King v. Toronto Police Services Board, 2008 HRTO 55

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy King

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: August 19, 2008

Citation: 2008 HRTO 55

Indexed as: King v. Toronto Police Services Board

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto, ON M7A 2A3 Phone (416) 314-8419 Fax (416) 314-8743 Toll free 1-866-598-0322 TTY (416) 314-2379 / (toll free) 1-800-424-1168 E-mail HRTO.Registrar-Transition@ontario.ca Website www.hrto.ca

WRITTEN SUBMISSIONS FROM

Ontario Human Rights Commission ) Christine Elwell Toronto Police Services Board ) Rosanne Giulietti William Blair, Chief of Police for the City of Toronto ) Jerome Wiley, Q.C. Kevin Cote, David Lenchuk and Stan Belza ) Joanne Mulcahy

Introduction

1This Interim Decision addresses a request for a stay of one aspect of this Tribunal’s order dated June 4, 2008, that requires the disclosure and production of documents relating to complaints or allegations of sexual orientation discrimination against Constable Kevin Cote, Constable David Lenchuk or Staff Sergeant Stan Belza (collectively the “affected officers”) pending determination of an application for judicial review.

BACKGROUND

2The complaint in this matter was filed on October 12, 2004 and alleges that the complainant experienced discrimination because of sexual orientation in the context of an incident involving the police on or about July 25, 2004, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In its most basic terms, the complaint alleges that Mr. King was subjected to inappropriate comments and conduct because of his perceived sexual orientation when he was stopped and ultimately arrested for the offence of being intoxicated in public contrary to the Liquor Licence Act, R.S.O. 1990, c. L.19 and in relation to how he was treated when he was booked and detained in a holding cell at the police station that night. Constables Cote and Lenchuk were the arresting officers, and Staff Sergeant Belza interacted with the complainant at the station.

3This complaint was referred by the Commission to the Tribunal by letter dated December 18, 2007. While the parties initially expressed interest in mediation, by late February 2008 the prospect of mediation was abandoned. In late March 2008, the Commission filed a request for an order requiring production and disclosure of a lengthy list of items, which included the items being contested in the judicial review application. The parties were invited to, and did, make extensive submissions on this request. While the affected officers are not formally parties to this proceeding, they did file submissions in response to the Commission’s request for production, which were considered by me in making my order.

4On June 4, 2008, I issued an interim decision in this matter granting some of the Commission’s production requests and denying others. One of the production requests that I denied was the Commission’s request for production of the entire personnel files of the affected officers, as I considered this request to be over-broad as extending to documents not relevant to the matters at issue in this case. However, I did order production and disclosure of a limited category of documents pertaining to any allegations of sexual orientation discrimination made against the affected officers (“item 1 of my disclosure order”). This disclosure was to be made by the respondent and/or the Chief of Police by June 30, 2008.

5It is not a matter of record when the affected officers became aware of my order. However, the Notice of Application for Judicial Review in this matter was served on all parties, including the Tribunal, on June 27, 2008. The application was not filed on an urgent basis pursuant to s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, and no request was made either to this Tribunal or to the Divisional Court for a stay of the Tribunal’s order. As of the date of this decision, the application remains unperfected.

6On June 30, 2008, the respondent and the Chief of Police made disclosure pursuant to my order.¹ However, counsel for the Chief of Police noted that the affected officers had filed a judicial review application in respect of item 1 of my disclosure order, and stated: “In my opinion, as the matter will be considered by the Courts, it would be inappropriate for the Chief to respond with respect to item 1 at this time. I respectfully request the Tribunal’s direction in this regard.”

7On July 11, 2008 and again on July 18, 2008, the Tribunal directed the parties' attention to Rule 94 of the Tribunal’s Rules of Practice, which states that an application for judicial review does not operate as a stay of a decision of the Tribunal unless the Tribunal or a court rules otherwise. The Tribunal directed that by July 25, 2008, the respondent and/or the Chief of Police either make a request for a stay of item 1 of my disclosure order or make disclosure in accordance with my order. This resulted in a request for a stay being made by the affected officers. While they are not formally parties to this proceeding, the Tribunal indicated to the parties and to the Chief of Police and the affected officers that it would consider the request, and set a timetable for written submissions.

The Test for a Stay Pending Judicial Review

8The starting point for any analysis of a request for a stay of a Tribunal order pending the determination of a judicial review application is Rule 94 of the Tribunal’s Rules of Practice, which provides in its relevant part:

An application for judicial review under the Judicial Review Procedure Act is not an appeal within the meaning of Rule 93 and does not operate as a stay of a decision of the Tribunal unless the Tribunal or a court rules otherwise.

