R.A. v. Toronto Police Services Board, 2009 HRTO 231

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.A. and L.A. by his litigation guardian R.A.

Complainants

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board, Doug Bethune,

Mark Fennell, Jeffrey Kell and Tony White

Respondents

interim DECISION

Adjudicator: David A. Wright

Date: March 3, 2009

Citation: 2009 HRTO 231

Indexed as: R.A. v. Toronto Police Services Board

APPEARANCES

R.A. and L.A. by his litigation guardian, R.A., ) On Their Own Behalf

Complainants )

Ontario Human Rights Commission ) Kikee Malik, Counsel

Toronto Police Services Board, ) Michele Wright,

Doug Bethune, and Tony White, ) Counsel

Respondents )

Mark Fennell and Jeffrey Kell, ) Melany Franklin and

Respondents ) Naomi Calla, Counsel

INTRODUCTION

1This complaint, which was referred to the Tribunal by the Ontario Human Rights Commission, stems in part from an interaction on September 28, 2004, between L.A., who was fifteen years old at the time, and Constables Mark Fennell and Jeffrey Kell. It is undisputed that, when Constables Fennell and Kell had made a traffic stop in downtown Toronto, L.A. said in a voice loud enough to be heard, “the only reason this guy was pulled over was because he’s Chinese. These cops are fucking racist”. After a series of events that are in dispute between the parties, L.A. was charged with causing a disturbance and assaulting a police officer with intent to resist arrest. R.A., L.A.’s father, alleges that he was discriminated against and called racist names when he went to the police station to assist his son while L.A. was being held in custody.

2Following a trial, L.A. was acquitted by Mr. Justice B. Weagant of the Ontario Court of Justice on December 5, 2005. In his reasons for judgment, reported at R. v. L.A., 2005 ONCJ 546, [2005] O.J. No. 6285, Weagant J. reached various conclusions about what happened that day, upon which the Commission wishes to rely in these proceedings. The Commission argues that it would be an abuse of process for the respondents to question these findings of fact in the Tribunal proceeding. The respondents, on the other hand, argue that the reasons for judgment are not admissible as either evidence or an authority.

3The Tribunal heard argument on the issue of the legal effect of the judgment as a preliminary matter. The parties filed written submissions and an oral hearing was held on January 30, 2009. On that date, the parties also argued various production requests made by the respondents, which are also addressed in this decision.

THE REASONS FOR JUDGMENT

4Justice Weagant heard the evidence of three officers, L.A., and two friends. The essence of his findings is captured in paragraphs 26-30 of his reasons:

The mid-trial revelation that the officers did not run Mr. A.'s name on CPIC until after he was arrested, is an incontrovertible piece of evidence that calls into question the credibility of the police evidence in this case. The officers' lack of detail or memory about who or what or how the pre-arrest checks were done is now explained by the fact that the checks were never done at all until Mr. A. was in police custody. When this is coupled with the substantial inconsistencies of the officers' different versions of when the "cause disturbance" began, I conclude that the testimony of the police witnesses was neither credible nor reliable.

I accept the testimony of the three young people, with one reservation. I believe that Mr. A. did get much louder than he or his friends were prepared to admit. However, in my view, his raised voice was precipitated by the police refusing to give their names when requested, and was not meant to cause a disturbance.

It is quite clear to me what happened. Mr. A. made a stupid teenage comment that was overheard by Officer Fennell. Officer Fennell took great umbrage at the insensitivity of the comment and, instead of letting the boys just go on their way in the time-honoured tradition of "sticks and stones," he decided to teach Mr. A. a lesson about who is the biggest lad in the school yard. Indeed, Officer Fennell's summary of his interaction was cast in terms of Mr. A. taking "his lesson."

I am sure there was a disturbance that evening. It was caused when a police officer slammed a teenager, half the size of the officer, onto a car because of the teen's mouthiness. This was compounded by an illegal detention and search. The teen decided to stick up for himself and get the names of the officers involved. He kept demanding their names and he wouldn't go away. I conclude from the inconsistent and incredible frailty of their testimony that for the officers that night, the best defence was offence: charge the teen with something.

