Sandhu v. Regional Municipality of Peel Police Services Board, 2017 HRTO 1221

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Baljiwan Singh Sandhu

Applicant

-and-

Regional Municipality of Peel Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Bruce Best

Date: September 19, 2017

Citation: 2017 HRTO 1221

Indexed as: Sandhu v. Regional Municipality of Peel Police Services Board

APPEARANCES

Baljiwan Singh Sandhu, Applicant

Marshall Swadron, Counsel

Regional Municipality of Peel Police Services Board, Respondent

Glenn Christie, Counsel

Introduction

1In Sandhu v. Regional Municipality of Peel Police Services Board, 2017 HRTO 445, (the “Liability Decision”) I determined that the applicant had established discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin (referred collectively as “race”), contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2As this matter had been bifurcated by Interim Decision 2015 HRTO 1378, only the issue of liability has been addressed, and as such I directed the parties to provide submissions on remedy. They have now done so. The applicant filed a Request to amend both the personal and public interest remedies sought. The respondent takes the position that the request to amend should be refused.

3The applicant’s Request also sought production of a number of documents. The parties have asked that this issue be addressed after the request to amend, as the scope of the production request will largely depend on the issues to be addressed. I agree, and any outstanding production issues will be addressed through a case management conference call.

4A Request to Intervene was also filed by the organization Peel Coalition Against Racialized Discrimination (“P-CARD”) to provide submissions with respect to public interest remedies. The respondent objects to P-CARD being granted intervenor status.

5For the reasons below, the applicant’s request to amend is granted, and the request for P- CARD to intervene is refused.

Request to Amend Remedy

6In the original Application filed in January 2014, the applicant sought a number of remedies based on his position that if he had received a positive recommendation from his superiors, he would have been promoted to Inspector. The remedies sought included an order that he be promoted, and the difference in salary he would have earned had he become an Inspector at the time of the original competition in March 2013. The applicant now seeks to amend the personal remedies being sought on the basis that, since January 2015, he has been on a medical leave of absence, which the applicant claims was also a result of the discriminatory treatment he received.

7The respondent argues that this is not simply a request to amend the remedy, but is in fact a new allegation of discrimination that will require a further determination of liability, further documentary disclosure, and the need to call new evidence, including possibly expert witnesses. It further argues that the allegation is out of time, and that if the applicant wished to amend his remedy based on what occurred in January 2015, he was required to do so within one year of that date.

8The applicant also seeks to expand the public interest remedies beyond those set out in the Application. The respondent argues that, as the issue of systemic discrimination was specifically not argued during the liability hearing, the applicant cannot now pursue broad systemic remedies that do not flow from the specific finding of liability.

9For these reasons, the respondent argues that it will suffer prejudice should the amendments be granted.

Analysis

10The statutory basis for the Tribunal to order remedies is set out in s. 45.2 of the Code, which provides as follows:

(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

11The Tribunal has the discretion to amend an application under Rule 1.7(c) of its Rules of Procedure. The question is whether, in all the circumstances, it would be fair to grant the amendments. The factors generally considered in deciding to exercise this discretion are the nature of the proposed amendments, the reasons for requesting the amendments, the timing of the request to amend, and the prejudice to the respondent. See Odell v. Toronto Transit Commission, 2001 CanLII 26210, and Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

12A decision to grant a request to amend an application is not, of course, a finding that the remedies themselves should be granted. Such a determination may only be made after hearing any evidence on remedy and the full submissions of the parties. As such, my decision to permit the amendments does not mean that I have determined the remedies sought should ultimately be ordered.

Personal Remedies

13I agree with the applicant that the proposed amendments to the personal remedies are not new allegations of discrimination, but are rather claims with respect to the impact on the applicant of the discrimination found in the Liability Decision. For the most part, the amendments sought are to revise the claim in light of what has happened in the more than 3 years since the Application was filed. A claim of ongoing harm after the filing of an application is a valid reason to seek an amendment. See McWilliam v. Toronto Police Services Board, 2017 HRTO 425 (“McWilliam”) at para. 16.

14The amendments primarily relate to a change in the applicant’s circumstances that first became apparent in January 2015. The Request to amend was not filed until May 2017, in accordance with my directions in the Liability Decision. The respondent argues that the request should be refused given that it is more than one year since January 2015. The respondent argues that as an applicant must, under s. 34(1), file an application within one year of the incidents giving rise to a claim, an amendment should similarly not be granted more than one year after the events in question.

15Though I agree that a request to amend an application to include a new allegation of discrimination more than one year after the incident may justifiably be refused on the basis of delay, I am not persuaded that the same approach is appropriate when addressing a request to amend a remedy, particularly where the issue of remedy has effectively been put ‘on hold’ due to the bifurcation of the proceedings.

16As noted in McWilliam at para 13, a request to amend a remedy will generally not change the case a respondent has to meet. The applicant set out his claim respecting impact in some detail in the Application, at paras. 48-59, which included his belief that the impact would be ongoing, specifically noting that he expected to have further claims for damages in the future. The specifics of the proposed amendments are not raising novel or unexpected issues, but rather provide updated particulars of the impact claimed by the applicant.

17As noted, a number of the remedies sought, both in the original Application and in the amendments, are premised on the assumption that, if he had been recommended, the applicant would have been successful in being promoted to Inspector in 2013. The respondent argues that liability was based solely on the finding that discrimination was a factor in his not being recommended, and that I explicitly did not make a determination that the applicant would, if recommended, have been promoted. It argues, therefore, that any remedies based on the assumption that he would have been promoted are outside the jurisdiction of the Tribunal, and that any such remedies should not be considered.

