Heather McWilliam v. Toronto Police Services Board and Angelo Costa, 2017 HRTO 1130

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: August 31, 2017 Citation: 2017 HRTO 1130 Indexed as: McWilliam v. Toronto Police Services Board

APPEARANCES

Heather McWilliam, Applicant Nadia Lambek, Counsel

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

1This Interim Decision addresses the respondents’ request to dismiss certain allegations on the basis that they stand no reasonable prospect of success.

2By Request for Order During Proceedings (“RFOP”) filed on April 21, 2017, the respondents requested that I dismiss certain allegations raised by the applicant on the basis that they have no reasonable prospect of success. By Case Assessment Direction (“CAD”) issued May 26, 2017, I listed the allegations contained in the RFOP that I did not find it appropriate to dismiss at this stage. I also listed the allegations contained in the RFOP for which I would provide the parties an opportunity to make oral submissions.

3In this Interim Decision, I reproduce the reasons already provided in the CAD that I sent to the parties for why I cannot dismiss some of the allegations as having no reasonable prospect of success at this stage. In addition, I provide my findings with respect to the allegations on which I heard oral submissions from the parties in a teleconference on June 28, 2017.

respondents’ request to dismiss

4The respondents requested that I dismiss the following allegations on the basis that they stand no reasonable prospect of success:

a. the Toronto Police Services Board’s (“Board”) response to the complaint the applicant made against SSGT Nolan (“Nolan complaint”) was inappropriate as it relates to:

i. the conduct of Supervisors at 23 Division;

ii. the conduct of the Diversity Management Unit (“DMU”) staff;

iii. the investigation conducted by the Professional Standards Unit (“PRS”); and

iv. the prosecution conducted by the Disciplinary Hearing Office/PRS.

b. the Board engaged in reprisal against the Applicant for making the Nolan complaint through the following actions:

i. the submission of documents to the WSIB;

ii. the issuance of AWOL letters;

iii. alleged inappropriate questions and comments by Medical Advisory Services (“MAS”) nurses;

iv. the alleged discussion of the applicant’s diagnosis by non-MAS employees;

v. the alleged shunning of the applicant by managers and co-workers;

vi. the alleged denial of promotion/job opportunities;

vii. the sending of officers to the applicant’s home; and

viii. the alleged inappropriate disclosure of the applicant’s harassment complaint.

c. the Board, by the action of the MAS staff, failed to accommodate the applicant.

5Both in their RFOP and in their oral submissions, the respondents expressed a desire to whittle down the numerous allegations made in this case to a manageable number. I agree with this desire to streamline this case to only those allegations that stand a reasonable prospect of success under the Code. I agree with the respondents that it is neither just nor fair for them to defend allegations that stand no reasonable prospect of success. However, the difficulty in this case is that I must apply the Tribunal’s well established case law with respect to the test of no reasonable prospect of success. As I set out below, many of the applicant’s allegations cannot be dismissed at this stage because relevant evidence about the reasons for certain actions is in the hands of the respondents.

analysis to be Applied

6As I noted in my CAD, the analysis to be applied to mid-hearing requests to dismiss Applications is the analysis set out in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 (“Pellerin”). In that decision, the Tribunal discussed the need to balance the applicant’s burden of proof with the reality that relevant evidence will frequently be in the possession of a respondent (paras. 11-12):

The burden of proving that a prohibited ground or an intention to reprise was a factor in a respondents’ decision or action lies on an applicant. An applicant must establish a connection between the disadvantage and the ground on a balance of probabilities. However, often only the person who made a decision or took relevant actions will know why they were taken, and relevant evidence will frequently be in the possession of a respondent. Human rights law recognizes that a respondents’ non-discriminatory explanation may in fact be erroneous or a pretext for discrimination.