It is exceedingly clear that this was about the officers taking the accused's intemperate comment personally. Referring to Justin V. (in Officer Kells' notes) as the accused's "fat buddy" smacks of an officer who has a bee in his bonnet, and not that of an impartial guardian of the law. Further, this young accused with no criminal antecedents was released from the police station on an undertaking that he would be under a form of house arrest after 7:00 every evening, a somewhat harsh and unrealistic thing to do to a teenager, particularly in these circumstances. This entire event could have occurred at 3:00 in the afternoon as easily as at 9:00 in the evening. This condition is manifestly arbitrary and not at all required to ensure the safety or security of Officer Fennell, which would be the only grounds to impose such a condition in accordance with section 499(2)(h) of the Code. I am sure that after a year of serving this ersatz conditional sentence imposed by the police it is clear to Mr. A. who runs the schoolyard.

5The Commission asks the Tribunal to hold that various factual findings made by Weagant J. cannot be challenged in the Tribunal’s proceedings. It relies upon the decision of the Supreme Court of Canada in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63 (“CUPE”), which found that, except in certain circumstances, it is an impermissible abuse of process to relitigate or question a finding of guilt previously made in a criminal proceeding in a subsequent civil proceeding. It relies upon two decisions in the labour context which applied CUPE to hold that findings of fact made by a trial judge in the course of acquitting an accused could not be questioned in subsequent arbitration proceedings: Near North District School Board v. Ontario Secondary School Teachers’ Federation, District 4 (2006), 153 L.A.C. (4th) 437 (Herman) and Ontario Public Service Employees Union v. Ontario (Liquor Control Board of Ontario), [2007] O.G.S.B.A. No. 145 (Harris).

6Since these decisions, however, the Court of Appeal for Ontario has spoken on the issue. In its decision in Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427, the Court held that it is not an abuse of process to challenge, in a subsequent civil proceeding, findings made by a trial judge in the course of acquitting an accused. In my view, Polgrain applies to the present case and the respondents are entitled to argue that my findings of fact should be different from those of Weagant J.

7Polgrain Estate involved a civil action brought by the estate of Mrs. Polgrain, who, at the age of 73, was a patient in the intensive care unit at the Toronto East General Hospital. She was disabled and entirely dependent on the nurses and staff of the hospital. Two employees of the hospital believed that they had witnessed a nurse at the hospital sexually assault Mrs. Polgrain on two separate occasions in June 2000. The nurse was charged with sexual assault. In the course of acquitting him, the trial judge found that the evidence not only failed to prove the nurse’s guilt beyond a reasonable doubt, but that it showed his innocence. The defendants in the civil action argued that it must be dismissed, on the basis that the judge in the criminal trial had determined that the alleged assault had not happened, and therefore there could be no liability. They argued that Mrs. Polgrain’s estate was prevented, as a result of the principles of abuse of process articulated in CUPE, from relitigating the findings in the criminal trial.

8Mr. Justice Rosenberg, writing on behalf of the unanimous panel, considered the law and policy considerations relevant to the question of whether CUPE barred the plaintiffs from questioning facts found by the criminal trial judge in the course of rendering the verdict of not guilty. The Court found, at para. 45, that “the reasons of the trial judge in acquitting Mr. Cocchio are not judicial findings that attract the same relitigation concerns as does the formal verdict”. Justice Rosenberg relied upon the following considerations in support of this conclusion:

• No appeal could have been brought by the Crown or the estate from the reasons (as opposed to the verdict) of the trial judge. Only the Crown could have appealed, and it could have done so only if the findings of fact tainted the verdict, and only on a question of law. Unlike an accused found guilty, therefore, the plaintiffs could not have challenged the reasons. (paras. 31 – 32)
• The only judicial finding in an acquittal is that a case has not been proven beyond a reasonable doubt and to give legal significance to other aspects of the decision would confuse the role of the criminal and civil courts. (paras. 33 and 36)
• The law does not recognize a verdict of factual innocence. (para. 35)
• Trial judges should not be discouraged by the application of the abuse of process doctrine from expressing their reasons for acquittal in the manner they see fit, and “that may give the parties solace, satisfaction or even vindication”. (para. 37)

