Phipps v. Toronto Police Services Board, 2009 HRTO 733

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

INTERIM DECISION

Adjudicator: Kaye Joachim Date: June 2, 2009 Citation: 2009 HRTO 733 Indexed as: Phipps v. Toronto Police Services Board

WRITTEN SUBMISSIONS FROM

Ronald Phipps, Applicant, on his own behalf Toronto Police Services Board and Michael Shaw, Respondents, Andrea Denovan, Counsel William Blair, Chief of Police for the City of Toronto, Respondent, Lisa Cabel, Counsel

Introduction

1This Interim Decision addresses a request for a stay, deferral or adjournment of the Case Resolution Conference scheduled for June 4, 2009 in respect of an Application filed November 13, 2008 under s. 53(3) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the "Code").

2The applicant, who self-identifies as a visible minority, alleges that the respondent Michael Shaw, a police constable, discriminated against him on the basis of race and colour when he stopped and questioned the applicant on March 9, 2005 while the applicant was delivering mail. The other named respondents are the Toronto Police Services Board ("TPSB") and William Blair, Chief of Police.

3The Complaint which underlies the current Application was filed with the Ontario Human Rights Commission on July 11, 2005 and abandoned upon the filing of the present Application with the Tribunal on November 13, 2008.

4The request for a stay, deferral or adjournment was raised for the first time on May 28, 2009, seven days before the scheduled hearing, and the other parties were invited to file written responses by June 1, 2009. The applicant objected to the request for a stay, deferral or adjournment. William Blair consented to the TPSB's requests.

Request for a Stay Pending Judicial Review

5The basis for the TPSB's request for a stay on May 28, 2009, is that the TPSB filed a judicial review application on May 27, 2009 challenging the Tribunal's decision dated May 15, 2009 in King v. Toronto Police Services Board, 2009 HRTO 644 (the "King decision"). The TPSB submits that the issues raised in the King decision and the pending judicial review are similar to the issues raised in the present Application.

6In the King Complaint, the complainant alleged that he experienced discriminatory treatment on the basis of sexual orientation in the manner in which he was treated by various police officers on October 12, 2004. The only named respondent in the King Complaint is the TPSB.

7On December 4, 2008, the TPSB raised the argument in the King Complaint that it was not liable for the actions of individual police officers. Following the receipt of written submissions on this and other preliminary issues, the Tribunal issued its decision on May 15, 2009. The arguments raised and the Tribunals' decision at paragraphs 10 to 21 are quoted below:

The Board submits that at common law, a police officer is an independent officer of the Crown exercising original authority: Reference Re Power of a Municipal Council to Dismiss a Chief Constable or Other Police Officer Without a Hearing (1957), 1957 CanLII 110 (ON CA), 7 D.L.R. (2d) 222 (Ont. C.A.); New South Wales (Attorney-General) v. Perpetual Trustee Co., [1955] A.C. 457 (P.C.) at 489-490; R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565 at para. 27.

The Board is governed by the Police Services Act, R.S.O. 1990, c. P.15, as amended (the "PSA"), which both establishes and limits its powers and functions. The Board relies upon subsection 31(3) of the PSA, which provides that the Board may give orders and directions to the Chief of Police (although not with respect to specific operational decisions or with respect to the day-to-day operation of the police force), but not to other members of the police force, and no individual member of the Board can give orders or directions to any member of the police force. The Board further notes that police officers are no longer under any "duty of obedience" to the Board, as this provision was removed from the former Police Act. While the Board has the power to appoint the Chief of Police and individual police officers, thereafter the Board submits that its role is generally limited to setting priorities and making policies and guidelines.

In response, the Commission submits that the Board has a number of applicable statutory responsibilities under the PSA to ensure that police services are provided in accordance with the Code. The Commission notes that members of the police service are under the jurisdiction of the Board (PSA, s. 31(2)), and that it is the Board's responsibility to ensure the provision of adequate and effective police services in a municipality, which includes ensuring that police services are provided in accordance with the Code. The Commission further relies upon the fact that the Board is liable for torts committed by individual members in the course of their employment (PSA, s. 50(1)), and that the Board may be sued in its own name (PSA, s. 30(1)).

While the Commission acknowledges that the Board has no authority over the day-to-day operations of a police officer, the Commission takes the position that human rights matters, including the defence of a human rights complaint, are not mere operational or day-to-day matters. The Commission submits that safeguarding the fundamental rights guaranteed in the Code is at the very heart of the principles underscoring the Board's provision of adequate and effective police services in this province.