Reconciling an applicant’s burden of proof with the reality that information from a respondent may be the only way an applicant can prove his or her case is a tension in deciding Code applications. On one hand, because the reasons for a decision are often only known to a respondent, it is important to ensure that the Tribunal process provides a fair and appropriate opportunity for applicants to obtain evidence that would permit them to establish discrimination and that the Tribunal use its expertise to focus on such evidence. It is also important that neither party undergo the cost, inconvenience, and potential stress of Code proceedings where there is no reasonable possibility that allegations of Code violations will succeed, and that public resources be appropriately used in resolving such disputes. Human rights applications should not be an endless search for an unlikely needle in a haystack. [emphasis added]

7I note that, at several points in their submissions, the respondents argued that “on the information currently available to the Tribunal”, or the evidence called to date, certain allegations have no reasonable prospect of success. However, that is not the test; the test is whether there is a reasonable prospect that the applicant will be able to make out her allegations by the end of the case. As the Tribunal noted in Pellerin, the Tribunal must take into account that:

because the reasons for a decision are often only known to a respondent, it is important to ensure that the Tribunal process provides a fair and appropriate opportunity for applicants to obtain evidence that would permit them to establish discrimination. (para. 12)

8That said, the test is no reasonable prospect of success. In Pellerin, the Tribunal also noted that “[h]uman rights applications should not be an endless search for an unlikely needle in a haystack.” Therefore, in assessing whether there is no reasonable prospect of success, it is not enough for an applicant to argue that they may be able to make out their allegations once they are provided an opportunity to cross-examine all of the respondents’ witnesses. If that were the case, the Tribunal would never dismiss applications on the basis that they stand no reasonable prospect of success.

9In my CAD, I made the following six points in response to the parties’ written submissions in relation to the respondents’ request to dismiss.

10First, I noted that I do not completely agree with the respondents’ submission that, even if an applicant has been able to make out a prima facie case of discrimination, an application may still be dismissed as having no reasonable prospect of success if there is a credible, non-discriminatory justification for the impugned conduct. It is correct to say that, even if an applicant makes out a prima facie case of discrimination, an application may still be dismissed if there is a credible, non-discriminatory justification for the impugned conduct. However, this requires a hearing of relevant evidence from the respondent since, if an applicant makes out a prima facie case of discrimination, the evidentiary onus shifts to the respondent to put forward a credible non-discriminatory justification for the impugned conduct that is more probable on the evidence than an inference of discrimination. See Peel Law Association v. Pieters, 2013 ONCA 396, and Shaw v. Phipps, 2010 ONSC 3884, upheld 2012 ONCA 155. In other words, while the overall burden of proof remains on the applicant, the evidentiary onus shifts to the respondent to call evidence to establish a credible non-discriminatory justification for the impugned conduct.

11Second, I agreed with the respondents that this case presents complex questions relating to the interplay between the Code and the Police Services Act (“PSA”). In my view, such complex questions cannot be determined in the absence of full legal submissions from the parties. Therefore, I do not consider it appropriate, at this stage, to dismiss any allegations that involve the complex interplay between the Code and the PSA.

12Third, in my CAD, I took exception to the statement in para. 46 of the respondents’ submissions in which they, once again, pointed out the importance of my being aware of the PSA framework within which the Board operates. I noted in my CAD that I have been nothing if not aware and carefully attuned to the PSA framework in this case. I have issued a number of interim decisions addressing that framework and even raised issues relating to that framework of my own motion (e.g. the statutory privilege issue). Therefore, I noted in my CAD that I did not consider it necessary for the respondents to continue to remind me of the importance of being aware of the PSA framework.

13Fourth, I noted that, in paras. 45 and 56 (b) of their submissions, the respondents appeared to be attempting to reargue an issue that I have already decided in an Interim Decision, 2017 HRTO 78 at paras. 21-24, 26-29.

14Fifth, I stated that I do not completely agree with the applicant that it is not appropriate to parse out single allegations made in the Application to assess whether such individual allegations constitute discriminatory conduct. I do agree that it is important not to look at each harassment allegation in isolation. However, none of the allegations that the respondents have requested to have dismissed were raised as harassment allegations. As well, for some of the allegations (e.g. allegations relating to the DMU), I have heard all of the most relevant evidence. Therefore, I do consider it appropriate to assess certain individual allegations in the respondents’ request to dismiss at this stage of proceeding.