9The Commission argues that Polgrain Estate is different from this case, because application of the doctrine of issue estoppel would have barred the action in that case, whereas in this case it would merely eliminate part of the respondents’ defence. I see no basis for such a distinction in the Court of Appeal’s reasoning. The Court was clear that the doctrine of abuse of process does not apply to prevent relitigation of findings of fact made in the course of rendering a verdict of not guilty. Accordingly, the Tribunal cannot, as the Commission requests, make findings of fact based on the reasons in the criminal trial.

10The respondents argue that I should go further and find that the reasons of Weagant J. cannot be considered for any purpose. They rely upon Rizzo v. Hanover Insurance Co. (1993), 14 O.R. (3d) 89 (C.A.), where the court held that “evidence of acquittal in a criminal trial is inadmissible in a subsequent civil trial as proof that the party did not commit the offence”.

11In my view, Rizzo simply reflects the principles set out in Polgrain Estate that an acquittal does not establish facts for the purposes of a subsequent civil matter. It does not preclude the possibility that the reasons may be relevant to an issue in the hearing. Moreover, it does not preclude the Commission and complainant from relying upon the criminal judgment as an authority whose method of reasoning I should consider or follow in determining credibility.

PRODUCTION REQUESTS

Notes Taken by L.A.’s Criminal Lawyer

12The respondents seek production of “all witness statements taken or obtained by Mr. Raymond Li in connection with his representation of L.A.”. The Commission and complainant argue that these statements are protected by litigation privilege.

13Litigation privilege protects information or materials prepared in the context of litigation, which include communications between a solicitor and third parties. The respondents do not dispute that these documents were subject to litigation privilege while the criminal process was ongoing. However, relying upon Blank v. Canada (Minister of Justice), 2006 SCC 39, they argue that the privilege came to an end when the criminal litigation concluded.

14In Blank, the Supreme Court addressed the issue of whether documents subject to litigation privilege retain the privilege when the litigation ends. Justice Fish, writing on behalf of the majority, held as follows at paras. 34 – 36:

The purpose of the litigation privilege, I repeat, is to create a “zone of privacy” in relation to pending or apprehended litigation. Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose — and therefore its justification. But to borrow a phrase, the litigation is not over until it is over: It cannot be said to have “terminated”, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat.

Except where such related litigation persists, there is no need and no reason to protect from discovery anything that would have been subject to compellable disclosure but for the pending or apprehended proceedings which provided its shield. Where the litigation has indeed ended, there is little room for concern lest opposing counsel or their clients argue their case “on wits borrowed from the adversary”, to use the language of the U.S. Supreme Court in Hickman, at p. 516.

I therefore agree with the majority in the Federal Court of Appeal and others who share their view that the common law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege.

15The Commission argues that this complaint is “related litigation” to the criminal proceedings. In Blank, at paras. 38 – 39, the Court found that whether litigation is “related” should be determined by reference to the purpose of litigation privilege itself:

As mentioned earlier, however, the privilege may retain its purpose — and, therefore, its effect — where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended. In this regard, I agree with Pelletier J.A. regarding “the possibility of defining . . . litigation more broadly than the particular proceeding which gave rise to the claim” (para. 89); see Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 1988 ABCA 282, 90 A.R. 323 (C.A.).

At a minimum, it seems to me, this enlarged definition of “litigation” includes separate proceedings that involve the same or related parties and arise from the same or a related cause of action (or “juridical source”). Proceedings that raise issues common to the initial action and share its essential purpose would in my view qualify as well.

