Harrinauth Deesasan v. Toronto Police Services Board, 2009 HRTO 687

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harrinauth Deesasan Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Toronto Police Services Board, Nicholas Sword, Julian Fantino, Lionel Peters, Lissa Waters and Todd Higo Respondents

INTERIM DECISION

Adjudicator: David A. Wright Date: May 26, 2009 Citation: 2009 HRTO 687 Indexed as: Deesasan v. Toronto Police Services Board

APPEARANCES

Harrinauth Deesasan, Complainant ) Devika J. Ratnayake, ) Counsel

Ontario Human Rights Commission ) Monmi Goswami, ) Counsel

Toronto Police Services Board, ) Kirsten Franz, Nicholas Sword, Julian Fantino, Lionel Peters ) Counsel Lissa Waters and Todd Higo, Respondents )

INTRODUCTION

1This Interim Decision addresses yet another circumstance in which matters in a Tribunal proceeding were previously raised in another legal process. The complainant pursued an action in the Superior Court of Justice against the respondents (with the exception of Julian Fantino), seeking damages for the torts of assault and battery, which made many of the same allegations as are made in this Commission-referred Complaint. In the course of the final decision dismissing the action, the Court made findings of fact that are inconsistent with significant factual allegations the complainant wishes to pursue. The respondent argues that the Complaint should therefore be dismissed, applying the principles of abuse of process, issue estoppel, and/or s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19. The complainant and Commission disagree and submit that the Court decision should have no effect on the Tribunal’s process. This decision deals with the effect of the civil judgment, and also whether the Commission and complainant may raise matters that the respondents argue were not part of the Complaint initially filed with the Commission.

BACKGROUND

2The Complaint relates to events that occurred on June 30, 2003, when the complainant was a passenger in a vehicle that was approached by a police officer. The driver drove away and the car was pursued by police. When it was finally stopped, the complainant was physically restrained, arrested, taken to the police station, and charged with weapons offences. He alleges that he was assaulted and unnecessary force was used while he was arrested, that he was again assaulted while in the police car en route to the station, and that these actions constitute discrimination on the basis of race, ancestry and colour. It is also alleged that the decisions to stop, detain and/or arrest Mr. Dessasan were tainted by negative stereotypes and assumptions based on the prohibited grounds, and that he was racially profiled in the manner he was treated by the police throughout his interaction with them. Mr. Deesasan identifies as a Black person of Indian descent.

3The Complaint was filed with the Commission on April 13, 2004 and referred to the Tribunal by letter dated June 6, 2008. The Commission’s letter stated that it was referring the matter to the Tribunal pursuant to s.33(6) of the Code as it read prior to June 30, 2008.

4The Complaint is self-drafted and appears to be an excerpt from an earlier version of the civil claim, which was filed in Small Claims Court before being transferred to Superior Court. It is entitled “claim” and refers to the complainant as the “plaintiff” and the respondents as “defendants”. It refers to “unlawful assaults” and “negligence” by the respondents and, except in the Commission cover page, does not refer to prohibited grounds. It alleges that the complainant “was the owner and passenger in a vehicle being operated at the City of Toronto. This vehicle was the subject of a police investigation and pursuit”. It goes on to describe the alleged assaults and effects upon him. The personal respondents are the officers who allegedly assaulted the complainant and do not include other officers involved in the events. The Amended Statement of Claim, the final pleading in the civil action, makes similar factual allegations, described in somewhat more detail, and does not make allegations that race was a factor in the defendants’ actions.

5Following a trial, Justice Spies rendered a long and detailed oral ruling. The action was dismissed. The Court found that the plaintiff had not proven that the alleged assaults occurred and made various findings regarding the complainant’s damages. In particular, the respondents draw my attention to the following quotations from the reasons:

Given the inconsistencies in the plaintiff’s evidence which were not explained, and given the fact he was not forthright on even ancillary matters, I find that the evidence of the plaintiff concerning the alleged assaults was not credible. Based on his evidence alone, I could not find that the alleged assaults occurred. (Transcript, p. 45)

Constable Higo testified that he believed he had reasonable grounds for the arrest based on what Mr. Deesasan said as to why he was carrying the knife. He admitted that the charges were ultimately withdrawn by the Crown, but said it was because of case law that he was not familiar with which permits someone to carry a knife for protection. This was confirmed by Detective Ihasz who laid the formal charges. He said that he was opposed to the withdrawal of the charges by the Crown based on the case law and that he was prepared for trial and had witnesses present. There is no claim for malicious prosecution, and in my view, no evidence to suggest that the charges were improperly laid. (Transcript, p. 56)

Furthermore I find that these bruises and abrasions are consistent with the police officers’ version of events. They are consistent with the injuries I would have expected were possible during the course of his arrest from the use of necessary and reasonable force. (Transcript, p. 64)

I find that if he suffered the injuries as he alleged, they were not as a result of the arrest. (Transcript, p. 65)

Accordingly, I find for these reasons that the plaintiff has not satisfied me on a balance of probability that he was assaulted on two separate occasions as alleged. Accordingly, the action is dismissed. (Transcript, p. 66)

6The complainant filed a Notice of Appeal in Divisional Court, and the appeal was subsequently transferred to the Court of Appeal on consent in January 2007. The complainant, however, took no further steps on the appeal.

