HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy King

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: June 8, 2009

Citation: 2009 HRTO 786

Indexed as: King v. Toronto Police Services Board

WRITTEN SUBMISSIONS FROM

Ontario Human Rights Commission ) Christine Elwell

Toronto Police Services Board ) Rosanne Giulietti

Introduction

1This Interim Decision addresses two matters: first, a request for a stay of this proceeding pending determination of an application for judicial review of my May 15, 2009 Interim Decision, 2009 HRTO 644, as it relates to my denial of the respondent’s request to dismiss the complaint on the basis that the respondent is not liable for the actions of individual police officers; and second, a request by the Commission to add the Chief of Police as an additional party respondent.

BACKGROUND

2The complaint in this matter was filed on October 12, 2004 and alleges that the complainant experienced discrimination because of sexual orientation in the context of an incident involving the police on or about July 25, 2004, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In its most basic terms, the complaint alleges that Mr. King was subjected to inappropriate comments and conduct because of his perceived sexual orientation when he was stopped and ultimately arrested for the offence of being intoxicated in public contrary to the Liquor Licence Act, R.S.O. 1990, c. L.19, as amended, and in relation to how he was treated when he was booked and detained in a holding cell at the police station that night.

3This complaint was referred by the Commission to the Tribunal by letter dated December 18, 2007. The hearing in this matter is scheduled to proceed on June 16, 17 and 18, 2009.

4On May 29, 2009, counsel for the respondent wrote to the Tribunal to request a stay of the proceeding pending disposition of the judicial review application filed on May 27, 2009. In light of the short time prior to the scheduled hearing, the Tribunal requested submissions from the Commission and the complainant by June 4, 2009 and any reply from the respondent by June 5, 2009.

5The Commission and the complainant filed their submissions opposing the stay request on June 3, 2009. In addition, the Commission seeks an order adding the Chief of Police as an additional respondent to this proceeding. In light of the disposition of that latter request, it was not necessary to request submissions from the respondent or the Chief of Police on that issue.

6The respondent filed its reply submissions with regard to its stay request on June 5, 2009.

The Respondent’s request for a stay pending judicial review

7The starting point for any analysis of a request for a stay of a Tribunal order pending the determination of a judicial review application is Rule 94 of the Tribunal’s Rules of Practice, which provides in its relevant part:

An application for judicial review under the Judicial Review Procedure Act is not an appeal within the meaning of Rule 93 and does not operate as a stay of a decision of the Tribunal unless the Tribunal or a court rules otherwise.

8As a result, a proceeding before this Tribunal will proceed even if an application for judicial review has been filed, unless a stay is sought from and granted by either the Tribunal or the court.

9There is no dispute as to the basic elements of the test for granting a stay pending judicial review. The party seeking the stay is required to:

1. demonstrate that there is a serious issue to be tried;
2. convince the Tribunal that it will suffer irreparable harm if the relief is not granted; and
3. persuade the Tribunal that the balance of convenience favours the granting of the stay;

Brockie v. Brillinger (No. 1) (1999), CHRR Doc. 99-119 (Ont. Bd. Inq.).

Is there a serious issue to be tried?

10The first question is whether the respondent has demonstrated that there is a serious issue to be tried. It has been determined that the threshold for meeting this element of the test is a low one, and that a prolonged examination of the merits is generally neither necessary nor desirable. Once satisfied that the issue raised is neither vexatious nor frivolous, the Tribunal should proceed to consider the second and third elements of the test, even if it is of the opinion that the requestor is unlikely to succeed on judicial review: see RJR -- MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.

11In this case, the Commission has conceded that the respondent has met this aspect of the test. However, the Commission takes the position that the stay request is premature on the basis that the respondent ought to have requested that the Tribunal reconsider its decision pursuant to sections 45.7 and 45.8 of the Code. However, reconsideration is only available pursuant to the Tribunal’s Rules from a final decision: see Rule 98. The May 15, 2009 Interim Decision is not a final decision, as no final determination has been made as to whether the respondent is in fact liable for any violation of the Code. As stated at para. 21, this determination can only be made after my consideration of all of the evidence received at the hearing.

Will the respondent suffer irreparable harm?

12The respondent asserts that it will suffer irreparable harm if the hearing proceeds on the basis that to require the respondent to proceed through a hearing where it may not be a proper party and will not know the extent to which liability may be found against it would result in irreparable harm. The respondent also asserts that, if a stay is not granted, it will incur legal costs in preparing for and attending the hearing which cannot be recovered.

13I am not persuaded that the respondent will experience any irreparable harm if the hearing in this matter proceeds. This proceeding relates to an incident which occurred on July 25, 2004 and the hearing into this matter is only scheduled for three days, all of which may not be necessary in order to hear the evidence and submissions of the parties. I find that the cost of attending a few days of hearing is not significant enough to amount to irreparable harm.

14At the conclusion of the hearing, after consideration of all of the evidence, the respondent may or may not be found liable for any violation of the Code. If the respondent is found liable, it would have the ability to request reconsideration of the Tribunal’s decision in accordance with the Tribunal’s Rules and, if its reconsideration request were denied, would then have the ability to pursue any judicial review that it deemed necessary on the basis of a full factual record.