9As a result, compliance with an order of this Tribunal is required even if an application for judicial review has been filed, and relief from the requirement to comply with a Tribunal order is available only if a stay is sought from and granted by either the Tribunal or the court.

10There appears to be little dispute as to the basic elements of the test for granting a stay pending judicial review. The party seeking the stay is required to:

1. demonstrate that there is a serious issue to be tried;
2. convince the Tribunal that it will suffer irreparable harm if the relief is not granted; and
3. persuade the Tribunal that the balance of convenience favours the granting of the stay;

Brockie v. Brillinger (No. 1) (1999), CHRR Doc. 99-119 (Ont. Bd.Inq.).

1) Is there a serious issue to be tried?

11The first question is whether the affected officers have demonstrated that there is a serious issue to be tried. It has been determined that the threshold for meeting this element of the test is a low one, and that a prolonged examination of the merits is generally neither necessary nor desirable. Once satisfied that the issue raised is neither vexatious nor frivolous, the Tribunal should proceed to consider the second and third elements of the test, even if it is of the opinion that the requestor is unlikely to succeed on judicial review: see RJR -- MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.

12In this case, the Commission has conceded that this aspect of the test has been satisfied. I cannot say that the issue raised on judicial review is either frivolous or vexatious. Accordingly, I will proceed to consider the second and third elements of the test.

2) Will the affected officers suffer irreparable harm?

13The affected officers assert that they will suffer irreparable harm if production is ordered prior to determination of the judicial review application, primarily on the basis that if any relevant records are in existence, their privacy interests in these records will be destroyed and cannot be recovered.

14It is not at all clear to me that the affected officers’ privacy interests would be “destroyed” in an irreparable manner if a stay is denied at this stage of the Tribunal’s proceeding. At this stage of the proceeding, I have only made an order for production and disclosure to the Commission and the complainant of any documents pertaining to other complaints or allegations of sexual orientation discrimination against the affected officers. Any such disclosure or production does not get filed with the Tribunal at this stage, nor does it yet become a part of the Tribunal’s public record of proceedings. Further, as noted at paras. 45 and 52 of my June 4, 2008 decision, the Commission and the complainant are subject to an implied undertaking that all documents or information produced in this proceeding are to be used only for the purpose of this proceeding and not for any other purpose. As a result, any privacy interests of the affected officers in these documents would not be compromised by mere disclosure and production to the Commission and the complainant, unless and until such later stage of this proceeding when any such documents may become part of the Tribunal’s evidentiary record and then only if they are determined to be admissible and relevant to the matters at issue in this proceeding.

15In their main submissions and again in their reply submissions, the affected officers submit that the documents required to be disclosed, if they exist at all, may include complaints or allegations of sexual orientation discrimination that are “unfounded, withdrawn, frivolous, vexatious, made in bad faith, unsubstantiated or false”. That submission entirely begs the question of how the Commission or the complainant would know whether there is merit to any such complaint or allegation in the absence of disclosure, and it also begs the question of who is making the assessment that any such complaint lacks merit. In my view, the proper procedure is for the documents to be disclosed to the Commission and the complainant, and for these parties to be given an opportunity to independently assess whether any complaints or allegations are potentially relevant and admissible as similar fact evidence, which would include an assessment of whether any such complaints or allegations lack merit. If the Commission or the complainant intends to rely upon any specific complaint or allegation as similar fact evidence and if there is a dispute as to the relevance or admissibility of such evidence, then this is a matter that can be raised with the Tribunal and the Tribunal has access to a broad range of measures to ensure that any privacy interests of the affected officers are appropriately protected: see for example the Tribunal’s powers under s. 9 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, as amended.

16There is no doubt that following production and disclosure, the next step in this proceeding would be for the Commission and the complainant to file hearing briefs with the Tribunal. If there are other complaints and allegations of sexual orientation discrimination against any of the affected officers and if either the Commission or the complainant seeks to introduce and rely upon any such evidence for the purpose of the hearing in this matter, then it would be expected that the Commission and the complainant would make reference in their hearing briefs to any such evidence upon which they seek to rely. Once again, however, hearing briefs are only exchanged between the parties, and the Tribunal has access to the same range of measures to appropriately protect any privacy interests.

