Barton v. Regional Municipality of Halton Police Services Board, 2017 HRTO 1238

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leon Barton

Applicant

-and-

Regional Municipality of Halton Police Services Board and Bill Marshall

Respondents

A N D B E T W E E N:

James Barton

Applicant

-and-

Regional Municipality of Halton Police Services Board, Bill Marshall, Office of the Independent Police Review Director and Gerry McNeilly

Respondents

A N D B E T W E E N:

Leon Barton

Applicant

-and-

Office of the Independent Police Review Director and Gerry McNeilly

Respondents

DECISION

Adjudicator: Naomi Overend Date: September 20, 2017 Citation: 2017 HRTO 1238 Indexed as: Barton v. Regional Municipality of Halton Police Services Board

WRITTEN SUBMISSIONS

James Barton, Applicant

Self-represented

Leon Barton, Applicant

Self-represented

Regional Municipality of Halton Police Services Board and Bill Marshall, Respondents

Adam Guy, Counsel

Office of the Independent Police Review Director and Gerry McNeilly, Respondents

Lynette D’Souza, Counsel

Introduction

1This Interim Decision addresses whether the Tribunal has jurisdiction over the allegations against the Office of the Independent Police Review Director (“OIPRD”) and Gerry McNeilly, respondents named in Applications 2015-20216-I and 2015-201217-I.

2These two Applications were filed by Leon Barton and James Barton, who are spouses. The Application filed by James Barton (2015-201216-I) names two other respondents, the Regional Municipality of Halton Police Services Board (“Halton”) and Bill Marshall. Leon Barton filed an earlier Application against Halton and Bill Marshall (2014-18827-I).

3Collectively, the Applications make allegations about the manner in which a search warrant was carried out by Halton and Bill Marshall, a Detective with Halton. In addition, they make further allegations about the subsequent findings made by OIPRD and Gerry McNeilly, the Independent Police Review Director (the “Director”), with respect to this incident. The Applications allege discrimination with respect to services because of reprisal, marital status, family status and/or disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

Background

4The applicant, James Barton, filed an earlier complaint with the OIPRD in relation to an incident involving the Halton Police (the “initial complaint”). It is not necessary to detail this incident with Halton, or the findings of the OIPRD with respect to it, except to note that Det. Marshall was assigned to conduct the investigation of the initial complaint, and attended at the applicants’ residence on August 31, 2014. Information learned at this time led Halton and Det. Marshall to obtain a warrant to search the applicants’ residence.

5When this search warrant was executed on September 3, 2014, Leon Barton was present, but James Barton was not. Ms. Barton alleges that she was denied access to her service dog during the period the police attended at her residence, and that the respondents threatened to “remove” her dogs if she did not put them outside.

6James Barton made a second complaint to the OIPRD on September 12, 2014 about the September 3rd incident. The OIPRD states this complaint included allegations of misconduct against two Halton police officers (one of whom was Det. Marshall) concerning the handling of the applicants’ dogs, including Ms. Barton’s service dog. On January 12, 2015, the OIPRD released its Investigative Report (which addressed both the initial complaint and the second complaint filed by James Barton) in which the Director concluded there was insufficient evidence to substantiate the allegations of misconduct.

7On February 15, 2015, following the release of the Investigative Report, James Barton filed an Application, (2015-20216-I), in which he takes issue with the finding by the Director that the actions of Halton and Det. Marshall were “reasonable.” In his narrative, the applicant includes the following observations/allegations:

DURING THE OIPRD INVESTIGATION DE MARSHALL STATED “THE FACT THE COMPLAINT AND HIS WIFE SUFFER FROM PTSD” AS JUSTIFICATION FOR THE WARRANT. I BELIEVE THIS STATEMENT TO BE DISCRIMINATORY.

IN HINDSIGHT I BELIEVE THE DISMISSIVE AND UNPROFESSIONAL ATTITUDE TOWARDS OUR COMPLAINTS IN THE PAST TO BE BASED ON DISCRIMINATION.

THE DIRECTOR’S COMPLANCENCY WITH THE COMMENTS, AND HUMAN RIGHTS ABUSES COMMITTED BY DETECTIVE MARSHALL, AND ADMITTED! IS DISCRIMINATION.

