Aiken and Temidire v. Ottawa Police Services Board, 2008 HRTO 36

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chad Aiken Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Ottawa Police Services Board, David Turnbull, Jerome Belanger, Marie-Josee Seguin and Wayne Hollett Respondents

• and -

Dimeji Temidire Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Ottawa Police Services Board, Scott Fenton and Joseph Droeski Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume Date: June 11, 2008 Citation: 2008 HRTO 36 Indexed as: Aiken and Temidire v. Ottawa Police Services Board

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca

APPEARANCES

Chad Aiken, Complainant ) Richard Miller, Counsel Dimeji Temidire, Complainant ) Taiwo Olalere, Counsel Ontario Human Rights Commission ) Anthony Griffin and Raj Dhir, Counsel Ottawa Police Services Board, Respondent ) Leanne N. Fisher, Counsel David Turnbull, Jerome Belanger, Marie-Jose Seguin and Wayne Hollet, Personal Respondents ) Steven Welchner, Counsel Scott Fenton and Joseph Droeski, Personal Respondents ) Steven Welchner, Counsel

Introduction

1This Interim Decision addresses the request by the Ottawa Police Services Board (the "OPSB") for an order that matters HR 1282-07 (the "Aiken complaint") and HR 1283-07 (the "Temidire complaint") be treated as separate matters before the Tribunal and be dealt with and heard separately by the Tribunal.

BACKGROUND

2The Aiken complaint (as amended) is dated February 6, 2007 and alleges that the complainant experienced discrimination on the basis of colour, ethnic origin, race and age in the provision of services pursuant to sections 1 and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Mr. Aiken alleges that he was treated inappropriately by four members of the Ottawa police force because he is a young African Canadian man who was driving a Mercedes Benz with four other racialized youths as passengers.

3The Temedire complaint is dated August 30, 2007 and alleges that the complainant experienced discrimination on the basis of colour, ethnic origin and race in the provision of services pursuant to sections 1 and 9 of the Code. Mr. Temedire alleges that he was treated inappropriately in two encounters with members of the Ottawa police force because he is a young black man who was driving a BMW.

4When the Commission referred the subject-matter of the two complaints to the Tribunal it also exercised its discretion to combine the complaints pursuant to section 32(3) of the Code and requested that one Tribunal be appointed to hear both complaints.

Positions of the Parties

5The OPSB and the six individual officers, four of whom are named in one complaint and two of whom are named in the other, take the position that the cases should be heard separately.

6The Commission takes the position that the complaints were consolidated by a decision pursuant to section 32(3) of the Code. The Commission argues that the Tribunal does not exercise supervisory authority over the Commission and to sever the cases at this stage would be tantamount to a review of the Commission's decision to consolidate them. The Commission's position is that they should not be severed unless the respondents can establish that it would constitute an abuse of the Tribunal's process to hear them together. The complainants support the Commission's position.

DISCUSSION AND ANALYSIS

Section 32(3)

7It is well settled, and the parties agree, that the Tribunal does not have authority to review the decision of the Commission to consolidate the cases. The Commission exercised its authority to consolidate the cases at the point at which the subject-matter of the cases were referred to Tribunal. The relevant text of the referral letter reads as follows:

The Ontario Human Rights Commission has decided, pursuant to section 36(1) of the Ontario Human Rights Code, to refer the subject matter of the above-noted complaints to the Human Rights Tribunal of Ontario so that the Tribunal may hold a hearing on the merits of the cases.

In requesting that one Tribunal be appointed to hear these complaints, the Commission is exercising its discretion to combine complaints, pursuant to s. 32(3) of the Code…

8In my view the decision of the Commission is not binding on the Tribunal. Section 32(3) gives the Commission the power to combine complaints when certain conditions exist and empowers the Commission to deal with complaints "in the same proceeding." These words cannot be read to extend the Commission's authority to bind the Tribunal into conducting one proceeding. However, in deciding the respondent's request I have not ignored the Commission's decision to consolidate. The question in my mind is not whether two separate complaints should be joined, but whether two complaints that were joined by the Commission into one proceeding and referred together to the Tribunal, should continue to be heard together.

9The Tribunal adopted new Rules of Practice effective January 31, 2008. Rule 14 explicitly sets out the power to consolidate or hear cases together and the power to direct that cases be heard separately.

10The Commission and the Tribunal each have a discrete authority for determining whether or not to consolidate complaints. The Commission has a unique public interest role in human rights complaints and is empowered to join complaints at any stage in the Commission process where the circumstances meet the statutory requirements. However, in this case, where all of the respondents object to proceeding with one hearing, the Tribunal is obligated to hear the submissions of the parties and make its own independent determination as to whether it is appropriate to hear the cases together.

11In addition to the parties submissions, the cases cited therein, and the January, 2008 Rules, I have considered the Tribunal's recent decision in Persaud v. Toronto District School Board 2008 HRTO 25 ("Persaud") and the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway 002 CanLII 45928 ("Lattey") relied on in Persaud. In determining a similar issue, the Tribunal in Lattey, took into consideration the public interest in avoiding a multiplicity of proceedings, potential prejudice to the respondents and whether there were common issues of fact or law.

12There are six individually named officers who will be required to participate in a larger inquiry if the complaints are heard together. I accept that this will create some hardship for them. However, the OPSB is named in both complaints and has indicated in its materials that it intends, at this stage, to introduce similar policy based evidence in both complaints.

13I am also convinced that the facts, issues and policies engaged by the allegations are sufficiently similar to give rise to an order that they be heard together. The respondent agrees that the complaints have the following commonalities, although I recognize that they take the position that those commonalities are insufficient to hear the complaints together: the officers in both matters are caucasian; the complainants have advanced the same ground of discrimination in both matters; both complainants were subjected to traffic stops, albeit by different officers for different reasons. In addition, the Commission adds that the two complaints were filed by young black men who were driving expensive cars.

14Without commenting in any way on the veracity of the allegations, I agree with the Commission that the Tribunal will be in a better position to assess the systemic implications of the complaints and order a remedy that will effectively address that dimension, if the cases are heard together and if the allegations are proven.

ORDER

15For all of the foregoing reasons, the Tribunal makes the following Order:

a. The complaints are directed to be heard together.