ANALYSIS

Abuse of Process

7The respondents base their arguments upon issue estoppel, abuse of process, and the application of these concepts under s. 45.1 of the Code. In my view, the concerns about relitigation raised by the respondents can be resolved under the framework of abuse of process, and there is no need to consider the other legal concepts they raise. This Tribunal has held that issue estoppel does not generally apply in a Commission-referred complaint where the Commission was not a party to previous litigation, in light of its role in representing the public interest: Snow v. Honda, 2007 HRTO 45 at para. 50.

8Pursuant to s.23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. s.22, the Tribunal may “make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes”. As noted by the Tribunal in Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 28, abuse of process is a legal doctrine “whose focus is the integrity and coherence of the adjudicative process” and a finding of abuse of process is not a conclusion that any party has acted with malice or in bad faith.

9In Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (“CUPE”), the Supreme Court of Canada held that abuse of process may apply to prevent relitigation of issues previously determined in a different proceeding. As the Court stated at para. 37,

…Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.

10At para. 52, the Court went on to explain:

It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context.

11The Tribunal has applied this principle to find that a respondent is not entitled to relitigate facts agreed to in a criminal proceeding where the respondent was convicted: Hughes v. 1308581 Ontario Ltd., 2009 HRTO 341 at paras. 9-17; Hope v. Maplewood Painting, 2009 HRTO 595, and to preclude the relitigation of facts and issues that were previously dealt with in another administrative proceeding: Campbell, supra.

12In Snow, supra, at para. 56, the Tribunal held that in applying the doctrine of abuse of process where there were prior proceedings, the fundamental question is whether it would be fair to permit relitigation of the issues previously determined. At para. 57, the Tribunal summarized the following factors that have been applied by human rights adjudicators in answering this question:

• the wording of the other statute;
• the purpose of the other legislation;
• the availability of an appeal in the other proceedings;
• the safeguards available to the parties in the other administrative procedure;
• the expertise of the decision-maker in the other proceeding;
• the circumstances giving rise to prior administrative proceedings;
• the issues decided in the other proceedings;
• the human rights principles applied in the other proceeding;
• whether fresh evidence is available which was not available in the earlier proceeding;
• whether the earlier action was tainted by fraud, dishonesty or unfairness of any kind;
• any potential injustice.

13There is no dispute between the parties that the facts found by the Court are inconsistent with at least some of the allegations made by the complainant. The complainant and Commission, however, make several submissions in support of their argument that abuse of process does not prevent them from presenting a version of facts different from that found by the Court.

14First, they note that the civil action related only to tort claims and not discrimination, and suggest that for that reason alone, the civil judgment can have no effect on subsequent proceedings. This argument is inconsistent with the principles set out in CUPE and the Tribunal cases that have relied upon it, which recognize that facts that have been found in one legal context may be binding in another legal context. The Court’s findings of fact related to the credibility of witnesses, and were based principally on oral evidence and medical records. The decision about whose version of events to believe would involve the same principles and be made in the same way in a Tribunal proceeding.

15Similarly, the Commission and complainant rely upon the specific principles relating to circumstantial evidence in human rights proceedings, which they suggest are different from those in civil courts. The finding about whether the Complainant’s account of events was believed in this case was not a matter that depended upon circumstantial evidence. Moreover, I reject the suggestion that the superior courts of this province cannot take into account circumstantial evidence or the subtle nature of racism in interactions between police and individuals. In fact, the courts have discussed the nature of anti-Black racism in cases the Tribunal has relied upon: see, for example, R. v. Spence, 2005 SCC 71; R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont. C.A.). For all these reasons, the different legal context does not preclude the application of abuse of process.