15Finally, I noted in the CAD that I do not agree with the applicant that it is not appropriate to address the respondents’ request to dismiss because the applicant will be permitted to provide reply evidence in relation to issues that that the respondents did not put to her in cross-examination in violation of the rule in Browne v. Dunn. The scope of this reply evidence will be strictly limited to providing the applicant with an opportunity to respond to the issues for which there was a violation of the rule in Browne v. Dunn. This related specifically to questions relating to her relationship with another police officer. I do not see how this evidence would affect the issues raised by the respondents in their request to dismiss.

Allegations that cannot be dismissed at this stage

16As I stated in my CAD, it is not appropriate to dismiss the following allegations as having no reasonable prospect of success at this stage:

a. The allegations in para. 4(a)(i) above. I find that the applicant has provided sufficient evidence to require full responding evidence from the respondents in response to these allegations. In my view, a determination of these allegations requires a full evidentiary record and therefore they cannot be dismissed at this stage;

b. Some of the allegations in para. 4(a)(iii) - specifically, those listed in para. 47(h), (i), (j) of the respondents’ request to dismiss. In my view, I must hear evidence from the respondents and full legal submissions in relation to these allegations. As well, these allegations may relate to the process used during the prosecution and/or investigation of the Nolan complaint. At para. 20 of Interim Decision, 2017 HRTO 78, I held that evidence about the process used by PRS investigators and/or prosecutor is not covered by s. 95 of the PSA insofar as it does not relate to information the investigators and/or prosecutor obtained in the course of their duties under the PSA;

c. The allegations in para. 4(a)(iv). In my view, full legal submissions are required in relation to these allegations as they involve the legally complex interplay between the Code and the PSA;

d. The allegations in para. 4(b)(ii),(iii),(iv); any particularized allegations of shunning in para. 4(v) (e.g. in relation to Detective Fynes); the allegations of denied promotion/job opportunities in para. 4(vi) post-December 5, 2012; and the allegations in para. 4(vii). I find that the applicant has provided sufficient evidence to require full responding evidence from the respondents in response to these allegations. In my view, a determination of these allegations requires a full evidentiary record and therefore they cannot be dismissed at this stage; and

e. The allegations in para. 4(c). I find that the applicant has provided sufficient evidence to require full responding evidence from the respondents in response to these allegations. In my view, a determination of these allegations requires a full evidentiary record and therefore they cannot be dismissed at this stage.

allegations for which I heard oral submissions

17I heard oral submissions from the parties by teleconference on June 28, 2017 in relation to the respondents’ request to dismiss the following allegations:

a. The allegations in para. 4(a)(ii);

b. Some of the allegations in Para. 4(a)(iii) - specifically, those listed in para. 47 (a), (b), (c), (d), (e), (f), (g), (k), (l) of the respondents’ request to dismiss. In my CAD, I noted that the issue for most of these allegations is whether they have a reasonable prospect of success, especially due to the statutory privilege and confidentiality provisions contained in the PSA;

c. The allegations in para. 4(b)(i);

d. Any general allegations of shunning in para. 4(b)(v) that the applicant did not particularize in her testimony; and

e. The allegations of denied promotion/job opportunities in para. 4(vi) pre-December 5, 2012 (i.e. the alleged denial of a two-year position in the Homicide Squad around October 2012).

Findings

Allegations in Para. 4(a)(ii) re. Diversity Management Unit

18The respondents requested that I dismiss as having no reasonable prospect of success any allegations of Code breaches made by the applicant in relation to the conduct of the DMU staff. The conduct of DMU staff that the applicant appeared to allege amounted to a breach of the Code was (i) the fact that the DMU did not conduct a separate human rights investigation alongside the PRS investigation of the Nolan complaint and (ii) certain comments made by the Director of the DMU which the applicant found inappropriate.

19In her submissions in the teleconference, the applicant’s counsel confirmed that the applicant is not alleging that any actions by the DMU breached the Code. However, she stated that the applicant maintains her allegation that the organizational respondent breached the Code by failing to conduct a proper “human rights investigation” of the Nolan complaint.