8Leon Barton also filed an Application on February 15, 2015 (2016-20217-I) against OIPRD and Gerry McNeilly. Her allegation against them is as follows:

On page 27 [of the Investigative Report] Gerry McNeilly states it was not unreasonable. These are clear violations of my rights. On pg. 18 paragraph 4 Marshall states the dogs were in the house, yet on pg. 19 paragraph 4 he states that they weren’t.

9On July 6, 2015, OIPRD and Gerry McNeilly filed their Response to each of the two Applications. In these Responses, they submit that the Applications should be dismissed on the basis that: (1) they amount to a collateral attack on the Director’s decision in the Investigative Report; and (2) the applicants allege no facts in support of their bald allegation of discrimination. The respondents also state in their Response to Leon Barton’s Application (2016-20217-I) that they had not provided a service to her since it was her husband who had filed the complaints to the OIPRD.

10The applicants filed their respective Replies on September 8, 2015. James Barton’s Reply does not address the OIPRD and Gerry McNeilly, and Leon Barton’s Reply merely reiterates that she is “accusing” Gerry McNeilly of discrimination.

11On December 29, 2015, Leon Barton filed a further Reply, dated December 20, 2015 (the “second Reply”), in which she alleges, for the first time, the following:

During the investigation interview, I asked for and was not allowed the following accomidations [sic]

1. female investigator

2. door left open

3. support person in room with me

4. someone trained to handle my condition (eg coast)

12On January 29, 2016, OIPRD and Gerry McNeilly brought a number of Requests for Orders During Proceeding (Form 10s) seeking a variety of relief, including dismissal of the two Applications against them. They also sought to strike the second Reply as improper. They note that the interview referenced in it took place on October 14, 2014, more than one year earlier. The applicants do not dispute that the interview took place on this date.

13These Requests for Orders (and an additional Request made by the applicants) were scheduled to be addressed at an in-person preliminary hearing on May 16, 2016. The hearing was adjourned shortly after it commenced because Leon Barton was unable to continue for health-related reasons.

14I subsequently advised the parties in a Case Assessment Direction that I would deal with the jurisdiction of the Tribunal to adjudicate the allegations against OIPRD and Gerry McNeilly in writing. I specifically directed the parties to address the issue of adjudicative immunity in their written submissions. I also directed them to address the issue of delay concerning the December 2015 allegations raised in the second Reply.

Decision and Analysis

Adjudicative Immunity

15In Babic v. Tim Hortons Ltd., 2015 HRTO 146 (“Babic”) at para. 3-6, the Tribunal notes:

The applicant states that the OIPRD made a discriminatory decision when it rejected many complaints she made about the police in Hamilton.

The Tribunal sent the applicant a Notice of Intent to Dismiss (“NOID”). The NOID directs her to make submissions on the question of whether the Application should be dismissed as against the OIPRD because its decisions are adjudicative in nature. The reason the Tribunal issued the NOID is because it does not have jurisdiction to review decisions that are protected by the principle of adjudicative immunity.

The applicant has not made any arguments about the issue which the Tribunal asked her to address, which is whether the Tribunal has jurisdiction to deal with OIPRD’s rejection of her complaints. In the absence of any argument to the contrary, I conclude that decisions of OIPRD are protected by the doctrine of adjudicative immunity. This is because the OIPRD makes its decisions in accordance with an adjudicative process. As a result the Tribunal has no authority to deal with that aspect of this Application. The Application is dismissed as against OIPRD. [Emphasis added.]

16Babic was decided in the absence of submissions from the parties. In particular, the OIPRD was not invited to make submissions, as the Tribunal dismissed the case prior to serving the Application on the respondent.

17In their submissions in this case, OIPRD and Gerry McNeilly point to Part V of the Police Services Act, RSO 1990 c. P. 15 (“PSA”), (in particular, ss. 59-61, 68 and 71), as well as the decision of the Court of Appeal in Endicott v. The Office of the Independent Police Review Director, 2014 ONCA 363, as authority for the proposition that the Director is a statutory decision maker.

18Moreover, 26.1(11) of the PSA provides that all reports issued by the Director are privileged:

A document prepared in the course of his or duties under this Act by the Independent Police Review Director, an employee in the office of the Independent Police Review Director, an investigator appointed under subsection 26.5 (1) or a person exercising powers or performing duties at the direction of the Independent Police Review Director is not admissible in a civil proceeding, except at a hearing held under Part V.