As a matter of principle, the boundaries of this extended meaning of “litigation” are limited by the purpose for which litigation privilege is granted, namely, as mentioned, “the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate” (Sharpe, at p. 165).

16In my view, this litigation is related to the previous criminal proceedings in the sense contemplated in Blank and the litigation privilege therefore continues. Like the criminal process, this litigation is in part about two competing versions of what happened between L.A. and Constables Kell and Fennell on September 28, 2004 and the legal consequences of the parties’ actions. Like the criminal process, it depends entirely on credibility. The complainant intends to call many or all of the same witnesses to support his version of events, and the respondents will call many or all of the same witnesses called by the Crown in the criminal proceedings. While the Crown is a different party from the respondents, its theory of the criminal case was based on the officers’ evidence and its interest in findings of credibility was the same.

17In my view, to give the respondents, who are adverse in interest, access to the complainant’s lawyer’s contact with witnesses, where the same facts are at issue and similar evidence can be expected to be given, would not be consistent with the purpose of litigation privilege, “the protection essential to the proper operation of the adversarial process (Blank at para. 41). The request for Mr. Li’s notes is denied.

Medical Records

18Both complainants allege that they experienced depression, and L.A. also alleges that he experienced stress, paranoia and nightmares as a result of the events in question. R.A. alleges that as a result of depression, he quit his job and was unemployed for a period of two years. He seeks lost wages for this period.

19The respondents seek production of all records from L.A. and R.A.’s family doctor, Dr. Francisco Portugal, as well as an OHIP summary for R.A. from 2001 to the present. The Commission argues that only medical records about the particular mental health conditions claimed are relevant. The respondents counter that all medical records, including those related to other conditions, are arguably relevant to the issues of the nature and extent of the complainants’ mental health conditions and whether and to what extent these conditions were caused or contributed to by any discrimination. Other medical conditions, they argue may have influenced or caused the depression and other conditions.

20The complainants’ argument in this case is that the respondents’ actions caused their medical conditions, and that R.A. was unable to work as a result of his depression. Various aspects of their medical history may shed light on whether other medical conditions caused or contributed to the depression, and on the reasons R.A. was unable to work. Absent a foundation for a belief that earlier notes are relevant, however, the period of records disclosed should be limited to a period of three years immediately prior to the incident to the present.

21Counsel agreed that any production order should reflect conditions to protect the complainants’ privacy. The following conditions shall apply: respondents’ counsel shall provide the notes only to a medical consultant for the purposes of obtaining an opinion on the causes of the complainants’ health conditions and discuss their contents only for the purpose of getting necessary instructions. All copies of the documents shall be returned to the complainants at the conclusion of this litigation.

Personnel File

22The respondents seek R.A.’s complete personnel file, on the basis that it may shed light on the allegation that he resigned from employment as a result of the depression that he experienced resulting from the discrimination. As with the medical records, in my view the documents may be arguably relevant but only those for a limited period before the incident. Accordingly, I order that documents in R.A.’s personnel file dating from September 28, 2001 onwards be produced. Respondent counsel shall not provide the documents to their clients and shall discuss their contents only for the purpose of getting necessary instructions. All copies of the documents shall be returned to the complainants at the conclusion of the litigation.

ORDER

23The Tribunal makes the following order:

1. The complainants shall produce to the respondents a copy of all clinical notes and records of their family doctor from September 28, 2001 to the present, an OHIP summary for R.A. from that date to the present, and all clinical notes and records of any date relating to any mental health issues. Respondent counsel shall provide the notes only to a medical consultant for the purposes of obtaining an opinion on the causes of the complainants’ health conditions and discuss their contents only for the purpose of getting necessary instructions. All copies of the documents shall be returned to the complainants at the conclusion of this litigation.

2. R.A. shall produce a copy of all documents in his personnel file for the last job from September 28, 2001 onwards. Respondent counsel shall not provide the documents to their clients and shall discuss their contents only for the purpose of getting necessary instructions. All copies of the documents shall be returned to the complainants at the conclusion of the litigation.