17Further, at this stage, reliance by the Commission or the complainant upon any other complaint or allegation, either by tendering it as similar fact evidence at the hearing or including it in the hearing briefs, is entirely speculative in nature, as we do not yet know whether any such documents are even in existence let alone whether they would be of such a nature as to be potentially relevant and admissible as evidence in this proceeding. As stated by Justice Chapnik in Elementary Teachers’ Federation of Ontario v. Ontario (Minister of Labour) (2007), 2007 CanLII 35151 (ON SCDC), 229 O.A.C. 54 at para. 13, “the case law requires evidence of irreparable harm to be clear and not speculative in nature”.

18The affected officers further assert that they will suffer irreparable harm if production is ordered on the basis that there would be a risk that the Commission might argue that the judicial review proceedings were moot thereby denying them of a meaningful right to be heard by the court. The affected officers contend that this amounts to irreparable harm on the basis of the decision of Justice Lax in Toronto Police Services Board v. Ontario Human Rights Commission and Fernando (unreported, July 17, 2008) [the “Fernando” decision].

19In the Fernando decision, the Commission had referred a complaint against the Toronto Police Services Board to this Tribunal under section 33(6) of the Code on the basis that the Board had refused to comply with a production request made by the Commission. Before this Tribunal, the Commission was bringing a motion to compel the Board to produce documents. However, the issue raised on the judicial review application as stated in Justice Lax’s reasons related not to any specific aspect of the production request, but to an allegation that the Commission had denied procedural fairness to the Board in exercising its discretion under section 34(1)(d) of the Code to deal with a complaint notwithstanding a more than six month delay. It is in this context that Justice Lax makes the following statement at para. 3: “If the Tribunal is permitted to proceed, the essential issues in the judicial review application would be rendered moot. This amounts to irreparable harm.”

20In the Fernando decision, the issue raised was that this Tribunal lacked jurisdiction as a result of a denial of procedural fairness in the Commission’s process. As a result, Justice Lax determined that it would constitute irreparable harm to allow a Tribunal proceeding to continue where jurisdiction was at issue. This, in my view, differs from the instant case where no issue is raised as to this Tribunal’s jurisdiction to hold a hearing in this matter, but only as to one aspect of a production order.

21Further, I do not agree that at this stage of the proceeding, the denial of a stay would render the judicial review application moot. For example, if it is determined on judicial review that the documents at issue are not even “arguably relevant” to this proceeding or that the affected officers’ privacy interests outweigh the probative value of any such evidence, such a ruling would certainly impact any determination that may need to be made by the Tribunal at the hearing on the merits of this matter as to whether any such evidence should be admitted.

22Finally, the affected officers assert that irreparable harm is caused because the Commission is using my interim decision as a precedent to seek records in other cases pertaining to other officers. The irreparable harm that needs to be established in support of a request for a stay needs to be irreparable harm to the party making the request, and not harm to some other person. On that basis alone, the use of my decision as a precedent cannot amount to irreparable harm for the officers who have made the request for a stay in this specific case. Moreover, the precedent for production and disclosure of records of complaints or allegations beyond those at issue in a specific complaint has existed since this Tribunal’s decision in Nassiah v. Peel Regional Police Services Board (No. 1) (2006) 2006 HRTO 18, 57 CHRR D/38 was rendered over two years ago, so any “harm” caused by reliance on this Tribunal’s precedent has not been caused by my interim decision.

23For all of these reasons, I find that the affected officers have not satisfied the requirement at this stage of the proceeding that they demonstrate that not ordering a stay would cause irreparable harm to them. While I could dispose of the affected officers’ request on this basis alone, I will nonetheless proceed to consider the balance of convenience.

3) Does the balance of convenience favour granting the stay?

24The final element of the test requires me to consider whether the balance of convenience favours granting the stay. In making this determination, I need to consider not only the effect that granting a stay would have on the parties before the Tribunal, but also any impact on the public interest: see RJR -- MacDonald Inc., supra.

25The affected officers and the respondent Board submit that there would be no prejudice to either the Commission or the complainant if a stay of this one aspect of the production order were granted, as the Commission and the complainant could proceed to file their hearing briefs without this material and, if later found entitled to have this material produced, could simply amend their hearing brief to incorporate any relevant material that may be provided.

26While there is no doubt that the Commission and the complainant could proceed to file their hearing briefs without having this material produced and could later amend if necessary, those observations are not sufficient to resolve the balance of convenience in favour of the affected officers. Once hearing briefs have been filed, the next step in the Tribunal’s procedure is to hold a Pre-Hearing Conference Call in order to consider any remaining preliminary matters and to set dates for the hearing on the merits. If a stay were granted, the simple reality is that the hearing could not proceed until the application for judicial review had been determined, as the Commission and the complainant would not be able to fully present their case until it had been determined whether there is relevant and admissible similar fact evidence upon which they may be able to rely. As a result, while technically the stay being sought is of only one portion of the production order, the reality is that the impact of granting the stay would be to quickly bring the entire proceeding to a grinding halt.