20Based on the applicant’s submissions in the teleconference, I find that she has not raised any allegations of Code breaches by the DMU or, alternatively, any allegations of Code breaches she did appear to raise against the DMU are withdrawn.

Allegations in Para. 4(a)(iii) re. PRS

21The respondents requested that I dismiss a number of allegations of improper investigation that the applicant made in relation to the PRS’ investigation of the Nolan complaint. I heard submissions from the parties in relation to the respondents’ request to dismiss allegations that the PRS failed to conduct a proper investigation by:

a. asking the applicant to read from her complaint, failing to ask broad questions to unearth additional particulars, and refusing to allow the applicant to discuss other incidents of sexual harassment at 23 Division;

b. failing to investigate issues that came to their attention such as the horse riding comment by PC McLaughlin;

c. failing to interview other women who had recently left the Division that SSGT Nolan supervised to determine whether there had been similar problems;

d. failing to check the video footage from the evening that the applicant alleged that SSGT Nolan blocked her exit from the station;

e. failing to interview Detective Sedore and Detective SGT Stasiak about SSGT Nolan threatening the applicant’s career;

f. delaying the investigation and prosecution of the Nolan complaint;

g. dropping issues contained in the Nolan complaint including allegation about SSGT Nolan making sexual innuendo about the applicant riding a horse; and

h. failing to investigate the applicant’s allegations of poisoned work environment.

22As I noted in my CAD, the issue for most of these allegations is whether they have no reasonable prospect of success due to the statutory privilege and confidentiality provisions contained in the PSA.

23I have made a number of rulings on the interpretation of the PSA statutory privilege and confidentiality provisions in Interim Decisions, 2016 HRTO 934, and 2017 HRTO 78. I will not repeat the analysis contained in those interim decisions in detail here but, instead, will simply summarize my rulings on the interpretation of the relevant PSA provisions.

24In Interim Decision, 2016 HRTO 934, I held that any documents prepared as the result of the Nolan complaint are inadmissible in this proceeding due to the statutory privilege contained in s. 83(8) of the PSA (paras. 29 and 36). That provision provides that any document “prepared as the result of” a complaint made under Part V of the PSA is inadmissible in another civil proceeding.

25Specifically, I held that the following documents requested by the applicant were covered by s. 83(8) and thus inadmissible in this case:

a. Any charge documents that were prepared by PRS following the investigation of the Nolan complaint;

b. The Notice of Hearing;

c. The Agreed Statement of Facts;

d. Joint Submissions on Penalty; and

e. Any other relevant documents submitted by the defence or prosecution as part of the proceeding (paras. 31 and 32).

26By contrast, I found that the actual complaint made by the Chief of Police under s. 76(1) of the PSA was not covered by s. 83(8) as it was not “prepared as a result of” a complaint made under Part V of the PSA (para. 33).

27In Interim Decision, 2017 HRTO 78 at paras. 18-19, I addressed the impact of the PSA’s confidentiality provision (s. 95) on the evidence that was admissible in this proceeding. In that Interim Decision, I held that any “information obtained” by persons engaged in the administration of Part V of the PSA in the course of their duties under that Part was confidential and thus inadmissible in this proceeding. I held that any questioning of the prosecutor and/or investigators in the hearing that seeks to elicit information they obtained in the course of their duties under Part V of the PSA will not be permitted, as this information is confidential under s. 95 and s. 83(7) of the PSA. However, I held that any general evidence relating to the process used during the prosecution and/or investigation of the Nolan complaint is not covered by s. 95 of the PSA insofar as it does not relate to information the prosecutor and/or investigators obtained in the course of their duties under the PSA process (para. 20 of Interim Decision).

28The applicant’s main submission in relation to the allegations listed in para. 21 above was that they all relate to the process used by the PRS in its investigation of the Nolan complaint. In the applicant’s view, these allegations would not require PRS investigators to testify to any “information obtained” by them which is confidential under s. 83(7) of the PSA, nor would a consideration of the allegations require the admission of documents prepared as a result of a complaint which are inadmissible under s. 83(8) of the PSA.

