Phipps v. Toronto Police Services Board, 2009 HRTO 2256

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Phipps

Applicant

-and-

Toronto Police Services Board, Michael Shaw and William Blair

Respondents

-and-

Ontario Human Rights Commission

Intervenor

DECISION

Adjudicator: Kaye Joachim

Date: December 23, 2009

Citation: 2009 HRTO 2256

Indexed as: Phipps v. Toronto Police Services Board

1This Decision addresses the respondent Toronto Police Services Board’s (“TPSB”) request for a stay of the Tribunal’s decisions in light of the respondents’ judicial review applications.

2On June 18, 2009, the Tribunal issued a Case Resolution Conference Decision, 2009 HRTO 877, finding that Officer Mike Shaw had discriminated against the applicant on the basis of race. On October 6, 2009, the Tribunal issued a further Case Resolution Conference Decision, 2009 HRTO 1604, finding that the Toronto Police Services Board (“TPSB”) was liable for the actions of Officer Shaw, together with William Blair, the Chief of Police.

3The Chief and Officer Shaw have also filed an application for judicial review of the decisions.

4The TPSB wrote to the Tribunal seeking a stay of the decisions in light of its intention to seek judicial review. The Tribunal sought written submissions which were provided by the TPSB and have been reviewed. The other parties did not make any submissions.

5This is the decision of the Tribunal on the TPSB’s request for a stay.

6The test for stay is well established: stays will only be granted in exceptional cases where there is a serious issue to be tried, irreparable harm will occur if a stay is not granted and the balance of convenience favours granting a stay.

7I will not comment on whether I consider the first branch of the test to be met on these facts. However, I am not satisfied the TPSB has provided evidence of irreparable harm if the decision is not stayed. The TPSB asserted that it was crucial to limit the impact of my decision on liability, as other members of the Tribunal may follow it or adopt a similar approach. They note that they are named as a respondent in 30 Applications at this time. Rule 10 of the Tribunal’s Rules for Transitional Applications provide that decisions issued in respect of section 53(3) applications “shall not be considered to have precedential value”. Thus, while Tribunal members or Vice-chairs may consider and be aware of these decisions, they cannot treat them as precedent. Other applications involving the TPSB will be decided on the basis of the facts and issues presented in them.

8At this point I do not understand the judicial review applications have been perfected. This is a factor in weighing the balance of convenience. The Code provides that section 53(3) applications are to proceed in an expeditious manner and granting a stay does not promote that objective. In the circumstances, I find that the balance of convenience does not weigh in favour of a stay.

9The request for a stay of the Decisions is denied. It may be that the parties can reach some agreement among themselves about enforcement of my orders pending the outcome of the judicial review.