Navigating the Ontario Human Rights Tribunal
The Tribunal released at least 26 decisions pertaining to police service respondents in 2014 alone, In particular, police services are seeing a growth in complaints from their own members, both uniform and civilian. This article will provide a brief review of the current landscape for police services with respect to preventative measures that can be adopted, as well as guidance for navigating Tribunal procedures. We will present a number of questions that a police service may face with respect to human rights applications, along with brief answers reviewing important steps a service can take.
What preventative measures can a service use?
Training of all members of a service with respect i.o human rights obligations remains the best preventative tool available to a service. A service must recognize and respect the diversity of the public and of the workplace. Every member of the service who interacts with the public must be trained to treat all individuals in a non-discriminatory and respectful fashion. Similarly, all members must he trained to treat others in the workplace in a non-discriminatory fashion and to avoid harassment of fellow members.
What measures are required to deal with employment complaints?
With respect to complaints of harassment or discrimination in the workplace, services should ensure that internal complaint mechanisms are clearly set out in policies that are widely communicated. Where allegations arc received, a service should conduct a thorough, fair, unbiased investigation into the matter. The complainantshould be kept apprised of the progress of the investigation. Where an investigation reveals potential misconduct by any of the service’s members, it is important that such misconduct he addressed through appropriate disciplinary action pursuant to the Police Services Act (the “PSA”). Where it is ultimately determined that allegations are unsubstantiated, the complainant should be given fulsome particulars as to the outcome of the investigation.
Services also have extensive obligations of accommodation pursuant to section 2 of the Code. Services must co-operate with their association, and their members (both uniform and civilian), to reach effective, appropriate solutions to accommodation requests. Where a service has clearly complied with its procedural duty to accommodate, and has demonstrated a willingness to co-operate in reaching a solution throughout the accommodation process, the service will likely have complied with the Code and may render a Tribunal complaint unnecessary or unsuccessful.
What measures are required to deal with service complaints?
With respect to complaints received from members of die public, any complaints received ought to be taken seriously and treated with the utmost respect. Once again, a service must completely fulfill its duties set out under the PSA, if the complaint discloses possible misconduct. Where a complainant feels that the service has taken him or her seriously, is addressing the issue, and will correct its behaviour moving forward, the complainant may be deterred from pursuing the complaint further.
Despite a service’s best efforts in preventing and responding to complaints, many services will be faced with a formal application to the Tribunal. There are many issues that can arise in the context of an application, and a few of the more common scenarios arc addressed by the following questions.
What should be contained in the service’s response to an application?
Where a police service is served with a Tribunal complaint, it will have 30 days to file a Response. The completion of the Response should follow an investigation by the service, and should set out the factual landscape giving rise to the allegations, as well as the service’s substantive legal response to the allegations. Where there is insufficient time to complete an investigation and effectively complete a Response, the Tribunal will frequently grant brief extensions of time for the filing of the Response. This request can be filed in the form of a letter to the Tribunal, copying all parties.
Upon completion of its investigation, and in preparing its Response, the police service should assess its actions in relation to the allegations and include submissions as to whether any of its actions can be considered “discriminatory” in nature. Discrimination is defined, essentially, as differential treatment on the basis of any of the protected grounds. Accordingly, where there are non-discriminatory reasons for an employer’s actions, those must be set out in detail in the Response. It is important to note that even where there are legitimate business reasons for an employer’s action, where even a portion of the reasoning for an action is based on a protected ground, the action will be denounced as discriminatory.’
In the context of employment, the service’s actions could be based on internal management reasons, or on the service’s unique obligation to protect its members and the public. With respect to its role as a service provider, the action taken will often be based on discretionary, but lawful, exercise of police power.
What happens if an employee brings a Tribunal application and a grievance?
It appears that associations are more frequently employing a two-pronged attack by filing both a grievance and a Tribunal application in relation to the same action. Where this occurs, it may be appropriate to seek a deferral of the Tribunal matter until the grievance has been completed.
As indicated in Melville v. Toronto (City)5, deferrals are aimed at avoiding duplication and stem from the recognition that a variety of tribunals have the jurisdiction to deal with human rights matters. The Tribunal is concerned with unnecessary duplication of resources and the risk of inconsistent findings. The Tribunal explained in Roach v. Pembroke Police Service that the purpose of deferring an application is to avoid duplication, and to avoid die possibility of inconsistent decisions.”
Margaret R. Truesdale is a lawyer in the firm’s Litigation Law Group. She can be reached at email@example.com or 613.566.2820.
Jessica Barrow is a lawyer in our Litigation Law Group. Jessica can be reached at 613.566.2281 or firstname.lastname@example.org.
Lynda A. Bordeleau is a lawyer in our Litigation Law Group. Lynda can be reached at 613.566.2847 email@example.com.