had been deferred had been concluded more than a year before the request to re-activate. The Response noted that Rule 14 of the Tribunal’s Rules provides that a request to reactivate a deferred Application should be made within 60 days of the conclusion of the other proceeding.

23On May 27, 2016, the Tribunal issued Decision 2016 HRTO 727. It found that the applicants Perry Newton, Jamall Cushnie and Lorenzo Bartley had not responded to the Tribunal’s directions in the December 31, 2015. Those Applications were dismissed as abandoned.

24Also on May 27, 2016, the Tribunal issued a Case Assessment Direction directing Ms. Cushnie to reply to the respondents’ opposition to her request that the Application be re-activated.

25Ms. Cushnie filed a reply in which she described her experience in trying to obtain information about the processes to which the Applications had been deferred.

26On June 15, 2016, Jamaal Cushnie filed a Request for Order During Proceedings asking that his Application be re-activated. The Tribunal advised that this Request would be treated as a Request for Reconsideration. On June 27, 2016, Mr. Cushnie filed a Request for Reconsideration. Also on June 27, 2016, Mr. Newton filed a Request for Reconsideration.

27Mr. Bartley does not appear to have filed a Request for Reconsideration.

28The respondents have not yet been required to file a Response to the Requests for Reconsideration.

Direction regarding the Requests for Reconsideration

29At this point, there are two issues.

30The first is whether Decision 2016 HRTO 727, which dismissed as abandoned the Applications of Jamaal Cushnie, Perry Newton, and Lorenzo Bartley should be reconsidered.

31The second issue is whether Paulette Cushnie’s Application should be re-activated because of the timeliness of her request that the Application be re-activated. The same issue would arise if Decision 2016 HRTO 727 were reconsidered with respect to any of the other three Applications.

32In my view, the most expeditious approach to these issues is for the Tribunal to schedule a telephone conference call hearing to hear from the parties about the request to reconsider and the timeliness issue.

33The Tribunal will send a copy of this Interim Decision to all four applicants. The applicants must each respond to the Registrar and the respondents’ counsel and confirm that they wish to participate in the telephone conference call. The applicants must do this no later than August 1, 2016. If any of the applicants do not confirm that they wish to participate by August 1, 2016, the Tribunal will take no further action with respect to that applicant's Application.

34After August 1, 2016, the Tribunal will schedule the telephone conference call hearing and send notice to the respondent and the applicants who have confirmed they intend to participate in the conference call.