18However, the finding of liability due to discrimination, and the impact of that discrimination on the applicant, are distinct issues. It is well established that the remedial purpose of the Code is to put the applicant in the position he would have been but for the discrimination. I have found that the applicant not being recommended for promotion was discriminatory. As the proceedings were bifurcated, I have not yet heard evidence or submissions on the impact of that discrimination. That is the purpose of the remedy hearing.

19As noted at para. 36 of the Liability Decision, if the applicant had been recommended, he would have been a candidate in the 2013 Inspector competition. A central issue in determining the appropriate remedy will be to determine whether the applicant would in fact have been successful in that competition. The relevant disclosure, evidence and parties’ submissions should address that issue.

20In general, considering the nature of the amendments, the reason for the request to amend, the timing of the request and the prejudice to the respondent, I find it is appropriate to grant the amendments requested.

Public Interest Remedies

21The respondent argues that the applicant should not be permitted to seek systemic remedies in a case where the finding of liability was not based on any evidence of systemic discrimination. Though I agree that the scope of any remedies ordered must be tied to the finding of liability, it is also clear from the wording of s. 45.2 that public interest remedies are, by their nature, designed to go beyond addressing any wrong done to the individual applicant. Public interest remedies may be ordered to ensure similar violations do not occur in the future. Even where based on a finding that one individual was subject to discrimination, public interest remedies will be broader in nature. See McWilliam, at paras. 24-27.

22Public interest remedies must nonetheless not be overreaching, and must be tied to the findings of the Tribunal. See Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 (Div. Ct.), (“Christian Horizons”), at paras. 114-121. In the present case, this means any public interest remedy ordered must be related to a finding in the Liability Decision, and must be designed to prevent similar treatment in the future.

23Whether the public interest remedies sought by the applicant are appropriate based on my earlier findings is the issue to determine during at the remedy hearing. The remedies as framed do not appear to be clearly outside the scope of what could properly be ordered. As such, I am prepared to grant the applicant’s request to amend the public interest remedies sought. A decision on what remedies are appropriate will only be made after hearing the parties’ full submissions and, if appropriate, evidence on the issue of remedy, including whether the public interest remedies sought will promote future compliance with the Code.

Request to Intervene

24Rule 11 of the Tribunal’s Rules of Procedure provides:

11.1 The Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

Intervention by a Person or Organization other than the Commission

11.2 A request to intervene by a person or organization, other than a request by the Commission, must be made in Form 5, Request to Intervene, and must be delivered to all parties and any affected persons or organizations identified in the Application or the Response and filed with the Tribunal.

11.3 A Request to Intervene must include an answer to each question in Form 5 and must:

a) describe the issue(s) that the person or organization wants to address;

b) explain the proposed intervenor’s interest in the issue(s) and its expertise, if any, regarding the issue(s);

c) set out the proposed intervenor’s position, if any, on each of the issues raised in the Application and the Response; and

d) set out all the material facts upon which the proposed intervenor will rely.

11.4 Where a party wishes to respond to a Request to Intervene, the response must be in Form 11, Response to Request, and must be filed with the Tribunal no later than 21 days after the Request to Intervene was delivered.

11.5 A copy of the Response to Request under Rule 11.4, if any, must be delivered to the proposed intervenor, all other parties and any identified affected persons or organizations and filed with the Tribunal.

25In Carasco v. University of Windsor, 2011 HRTO 630, (“Carasco”), the Tribunal noted that granting a request to intervene is discretionary. In Jeppersen v. Ancaster (Town), [2001] O.H.R.B.I.D. No. 1 (“Jeppersen”), at para. 19, the Board of Inquiry noted:

In my view, the following considerations, while not exhaustive, inform the decision whether intervention should be granted and, if so, on what terms:

(a) whether the intervention will unduly delay or prejudice the determination of rights of the parties to the proceeding;

(b) whether the applicant has a significant interest in the issue on which intervention is sought;

(c) whether the applicant is likely to provide assistance to the Board that will not otherwise be provided.

26P-CARD is a coalition of organizations and community activists in Peel Region, whose work includes addressing systemic racism within the Peel Regional Police Service, and on this basis it argues that it has an interest in the public interest remedies that may be ordered in this case. P-CARD also argues that it has been actively involved in raising issues of discrimination with the respondent over the past three years, and that its members have decades of experience in Human Rights activism and advocacy.

27P-CARD seeks to intervene in the Application to make submissions with respect to the appropriate public interest remedies in this case, based on the findings in the Liability Decision. The public interest remedies it is seeking are largely the same as those sought by the applicant.

28The respondent objects to P-CARD being granted intervenor status on two grounds. First, as noted above, the respondent argues that the public interest remedies sought are overly broad and should not in any case be considered. As P-CARD is only seeking to make submissions on public interest remedies, for the same reasons the respondent objects to the amendments to the public interest remedies sought by the applicant addressed above, it argues that there is no basis for P-CARD to intervene. Second, it argues that P-CARD would not be able to provide any assistance to the Tribunal beyond what could be provided by the parties themselves.

29I agree that the public interest remedies sought should be considered at the remedy hearing. I also do not dispute that P-CARD may have a significant interest in issues involving race and the respondent. However, I do not see that it is necessary for P-CARD to be granted intervenor status in order for me to address the issues. The public interest remedies P-CARD raises can be addressed through the Applicant’s evidence and submissions.

Order and directions

30The Request to amend the Application is granted.

31The Request to Intervene is refused.

32A case management conference call will be scheduled to address any outstanding issues respecting disclosure that the parties are not able to resolve between themselves based on my findings respecting amendments, above. The call will further address the issue of scheduling dates for the hearing of any evidence the parties wish to present with respect to remedy.