16Second, the complainant and Commission rely upon Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427, which was subsequently applied in R.A. v. Toronto Police Services Board, 2009 HRTO 231, to suggest that CUPE only applies to bar relitigation of findings of guilt beyond a reasonable doubt. These cases held that abuse of process did not prevent a person who was not party to criminal proceedings from challenging findings of fact made in the course of acquitting the accused. I do not believe that they have any bearing on the present circumstances, as the factors relied upon by the Court of Appeal in coming to this conclusion, summarized at para. 8 of R.A.¸ do not apply. These factors relate primarily to the specific burden of proof in criminal proceedings and the fact that the criminal law does not recognize a verdict of factual innocence. The factual findings in the civil proceedings in this case was whether the alleged assaults and damages were proven on a balance of probabilities, the same standard of proof as the Tribunal uses. To question those findings would be to directly question the result of the Court decision, and therefore the integrity of the administration of justice.

17Finally, the Commission and complainant suggest that the complainant’s lack of financial means to hire counsel to appeal the decision should weigh against finding its facts to be binding. There is no authority cited for this proposition and it is not a reason not to apply the abuse of process doctrine to the judge’s findings of fact following the trial at which he was represented.

18I find that it would be unfair and an abuse of process for the Commission and complainant to relitigate the factual issues that were before and decided by Justice Spies. These issues were decided in a fair proceeding initiated and pursued by the complainant. Trial judges have expertise in making findings of fact and credibility. The issue of whether the alleged assaults occurred and whether the police used excessive force in the arrest were fully litigated before the Court, and it would be unfair for the respondents to have to again defend themselves against them. Accordingly, I find that no evidence may be presented that conflicts with the Court’s factual findings regarding the alleged assaults and the complainant’s injuries and damages.

19The abuse of process doctrine does not, however, prevent the complainant and Commission from presenting evidence and making the argument that race was a factor in any of the other actions of the police in relation to the complainant, including their decisions to arrest and charge him. The respondents suggest that the finding that there is “no evidence to suggest that the charges were improperly laid” precludes an argument that the arrest or charge of the complainant was tainted by race. I do not agree. As the Court pointed out, there was no claim in the civil proceeding for malicious prosecution, and none of the issues before the Court related to whether race was a factor in the decision to arrest or charge the complainant. The Court’s comment about the lack of evidence in that proceeding regarding “improper” laying of charges must be seen in this context, and in my view it does not determine any issues raised in this Complaint. Accordingly, I find that the Commission and complainant are not precluded from calling evidence or making argument that suggests that race was a factor in the decision to arrest or charge the complainant.

The Approach of the Vehicle

20The Hearing Briefs allege that race was a factor in the initial decision to approach vehicle in which the complainant was a passenger. The respondents argue that raising this issue improperly expands the Complaint, that it is not related to the actions of the four personal respondents, and would result in unfairness to the respondents. They rely primarily upon the Tribunal’s decision in Persaud v. Toronto District School Board, 2008 HRTO 12 at paras. 41-42.

21The parties do not disagree, in essence, on the principles to be applied. They were summarized as follows at para. 40 of Persaud:

All parties refer to this Tribunal’s decision in Toneguzzo v. Kimberly-Clark Inc., 2005 HRTO 45. This decision confirms several fundamental principles relating to motions to strike paragraphs of pleadings on the basis that they were not included in the original complaint document, including: that pleadings in a human rights proceeding ought not be scrutinized in the same manner as pleadings in civil proceedings; that the “subject matter of the complaint” is not restricted to the specific factual allegations set out in the original complaint form; that a human rights complaint is not in the nature of a criminal indictment, but rather is a notice to a respondent of the commencement of an administrative proceeding; that the wording of the Code makes clear that the Tribunal has the broad jurisdiction to inquire into all aspects of a matter referred to it; and that the defining of the case and scope of the inquiry before the Tribunal occurs at the point the complaint is referred to the Tribunal and during the period in which the Tribunal’s pre-hearing processes are engaged, not when a complaint is drafted (see paras. 53 to 59).

22I agree that the focus of the Complaint document is the alleged assaults. This is clear both from its wording and the fact that the officers named as personal respondents were those allegedly involved in them. The initial approach of the vehicle nevertheless forms part of the subject-matter of the Complaint and is properly raised by the Commission and the complainant. The investigation of the vehicle is referred to in the narrative of facts and forms part of the continuum of events that took place on the day in question. The inclusion of the approach of the vehicle as part of the Commission and complainant’s case would not, in the circumstances, be unfair to the respondents. The respondents’ arguments, in my view, suggest a requirement for particularity in the drafting of a Commission Complaint that is inconsistent with the case law. I decline to strike these allegations.

ORDER

23In view of the fact that I have found that various aspects of the Complaint are not barred by abuse of process, the dismissal requested by the Respondent is not appropriate. I order that the Commission and complainant may not lead evidence that conflicts with the Court’s factual findings regarding the alleged assaults and the complainant’s injuries and damages.

24The Registrar – Transition will be in contact with the parties shortly to schedule a Pre-Hearing Conference Call during which hearing dates will be scheduled.