29The respondents’ main reply to the applicant’s submissions was that the parties do not agree on the facts relating to the allegations listed in para. 21 and therefore the allegations could only be determined by reviewing inadmissible evidence. In addition, the respondent argued that, in order to determine whether certain aspects of the PRS’ investigation were reasonable, the Tribunal would have to hear evidence as to why the PRS either took or failed to take certain steps. The respondents submitted that this, too, would require the Tribunal to review evidence that is inadmissible due to the PSA’s privilege and confidentiality provisions.

30The Tribunal’s jurisprudence has established that the employer’s duty to investigate is judged on a standard of reasonableness, not correctness or perfection. See Laskowska v. Marineland of Canada Ltd., 2005 HRTO 30 at para. 60. Although the applicant sought to characterize all of the allegations listed in para. 21 as relating to exclusively to “process” issues, I disagree. Although each of these allegations contains a procedural element, to determine whether it was reasonable for the PRS investigators to proceed as they did, I would have to hear evidence regarding information they obtained in the course of their investigation of the Nolan complaint. As already stated, that information is not admissible in this proceeding due to s. 83(7) of the PSA. For this reason, all of the allegations of improper investigation set out in para. 21 above are dismissed as having no reasonable prospect of success given the limitations on the admissibility of evidence contained in the PSA.

31Specifically, as noted in subpara. 21(a), the applicant alleged that the PRS investigators asked the applicant to read from her complaint, failed to ask broad questions to unearth additional particulars, and refused to allow the applicant to discuss other incidents of sexual harassment at 23 Division. This is disputed by one of the PRS investigators in the witness statement filed on his behalf in this case. In order to make a factual finding in relation to the allegation, I would have to listen to the recordings from the applicant’s interview. However, these recordings are inadmissible under s. 83(7) of the PSA.

32Similarly, in order to determine whether the failure to undertake the actions set out in subparas. 21 (c), (d) and (e) were reasonable or unreasonable, I would require information about the information the applicant shared with the PRS investigators and the other information they gathered in their investigation, all of which is inadmissible in this proceeding.

33With respect to the allegation in subpara. 21(f) of delaying the investigation and prosecution of the Nolan complaint, any determination of whether there was undue delay would require evidence regarding why the investigation and prosecution took as long as it did. This would require hearing evidence about the content of the investigation which is inadmissible before me.

34With respect to the allegation in subparas. 21(g) and (h) that the PRS investigators dropped, or failed to investigate, certain issues in the Nolan complaint, I agree with the respondent that in order to determine this allegation I would need to admit evidence of what the investigators did investigate and also admit into evidence the charging document which I have already found to be inadmissible under s. 83(8) of the PSA.

35This then leaves the allegation in subpara. 21(b) that one of the ways in which the organizational respondent failed to conduct a proper investigation was by failing to investigate issues that came to their attention such as a horse riding comment allegedly made by PC McLaughlin. In the teleconference, the applicant’s counsel stated that the applicant is not in fact alleging that the PRS investigators knew details about the alleged horse riding comment beyond those in the applicant’s formal complaint. According to the applicant’s counsel, the applicant is instead alleging that the investigators “ought to have known” about these additional details since the applicant mentioned them in her interview with the DMU.

36In my view, this allegation should be dismissed as having no reasonable prospect of success. The applicant testified before me that she had decided not to name the maker of the alleged comment in her complaint and she also decided not to provide particulars of the comment in her complaint. In the teleconference, the applicant’s counsel submitted that the PRS investigators should have asked the applicant more pointed questions to unearth more particulars relating to the comment or else they should have accessed the notes from the applicant’s interview with the DMU where the applicant actually named the officer who she alleged made the comment.

37In my view, this allegation stands no reasonable prospect of success. I am not convinced that, based on the evidence that’s admissible in this case, the applicant has any reasonable prospect of establishing that it was unreasonable for the PRS investigators to base themselves on what was actually in the applicant’s complaint. I am not convinced that the applicant has a reasonable prospect of showing that it was unreasonable for them not to probe further to unearth information that the applicant intentionally left out of her complaint.

38For all these reasons, all of the allegations listed in para. 21 relating to the actions or inactions of the PRS must be dismissed as standing no reasonable prospect of success.

