Washington v. Toronto Police Services Board, 2009 HRTO 1038

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lloyd Washington

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board, Sanjee Aroda, David Wilson, Richard Stavintzky, Nicholas Morris, Peter Shaw, Thomas Hockney, Lorne Bragg, Julian Fantino and Clayton Douglas

Respondents

• and -

Toronto Police Association

Intervenor

interim DECISION

Adjudicator: David A. Wright

Date: July 14, 2009

Citation: 2009 HRTO 1038

Indexed as: Washington v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Lloyd Washington, Complainant ) Vickie McPhee, ) Representative

Ontario Human Rights Commission ) Brian Smith, ) Counsel

Toronto Police Services Board and Julian Fantino, ) Robert J. Baldwin, Respondents ) Counsel

Sanjee Aroda, David Wilson, Richard Stavintsky ) Kevin A. McGivney Nicholas Morris, Peter Shaw, Thomas Hockney, ) and Naomi Calla, Counsel Lorne Bragg, and Clayton Douglas, ) Respondents )

Chief of Police for the City of Toronto, ) Kalli Y. Chapman and William Blair, ) Sie-Wing Khow, Counsel Respondent to the Request for Order During ) Proceeding )

Toronto Police Association, Intervenor ) David Butt, Counsel

1This is another chapter in the ongoing dispute between the parties regarding production of previous complaints against the respondent officers on the ground of race. The Tribunal has made a series of decisions following requests by parties on both sides of the issue: 2008 HRTO 39, 2008 HRTO 210, 2009 HRTO 217, 2009 HRTO 640, and 2009 HRTO 865.

2The most recent Interim Decision, dated June 16, 2009, ordered the production of two documents. The Chief seeks variance and a stay of that order pending judicial review, as do the respondent officers. They are supported by the other respondents and the Toronto Police Association. The complainant and the Commission oppose both.

VARIANCE

3The Chief requests variance as follows:

I have reviewed the Tribunal’s decision in its entirety and on behalf of the Chief, am concerned about the privacy interests of complainants under the Police Services Act. While I note the reasons expressed at paragraph 7, I believe there is another solution which can address the issues while protecting the privacy of the complainants.

I would request that the Tribunal consider varying its Order. I would suggest that the Order provide that all the records are redacted to protect the identity of the complainants. If a party wishes to contact a complainant, they can provide a letter to Ms. Khow and Ms. Khow will send it to the complainant at the last known address the Service has. Ms. Khow will do a cover letter simply saying she is forwarding the letter pursuant to the Tribunal Order. Ms. Khow will then confirm in writing the date the letter was sent. A complainant can thereafter elect whether they want to contact the party requesting to speak to them and provide their information.

I believe that the requested variance addresses the concerns expressed in paragraph 7 of the Tribunal’s decision while balancing the privacy interests of the complainants.

4The Tribunal declines to vary the order as requested. Prior to making its decision, the Tribunal invited submissions on any restrictions it should place on the records. The proposal now made was not made in the alternative to the request that the names of non-parties be redacted. I am extremely reluctant, in the interests of fairness and finality, to vary an order made after full submissions, based on a new proposal.

5Moreover, I do not agree that the requested variance is appropriate or necessary. First, as the Commission rightly points out in its submissions, it is common in human rights and other quasi-judicial proceedings that parties are required to disclose arguably relevant documents that contain identifying information of non-party witnesses. It is not typical to make the kind of order proposed. The non-parties at issue are individuals who filed complaints of race-based misconduct by police. I agree with the Commission that receiving a letter sent from the office of the Chief of Police may cause more distress to those individuals than would receiving a letter or phone call from a representative of the Commission and may make them less likely to respond. Finally, the Commission or complainant may wish to try to locate the complainants if they have moved. The Chief’s proposed method of dealing with the issue gives them no ability to try to locate the person.

STAY OF PROCEEDINGS

6Regarding the stay of proceedings pending judicial review, I need only address the issue of whether the balance of convenience favours the granting of a stay. Even assuming that there is irreparable harm, I find that the balance of convenience militates against the granting of the stay.

7In their written submissions, the officer respondents stated as follows:

In the First Washington Stay Decision, Vice Chair Wright considered the impact of a stay on administrative proceedings, and held that this impact outweighed the importance of the issue to be tried. The individual respondents submit that, at present, the circumstances have changed to the extent that the balance of convenience tips in favour of granting a stay. At present, hearing dates have been set for October and November 2009. We anticipate that our judicial review application will be heard by early September 2009. This will provide the Commission and the applicant with at least a month prior to the hearing to review the documents, if the judicial review application is unsuccessful. Accordingly, a stay will have no impact on the Tribunal’s process.

8As a result of those submissions, I issued a Case Assessment Direction seeking clarification from the respondents of whether hearing dates in Divisional Court had been secured and their efforts to do so. I also sought submissions from the parties on whether the Tribunal’s order should be suspended until September 4, 2009, one month prior to the first scheduled day of Tribunal hearing in this matter.

9In response to this request, the respondents advised that they have not yet perfected their judicial review. The respondents advised that the Divisional Court will not provide dates until the judicial review is perfected, and that they do not expect to have that completed until July 17. They state that they will seek the earliest possible hearing dates. They assert that even if a hearing date cannot be obtained until late September, there will be no prejudice to the complainant’s and the Commission’s case as the records would not be necessary for the first several hearing dates.

10In the previous stay decision, 2009 HRTO 640 at paras. 20-22, I set out reasons why the balance of convenience will justify a stay of a production order only in “rare and exceptional circumstances”. I find that the respondents have not shown such exceptional circumstances, for the reasons set out therein.

11I sought submissions on a possible suspension of the Tribunal’s order until September 4 to determine if it would be possible to delay its implementation without affecting the Commission’s and complainant’s rights. It is clear that is not possible. It is unlikely or impossible that the judicial review will be heard and decided in time for the complainants and the Commission to have the production in time to prepare their case with sufficient time before the hearing starts, in light of the fact that the judicial review has not been perfected. It would not be fair to delay production and the hearing process in the circumstances.

12The request for a stay or suspension of the order is denied.

ORDER

13The Chief of Police shall immediately produce Responsive Records #2 and #3 to the other parties in the same form as they were sent to the Tribunal for review.