27This Tribunal has repeatedly held that a stay is an extraordinary remedy, and that the party requesting it must clearly demonstrate that the balance of convenience overwhelmingly favours the granting of it: see Fiorini v. DiPoce Management Ltd. [1997] O.H.R.B.I.D. No. 4 at para. 16; McKinnon v. Ontario (Ministry of Correctional Services) 2005 HRTO 48 at para. 8; Snow v. Honda of Canada Manufacturing, 2007 HRTO 45 at para. 71.

28Further, in considering the balance of convenience, it must be remembered that administrative tribunals are designed to provide for the expeditious resolution of disputes and that delays or interruptions to that process are to be avoided, and that delays or interruptions occasioned by judicial review proceedings should be avoided except in 'exceptional circumstances': Moffatt v. Oswin and Kinark Child and Family Services, (BI 0056-95) (unreported decision dated December 13, 1995) at para. 12; Iness v. Caroline Co-operative Homes Inc. (No. 3) (2001), CHRR Doc. 01-236 (Ont. Bd.Inq.) at para. 18; McKinnon, supra, at para. 5; Ontario College of Art v. Ontario (Human Rights Commission) (1993) 1993 CanLII 3430 (ON CTGDDC), 11 O.R.(3d) 798 (Div. Ct.); Cybulski v. Ontario (Human Rights Commission) (2005) 2005 CanLII 45194 (ON SCDC), 206 OAC 216 (Div. Ct.).

29In its reply submissions, the respondent asserts that it is not unreasonable to conclude that the judicial review application would be heard before the hearing in this matter takes place, and if not, any required adjournment would be of short duration. The problem with this submission is that no information has been provided by the affected officers as to how long it will take for them to perfect their application or how long afterwards the application may be heard. Further, even if those steps could be completed in a timely manner, this Tribunal has no control over how long it may take for the Divisional Court to render its decision on the application, nor over whether any party may seek leave to appeal the Divisional Court’s decision.

30I agree with the respondent that there is a long history of delay in this matter. The underlying events at issue in this case occurred in 2004, some four years ago. Since this matter was referred to this Tribunal in December 2007, some eight months ago, the parties have been engaged in procedural wrangling to the point where hearing briefs have not yet been filed and no dates for the hearing on the merits have been set. In my view, it is not in the public interest for this proceeding, which already has been far too prolonged, to be extended even further for an indeterminate amount of time pending judicial review of one aspect of my production order.

31For all of these reasons, the affected officers have not satisfied me that the balance of convenience favours granting the stay requested.

32Accordingly, I will require the respondent and/or the Chief of Police to make production and disclosure in compliance with item 1 of my disclosure order by August 26, 2008. The Commission shall deliver its hearing brief within a further two weeks, and the schedule for the remaining parties to deliver their hearing briefs shall be as set out in my order below. The Pre-Hearing Conference Call currently scheduled for September 19, 2008 is hereby re-scheduled to October 15, 2008 at 4:30 p.m.

ORDER

33For all of the foregoing reasons, the Tribunal makes the following Order:

1. by no later than August 26, 2008, the respondent and/or the Chief of Police shall make full disclosure and production of all documents in the personnel files of Constable Kevin Cote, Constable David Lenchuk or Staff Sergeant Stan Belza or from any other location that relate to the subject-matter of the complaint in this proceeding or that relate to other complaints or allegations of sexual orientation discrimination against Constable Kevin Cote, Constable David Lenchuk or Staff Sergeant Belza;
2. by September 9, 2008, the Commission shall serve and file its hearing brief in accordance with Rule 57;
3. by September 16, 2008, the complainant shall serve and file his hearing brief, if any, in accordance with Rule 60;
4. by October 7, 2008, the respondent shall serve and file its hearing brief in accordance with Rule 63;
5. any reply pursuant to Rule 66 shall be served and filed by October 14, 2008; and
6. the Pre-Hearing Conference Call will be scheduled for October 15, 2008 at 4:30 p.m.

Footnotes

1. 1At the very least, this is the date when a copy of this disclosure was filed with the Tribunal, which was not required by my order or the Rules. I am aware that the Commission states that it did not receive a copy of this disclosure at this time, which is disputed by the respondent. However, it is clear that an effort was made by the respondent and the Chief of Police to comply with my order by the required date, and nothing in this decision requires me to make a precise determination as to when the Commission received the disclosure.