Allegations in para. 4(b)(i) re. submission of documents to WSIB

39The respondents requested that I dismiss as having no reasonable prospect of success the applicant’s allegation that the organizational respondent reprised against her by failing to report the sexual harassment by SSGT Nolan to the Workplace Safety and Insurance Board (“WSIB”) and/or failing to cooperate with the WSIB.

40Having heard evidence relating to the filing and processing of the applicant’s WSIB claim, I am satisfied that her allegation that the respondent reprised against her in the way that it dealt with her WSIB has no reasonable prospect of success under the Code. Unlike with respect to some of the other allegations of reprisal that I have refused to dismiss at this stage, I find that the applicant has failed to provide sufficient evidence to require further responding evidence from the respondents in response to her allegations of reprisal with respect to the handling of her WSIB file.

General allegations of shunning in para. 4(b)(v)

41In her Application, the applicant made general allegations of shunning by other officers and supervisors. The only particulars she provided were with respect to alleged shunning by Detective Fynes and that SSGT Payton avoided the applicant after she asked him to remove the photos of her that he had used as a wallpaper on his computer.

42The applicant’s counsel submitted that the applicant could not provide any particulars of the alleged shunning other than what she has already provided. As a result, I find that any general allegations of shunning, other than the ones against Detective Fynes and SSGT Payton are dismissed as having no reasonable prospect of success.

Allegations of denied promotion/job opportunities in para. 4(vi) pre-December 5, 2012

43The applicant alleged that she was reprised against when Superintendent Taverner (on his own or in combination with one or more Staff Sergeants) denied her promotion or job opportunities. Specifically, the applicant alleged the following as opportunities she was denied as a reprisal for filing the Nolan complaint:

a. Inspector Taverner denied the applicant an opportunity to take a two year position in the Homicide unit (in or around October 2012);

b. Inspector Taverner refused to permit her to continue on the Intelligence Services project for a few more weeks (in or around April 2013);

c. Inspector Taverner agreed to only extend her posting to the Drug Squad for a few months (in or around the Spring of 2013); and

d. Inspector Taverner turned down her request for a placement in Homicide (in or around October 2013).

44As noted above, I require a full evidentiary record before I can determine the reprisal allegations listed in subparas. b, c, and d above.

45However, I find that the reprisal allegations relating to the alleged denied opportunity in October 2012 must be dismissed as having no reasonable prospect of success. The term reprisal under the Code has a very particular meaning which is set out in s. 8 of the Code which states as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

46The applicant’s claim is that she was denied employment opportunities because she filed the Nolan complaint. The applicant filed the Nolan complaint in December 2012. Therefore, I find her claim that she was denied the opportunity to take a two year position in the Homicide unit in October 2012 as a reprisal has no reasonable prospect of success. Quite obviously, this denial, if it occurred, took place before the applicant claimed or enforced her Code rights by filing the Nolan complaint.

47I note that, in the teleconference, the applicant’s counsel sought to characterize the alleged denial of the Homicide posting in October 2012 as part of the series of incidents of sexual harassment that the applicant alleged in her Application. However, on the applicant’s own evidence, it was Superintendent Taverner who denied her the posting and she has made no allegations of sexual harassment against Superintendent Taverner. Moreover, I note that the allegation about the denied posting is nowhere to be found in her Application, Reply or witness statement but arose unexpectedly in her testimony. In the circumstances, I find that the allegation of a Code breach in relation to the allegedly denied Homicide posting in October 2012 must be dismissed as having no reasonable prospect of success under the Code.

order

48For the reasons set out above, the following allegations are dismissed on the basis that they have no reasonable prospect of success under the Code:

a. The allegations relating to the alleged actions or inactions of PRS set out in para. 21 above;

b. The allegation that the respondent reprised against the applicant in the way it handled her WSIB file;

c. Any general allegations of shunning other than those that the applicant has particularized in relation to Detective Fynes and SSGT Payton; and

d. The allegation that the applicant was denied the opportunity to take a two year position in the Homicide unit in or around October 2012.

49In addition, any allegations the applicant raised against the DMU are withdrawn.