Washington v. Toronto Police Services Board, 2009 HRTO 640

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 Stavintsky, 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: May 14, 2009 Citation: 2009 HRTO 640 Indexed as: Washington v. Toronto Police Services Board

APPEARANCES

Lloyd Washington, Complainant ) Vickie McPhee, ) Representative ) (Written submissions only)

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, ) Sie-Wing Khow, William Blair, ) Counsel Respondent to the Request for Order During ) Proceeding )

Toronto Police Association, Intervenor ) David Butt, Counsel

INTRODUCTION

1In a previous Interim Decision in this matter, 2008 HRTO 217 (the “February decision”), the Tribunal ordered the Chief of Police for the City of Toronto to produce to the Tribunal all records of complaints against the respondent police officers Aroda, Wilson, Stavintsky, Morris, Shaw, Hockney, and Bragg alleging racial profiling, racial discrimination, and/or racial harassment, and any discipline imposed as a result of such complaints. On a subsequent telephone conference call with the parties on April 14, 2009, the Tribunal amended the decision to add Clayton Douglas Campbell to the list of officers, as I was satisfied that he had been given notice of the request since he had been incorrectly named in the style of cause. The officers whose records were ordered produced to the Tribunal are seeking judicial review of the February decision in Divisional Court. They ask that the Tribunal stay (suspend) aspects of its order pending the resolution of the judicial review. The other respondents, the Chief, and the intervenor Toronto Police Association support this request. The Commission and the complainant oppose it.

2In my view, a stay is not appropriate. I do not accept that production of the records to the Tribunal would lead to irreparable harm to the officers or to the police discipline process. Moreover, particularly considered in light of the scheme of the amended Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), it would not be appropriate to delay production and potentially the hearing on the merits pending a review of the Tribunal’s Interim Decision relating to production of documents.

BACKGROUND

3This proceeding involves the adjudication of a Complaint referred to the Tribunal by the Commission under the old Code. It alleges discrimination on the basis of colour, creed, place of origin and race by the nine respondent officers in their treatment of him, including physical assaults and harassment of him and his family. It alleges that the harassment was ordered by the then Chief of Police, Julian Fantino, and that the complainant’s treatment reflects systemic discrimination and racial profiling within the Toronto Police Service.

4The Commission sought production of all prior complaints of misconduct based on race made against the respondent officers, with the exception of Mr. Fantino. In January 2009, the Supreme Court of Canada released its decision in R. v. McNeil, 2009 SCC 3, which addressed the production of police discipline records in the criminal context. The February decision considered the application of McNeil in the human rights context and held the records requested by the Commission should be produced to the Tribunal, which would determine whether their probative value could arguably outweigh their prejudicial effect. The Tribunal sought submissions from the parties on how it should balance potential probative value and potential prejudice when reviewing the records, and on any conditions it should place on the use of any records it ordered disclosed. As a result of various extensions granted on consent and a suspension of the order pending the resolution of this stay request, the order has not yet taken effect, the parties have not yet made the requested submissions, and the Tribunal has not determined whether any records will in fact be disclosed to the Commission and complainant. The hearing of the merits of the Complaint is expected to commence in October.

5The respondents only seek a stay of the order as it relates to public complaints under the Police Services Act, R.S.O. 1990, c. P.15, as amended, (the “PSA”) that have not been determined to be meritorious, either through a finding of guilt or the issuance of a Notice of Hearing.

APPLICABLE LEGAL PRINCIPLES

6In general, an application for judicial review does not operate as a stay of a Tribunal decision: Rule 94 of the Tribunal’s Rules of Practice. The parties agree that for a stay to be granted, the respondents must establish: (1) that there is a serious issue to be tried; (2) that they will suffer irreparable harm if the stay is not granted; and (3) that the balance of convenience favours the granting of the stay: Brockie v. Brillinger (No. 1) (1999), CHRR Doc. 99-119 (Ont. Bd. Inq.); King v. Toronto Police Services Board, 2008 HRTO 55.