19A decision made by the Director, where he has retained the investigation (as he did here), is subject to judicial review, but there is otherwise no right of review of a Director’s decision.

20In light of the above, un-contradicted, submissions that the Director is a statutory decision maker, whose reports are privileged, and whose decisions may only be overturned on judicial review, I find that the conclusions and Investigative Report of OIPRD and Gerry McNeilly are subject to adjudicative immunity: See Taucar v. University of Western Ontario, 2013 HRTO 597 and Symonik v. Children’s Aid Society of Toronto, 2015 HRTO 1163. Accordingly, any allegations concerning these are not within the jurisdiction of this Tribunal to decide.

Delay

21The doctrine of adjudicative immunity covers all allegations relating to the content of the Investigative Report. However, in her second Reply Leon Barton is now alleging that the manner in which the investigation was undertaken was also discriminatory.

22I would note that the applicant has not made a formal request to amend her Application to add these allegations. I agree with the respondents that these are not properly raised for the first time in a Reply. They in no way relate to any allegations made in the original Application or factual responses set out in the Response to Ms. Barton’s Application.

23It appears to be the applicants’ submission that the new allegations arise out of the respondents’ Accommodation Policy, which was attached to the Response. However, the respondents do not rely on this policy in their Response, and only include it because Question 13 in the Form 2 asks all respondents whether they have policies that might relate to the matter and directs them to file any policies identified.

24In any event, whether or not she was aware of the policy, it would be difficult for Ms. Barton to argue that she was unaware of the applicable legal protections in the Code. Both she and her spouse allege that Halton and Det. Marshall failed to accommodate her disability in the execution of the warrant.

25Even if the applicant’s second Reply is treated as a request to amend her Application, I would not allow the request given the untimeliness of the allegations. The interview in question took place on October 14, 2014. The second Reply, in which these allegations are raised for the first time, is dated December 20, 2015 and was received by the Tribunal on December 29, 2015.

26As pointed out by the respondents in their Request to dismiss, s. 34(1) of the Code requires an applicant to file an Application within one year of the last incident of alleged discrimination. These allegations were raised for the first time more than 14 months after the investigation interview on which they are based.

27As noted in s. 34(2) of the Code, the Tribunal may accept an Application if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. To establish that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why she did not pursue her Code rights in a timely manner. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.

28Other than saying they were unware of the respondents’ Accommodation Policy, the applicants have provided no submissions on the issue of good faith, although they were specifically directed to do so. In the absence of an explanation, I cannot find the delay was incurred in good faith. Accordingly, I will give no further consideration to the allegations concerning the October 14, 2014 interview in determining the Tribunal’s jurisdiction over the matters raised by the applicants.

Matters Raised in the Applicants’ Submissions

29The applicants’ August 29, 2016 submissions assert that the PSA requires Gerry McNeilly to report to the Special Investigations Unit injuries Leon Barton states she sustained arising from police visits to her home. There are no dates attached to this allegation, and it is likely out of time. In any event, whether or not this could amount to a violation of the PSA, on the face of the allegation, no Code breach has been alleged.

30Finally, the applicants assert that in obtaining and executing the warrant, Det. Marshall was “acting as an agent of the director.” I disagree. In obtaining and executing the warrant, Det. Marshall was not undertaking duties on behalf of the Director, but rather was doing so in his role as an officer with Halton.

Conclusions

31For the reasons set out above, in determining whether the allegations against OIPRD and Gerry McNeilly are within the Tribunal’s jurisdiction to decide, I am considering only those that are set out in the respective Applications. These allegations concern only the conclusions reached by the Director that the actions of the named police officers did not amount to misconduct. These conclusions are protected by adjudicative immunity. Accordingly, the Tribunal is without jurisdiction to deal with the allegations made by the applicants against OIPRD and Gerry McNeilly.

Order

32With respect to these consolidated Applications, the Tribunal makes the following orders:

a. Application 2015-20217-I, filed by Leon Barton against the Office of the Independent Police Review Director and Gerry McNeilly is dismissed; and

b. The Office of the Independent Police Review Director and Gerry McNeilly are removed as respondents, and the allegations against them dismissed, in Application 2015-20216-I, filed by James Barton. The style of cause will be amended accordingly.