The Commission also relies upon prior decisions of this Tribunal, or its predecessor the Board of Inquiry, that have held police boards to be responsible for the actions of police officers, which include Nassiah v. Regional Municipality of Peel Police Services Board, 2007 HRTO 14 and Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), 4 CHRR D/1757 (Ont. Bd.Inq.). The Commission also relies upon the decision of the Court in M.E. v. Toronto Police Services Bd., 2008 CanLII 58428 (Ont.S.C.), in which it was held that the Board was vicariously liable for a police officer's actions in relation to a sexual assault by the officer, stating that the

Board attempts to foster an environment that encourages its residents to obey and trust police officers in the course of executing their duties. Moreover, the defendant Board is in the most propitious position to regulate the conduct of its employees. (at para. 96)

In this case, the specific acts complained of all relate to the actions of individual police officers, rather than to any direct actions or omissions by the Board. While it is correct that the Commission and the complainant are seeking various remedies that, if granted, may require actions on the Board's part, the seeking of these remedies in and of itself does not provide a basis upon which the Tribunal can impose liability on the Board. Rather, if liability on the part of the Board is found in relation to the impugned actions of the individual police officers, then in the remedy portion of the hearing a determination would need to be made as to what appropriate remedies flow from the specific findings made in this case in relation to liability.

As a result, in my view, the determination of the issue of the Board's liability in this case hinges upon the proper interpretation of s. 46.3(1) of the Code, which states in its relevant part:

For the purposes of this Act...any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation [or] unincorporated association...shall be deemed to be an act or thing done or omitted to be done by the corporation [or] unincorporated association...".

Whether the Board is a "corporation" or an "unincorporated association", the language of this provision is large enough to capture the Board as an organization. Further, in my view, a police officer clearly can be regarded as "an officer, official, employee or agent" of the Board, in light of the fact that police officers are appointed by the Board and in light of the Board's statutory responsibility to provide adequate and effective police services, notwithstanding that the Board does not have the power to specifically direct an individual police officer.

The parties are at odds as to whether a police officer is an "employee" of the Board. In this regard, I accept and adopt the observation of the adjudicator in Washington, supra where he states (at para. 29):

There are unique features about the relationship between municipal police services boards ("PSBs") and uniform officers that make it different from a traditional employment relationship. These arise because of the legal status of police officers and the particular disciplinary regime in Part V of the PSA. Nevertheless, PSBs are, in very many ways, like the officers' employer. The PSA provides that members of the police force are appointed by the PSB (s. 31(1)(a)), are "under the board's jurisdiction" (s. 31(2)), the board may "terminate a police officer's employment" during their probationary period (s. 44(3)) and may discharge a member because accommodation of a disability may result in undue hardship (s. 47). Under s. 126(3), PSBs bargain with police associations to reach agreements "dealing with the remuneration, pensions, sick leave credit gratuities and grievance procedures of the members of the police force and, subject to section 126, their working conditions". They also establish guidelines for dealing with public and internal complaints against members of the force under Part V (s. 31(1)(i)). The PSB is the equivalent of an employer for most purposes, and certainly has an important role in relation to the discipline and complaints process.

I also agree with the submission made by the Commission that the term "employment" in the Code should be broadly and liberally construed in order to best achieve the Code's purposes and objectives: see Pannu v. Prestige Cab Ltd., 1986 CanLII 6476 (AB CA), [1986] A.J. No. 1717 (C.A.), at para. 15. In Pannu, the Court states that the terms "employed" and "employment" in human rights legislation should not be narrowly or technically construed, but should be read and understood in their broader or common-day usage in the sense of being "utilized".

In my view, in order to find that any acts or omissions of an individual police officer were committed in the course of her or his "employment", it is not necessary for me to find that the police officer is an "employee". To restrict the interpretation of s. 46.3(1) in this fashion would render superfluous the other identifiers of persons whose actions or omissions can form the basis of deemed liability under that provision, namely officers, officials and agents, who may not, technically speaking, be "employees". Rather, in my view, the term "employment" should be broadly and liberally construed to mean that the person, whether officer, official, employee or agent, was acting in the course of her or his duties or responsibilities as assigned to her or him by the organization. I also note that, in the context of imposing liability upon the Board for torts committed by members of a police service, which would include police officers, the PSA refers to torts committed "in the course of their employment", which is the same language as appears in s. 46.3(1) of the Code. This further reinforces that the phrase "in the course of their employment" is being used in a broader fashion than just restrictively applying to an employee of the Board.

As a result, I am not prepared to dismiss the Complaint at this stage of the proceeding on the basis that the Board cannot be held liable for the actions of the individual police officers that are at issue in this case. Whether or not I make any finding of liability against the Board at the end of the day, of course, will depend upon my consideration of all of the evidence received at the hearing.

APPLICABLE LEGAL PRINCIPLES

8In general, an application for judicial review does not operate as a stay of a Tribunal decision. In this case, the TPSB has not actually filed for judicial review of a decision of the Tribunal in this matter, but rather, is seeking a stay because of a judicial review in another matter. Nonetheless, 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.

9This test 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 adopt and agree with the comments made by the Tribunal in Washington v. Toronto Police Services Board, 2009 HRTO 640 at paragraphs 8 to 12 on this point:

It 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.

The 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.

These 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.

Most 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.

In 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

10I 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. I agree that the issue of whether the TPSB is liable under the Code for the actions of police officers is a serious issue to be adjudicated on the judicial review.