7This test, of course, reflects the traditional civil test for the granting of an injunction or a stay. In relation to an application for judicial review of an interim Tribunal decision, it should be considered in the context of the Tribunal’s role in the human rights system under the newly revised Code. I therefore make some comments about this system before considering the application of the test to the facts of this case.

8It is a well-established principle of judicial review that “delays or interruptions occasioned by judicial review proceedings should be avoided except in ‘exceptional circumstances’”: King, supra at para. 26. As the Divisional Court explained in Ontario College of Art v. Ontario (Human Rights Commission), 1993 CanLII 3430,

For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.

9The Divisional Court has emphasized that this approach should be applied by adjudicators in considering requests like this one, holding that a labour arbitrator erred in adjourning an arbitration pending a decision on a judicial review of an interim decision: Placer Dome Inc. v. United Steelworkers of America, Local 8533, [1994] O.J. No. 522.

10These principles, in my view, are supported and strengthened by the provisions of the new Code, and, in determining requests for stays pending judicial review, the Tribunal should take the legislature’s guidance into account. Section 41 permits the Tribunal to “adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it” [emphasis added]. Decisions of the Tribunal are final and not subject to appeal or to being set aside in a judicial review unless the decision is patently unreasonable: s. 45.8.

11Most important, s. 43(8) of the Code specifically addresses the issue of procedural rulings, providing as follows:

Failure on the part of the Tribunal to comply with the practices and procedures required by the rules or the exercise of a discretion under the rules by the Tribunal in a particular manner is not a ground for setting aside a decision of the Tribunal on an application for judicial review or any other form of relief, unless the failure or the exercise of a discretion caused a substantial wrong which affected the final disposition of the matter.

The requirement for a procedural ruling to affect the “final disposition” of the matter in order to be set aside by a Court is, in my view, a particularly strong signal that the Tribunal should be reluctant to fragment or interrupt its proceedings as a result of an application for Judicial Review, absent exceptional circumstances.

12In summary, unlike the previous Code in which decisions could be appealed as of right to the Divisional Court, the new Code sets up the Tribunal as a specialized adjudicative agency, focused on the fair, just and expeditious resolution of matters before it and subject to a privative clause. In applying the test for a stay, these features of the legislation must be central to the analysis.

APPLICATION OF THE TEST

13I turn now to a consideration of whether there is a serious issue to be tried, irreparable harm to the respondents if the stay is not granted, and whether the balance of convenience favours the stay. The Commission does not dispute, for the purposes of this stay request, that there is a serious issue to be tried. I agree that there is a serious issue to be adjudicated on the judicial review.

14On the issue of irreparable harm, the respondents make several arguments. First, they assert that there will be irreparable harm to the process of police discipline if the records are produced and it is later found that this order should not have been made. They note that the PSA contains the following provisions regarding confidentiality, and suggest that if a Court subsequently determines that the Tribunal’s order was inconsistent with the PSA but production had occurred, irreparable harm to the process would be caused:

69(8) No person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties, except at a hearing held under this Part.

69(9) No document prepared as the result of a complaint is admissible in a civil proceeding, except at a hearing held under this Part.

80. Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,

(a) as may be required in connection with the administration of this Act and the regulations;

(b) to his or her counsel;

(c) as may be required for law enforcement purposes; or

(d) with the consent of the person, if any, to whom the information relates.

15The respondents also suggest that irreparable harm could be caused to the persons who made the complaints, whose privacy interests, I recognized in the February decision, are engaged in these circumstances.

16I have some difficulty seeing how producing the complaints themselves engages s. 69(8), which deals with testimony by persons administering the PSA, or s. 69(9), which deals with documents prepared “as the result of a complaint”. I am also of the view that enforcement of the Code is “law enforcement” within the meaning of s. 80. Nevertheless, it may be determined on judicial review that this interpretation is not correct, and that the sections of the Code authorizing production orders by the Tribunal do not take precedence over these PSA provisions. Accordingly, I must consider whether, if it is subsequently found that I should not have made the order that the documents be produced to the Tribunal, irreparable harm would be caused.

17It is not yet known whether any records exist that fall within the order, nor whether, if the Tribunal reviews records that do exist, any will be ordered disclosed to the Commission and complainant. In my view, production of records to a neutral decision maker for consideration of whether they should be given to the other side does not constitute irreparable harm to any parties. I note that even in relation to documents that are potentially privileged, the Supreme Court has recognized the legitimacy of judges examining records to determine whether a privilege exists: M.(A.) v. Ryan, [1997] 1 S.C.R. 457 at para. 39. Production to an adjudicator, in my view, cannot lead to irreparable harm, as it is designed to prevent possible harm of inappropriate disclosure.

18In light of the fact that there is not yet any order for production to the Commission and complainant, and I have not yet made any determinations about conditions on the use of the documents, in my view it is not an issue at this point whether such disclosure would or could constitute irreparable harm. If the issue of production to the other parties is a relevant consideration, I would adopt the reasoning on the issue of irreparable harm in King, supra, at para. 14.

19Turning to the balance of convenience, the respondents emphasize the importance of this issue to them, the significant number of cases in which the issue has arisen, the evolving nature of the jurisprudence in this area, and the importance of obtaining guidance from the courts in light of these factors before the matter proceeds. They suggest that these considerations, together with the harm to the police discipline process that would result, outweigh the interests in not interrupting administrative proceedings discussed above. They argue that the judicial review could likely be heard by September, and that, if the Court’s reasons upheld the Tribunal’s decision after the hearing had started, the Tribunal could be flexible with its procedure to allow such evidence to be called later. They note the length of time that has elapsed since the complaint was filed through no fault of the officers, and argue that in this context, some further delay is acceptable.

20In my view, the respondents’ assertion that the Tribunal should put the issue of disclosure on hold pending guidance from the courts is inconsistent with the scheme of the Code and the approach to judicial review of interim decisions, and accordingly the balance of convenience militates against granting the stay. Production disputes are common in Tribunal proceedings, and are often contentious, involving strongly disputed interpretations of the relevant legal principles and requests for sensitive documents such as medical records, employment files and lawyers’ notes (see, for example, R.A. v. Toronto Police Services Board, 2009 HRTO 231 at paras. 12 – 22). A party denied production may feel strongly that this affects their ability to make their case, and a party ordered to make production may believe it should not have been ordered. The Tribunal, however, is charged with the responsibility to make such decisions and the Code suggests that they will be overturned only where such an order has caused a substantial wrong that has affected the final disposition. If, as a result of the filing of judicial reviews, the Tribunal routinely delays its proceedings or suspends its orders, the fair, just and expeditious resolution of proceedings could be compromised.

21Moreover, I do not accept that a stay can be granted without affecting the Tribunal’s process. If production is ordered, the complainant and Commission should have it in advance of starting their case. As stated in King at para. 29, there is no way of knowing when the Court would render its decision or if an appeal would be brought.

22Accordingly, in my view it is only in rare and exceptional circumstances that a judicial review could justify a stay of a production order, and the respondents have cited no such circumstances here. There is nothing, in my view, that distinguishes these circumstances from others in which a party seeks to judicially review an interim order. I find that the balance of convenience strongly militates against a stay.

23The respondents ask, in the alternative, that the Tribunal’s order be delayed for three weeks, so that they may seek a stay from the Divisional Court. The complainant opposes this request and the Commission does not take issue with it. I grant the respondents’ alternative request, since if it is not granted and the Court determines that a stay is appropriate, the stay would not be effective.

ORDER

24The request for a stay is denied. The Chief of Police shall comply by June 4, 2009 with the Tribunal’s order of February 27, 2009 as amended on April 14, 2009.