11On the issue of irreparable harm, the respondents made two arguments. First, they assert that there will be irreparable harm in incurring the costs of attending the present hearing when they might, at the end of the day be found not liable for the actions of Mr. Shaw. Second, they raise the possibility of inconsistent findings by this Tribunal and the courts if the King judicial review is successful.

12I am not persuaded that the TPSB will experience any irreparable harm if this matter proceeds. At this stage, it appears to me that the Application relates to an event which occurred on March 9, 2005 and that the evidence into this matter should take no more than one day. Even if the matter should proceed for further additional days, I find that the cost of attending a few days of hearing is not significant. The possibility of inconsistent decisions of this Tribunal and the courts is likewise not likely to cause any harm which cannot be resolved when and if the courts determine this issue.

13Turning to the balance of convenience, the respondents emphasize that the outcome of the King judicial review will provide guidance in all future cases where the TPSB is named as a respondent and there is no prejudice to the other parties.

14In my view, the balance of convenience strongly favours hearing the evidence of the parties in this matter as soon as possible. Unlike the legal issues raised by the TPSB, the factual disputes raised by the parties will likely be harmed by any further delay. Through no fault of the parties that I am aware of, this matter, which arose in March 2005 and was brought to the Commission in July 2005, has been delayed considerably already. I find that the balance of convenience favours refusing the stay.

15I should also address the fact that the TPSB has been extremely dilatory in raising this matter. The Complaint was originally filed with the Commission on July 11, 2005. When the respondent TPSB filed its response with the Commission on November 10, 2005 it did so on behalf of the TPSB and Michael Shaw. It did dispute its liability for the actions of Michael Shaw. When the TPSB filed its response to the Application to this Tribunal on December 1, 2008, it did so on behalf of all the respondents. Neither the TPSB nor William Blair disputed their liability for the actions of Michael Shaw at that time. Although the TPSB raised the issue of its liability for the actions of police constables in the King Complaint on December 4, 2008, it did not raise this issue in the present Application at that time. On February 27, 2009, William Blair indicated for the first time that he was separately represented. The first time the TPSB raised the question of whether it is liable for the actions of Michael Shaw in this Application was on May 1, 2009 in its Statement of Additional Facts, which was filed two weeks after the deadline established by the Tribunals' Notice of Case Resolution Conference and Required Preparation. At that time, counsel for the TPSB still represented Mr. Shaw. On May 15, 2009, counsel for William Blair advised that they were henceforth representing Mr. Shaw as well as Mr. Blair and indicated that they would be making a request at the hearing to have William Blair removed as a party.

16The first time the TPSB sought to defer, adjourn or stay these proceedings was on May 28, 2009, seven days before the scheduled hearing in this matter. Even if the elements for obtaining a stay had otherwise been met, I would have refused the stay on the basis that the TPSB has delayed unreasonably in raising this request.

17Accordingly, I conclude that the balance of convenience strongly tends towards hearing the evidence in this matter.

Deferral pending the Judicial Review Application

18In the alternative, the TPSB asked the Tribunal to exercise its discretion to defer the present Application. For the reasons set out above, I decline to defer this Application pending the judicial review of a decision of the King decision.

Adjournment Request

19In the further alternative, the TPSB asked the Tribunal to adjourn the hearing in order to give the other parties time to respond to its request for a stay or deferral. In light of my decision, no adjournment is required on this basis.

Case Management

20As indicated above, respondent William Blair filed a request on May 15, 2009 indicating that he intends to raise various preliminary matters at the commencement of this hearing. In order to ensure the orderly conduct of this hearing on June 4, 2009, I will address how these preliminary matters will be handled.

21Respondent Blair intends to make a preliminary request dismissing the Application against him on the basis that there are no allegations in the Application against him. No written submissions have been provided. It appears that William Blair, Chief of Police and the TPSB both take the position that they are not liable for the actions of police constable William Shaw. In my view, and in light of my power to determine the order in which issues may be heard (Rule 4.3(3)), I have decided that the issue of liability of the respondents William Blair and the TPSB will be determined after I have heard the evidence of what transpired on March 9, 2005 and the evidence, if any, of the respective roles of the Chief of Police and the TPSB in overseeing the conduct of police constable Shaw.

22Respondent Blair has asked for clarification on whether the subject matter of the present Application encompasses events subsequent to the filing of the Complaint, and in particular, the investigation by Lawrence Sager into the applicant's Police Services Act complaint. I find that it is appropriate to direct the parties to be prepared to address the appropriate scope of the present Application at the commencement of the hearing.

23Respondent Blair has requested that the Tribunal bifurcate this hearing to determine the issue of liability separately from the issue of remedy, if any. I find that it is appropriate to direct the parties to be prepared to address the issue of whether this proceeding should be bifurcated at the commencement of the hearing.

24The parties are directed to attend the hearing on June 4, 2009 with their witnesses prepared to address the merits of the Application.