15The respondent further takes the position that, if the hearing is permitted to proceed, the judicial review would be rendered moot and that this also constitutes irreparable harm. To the contrary, the judicial review would only be rendered moot if, after the hearing is completed, the respondent is found not to be liable for any violation of the Code. If, on the other hand, the respondent is found liable, then the judicial review application could proceed to address the issue raised by the respondent, but this time on the basis of a full factual record rather than on the basis of a preliminary decision which only denied the respondent’s request that the complaint be dismissed and where no final determination as to the respondent’s liability has been made.

16Finally, the respondent submits that subjecting the parties to the expense and time of a three day hearing when the fundamental question of the identity of the proper respondent is before the Court by way of judicial review would call the proper administration of justice into disrepute, which the respondent asserts constitutes not only irreparable harm to it but to the public interest.

17The issue of whether the respondent bears liability in this matter is an issue that is squarely within this Tribunal’s jurisdiction, and will only be finally determined by the Tribunal after a full hearing. Further, the public interest in the administration of justice is served by the fair, just and expeditious resolution of human rights complaints. The incident in this matter dates back almost five years now. If a stay were granted, there is no assurance as to when the judicial review application would be heard or how quickly the Court would be able to render a decision. Further, whatever decision is made by the Court, the parties could then seek leave to appeal the decision resulting in even further delays. In contrast, if the stay is denied, the hearing will proceed and the evidence will be heard and findings made which will serve to preserve the factual record, so that any judicial review application, if still required, could continue on this basis.

18For all of these reasons, I find that the respondent has not satisfied the requirement at this stage of the proceeding that it demonstrate that not ordering a stay would cause irreparable harm to the respondent. While I could dispose of the respondent’s request on this basis alone, I will nonetheless proceed to consider the balance of convenience.

Does the balance of convenience favour granting the stay?

19The final element of the test requires me to consider whether the balance of convenience favours granting the stay. In making this determination, I need to consider not only the effect that granting a stay would have on the parties before the Tribunal, but also any impact on the public interest: see RJR -- MacDonald Inc., supra.

20This Tribunal has repeatedly held that a stay is an extraordinary remedy, and that the party requesting it must clearly demonstrate that the balance of convenience overwhelmingly favours the granting of it: see Fiorini v. DiPoce Management Ltd. [1997] O.H.R.B.I.D. No. 4 at para. 16; McKinnon v. Ontario (Ministry of Correctional Services) 2005 HRTO 48 at para. 8; Snow v. Honda of Canada Manufacturing, 2007 HRTO 45 at para. 71.

21Further, in considering the balance of convenience, it must be remembered that administrative tribunals are designed to provide for the expeditious resolution of disputes and that delays or interruptions to that process are to be avoided, and that delays or interruptions occasioned by judicial review proceedings should be avoided except in “exceptional circumstances”: Moffatt v. Oswin and Kinark Child and Family Services, (BI 0056-95) (unreported decision dated December 13, 1995) at para. 12; Iness v. Caroline Co-operative Homes Inc. (No. 3) (2001), CHRR Doc. 01-236 (Ont. Bd.Inq.) at para. 18; McKinnon, supra, at para. 5; Ontario College of Art v. Ontario (Human Rights Commission) (1993) 1993 CanLII 3430 (ON CTGDDC), 11 O.R. (3d) 798 (Div. Ct.); Cybulski v. Ontario (Human Rights Commission) (2005) 2005 CanLII 45194 (ON SCDC), 206 OAC 216 (Div. Ct.).

22The respondent relies upon the decision of the Divisional Court in UFCW Canada/United Food and Commercial Workers International Union et al v. Roland Farms Limited (2008), 2008 CanLII 6639 (ON SCDC), 77 Admin L.R. (4th) 6 to support its position that the determination of party status at the outset of a proceeding is an issue that falls within the kind of “exceptional circumstances” where the Court will allow a judicial review application to proceed prior to the conclusion of a proceeding before an administrative tribunal. In this regard, I note that the Roland Farms decision addressed a situation where an individual was added as a party to a proceeding without being afforded notice or an opportunity to be heard and where there also were allegations of bias raised against the tribunal. I also note that it was estimated that the hearing before the tribunal in that case would extend over some 20 to 25 days. In my view, these circumstances are distinguishable from the instant case, where the respondent has been named as a party to the proceeding from the outset and was afforded full opportunity to make submissions on its request to dismiss the proceeding against it, and where the scheduled hearing is only expected to take three days at most.

23The respondent submits that there is no evidence of prejudice to any of the parties if the stay is granted, and that it is only seeking a stay of several months, which may be reduced if the Court orders an expedited hearing. As already noted above, it is not at all clear that any further delay if a stay were granted pending judicial review would be only for a few months, particularly in light of any consequent appeals.

24Further, this matter, which arose in July 2004 and was brought to the Commission in October 2004, has been delayed considerably already. Unlike the legal issues raised by the respondent, the factual disputes raised by the parties will likely be harmed by any further delay. In my view, the balance of convenience strongly favours hearing the evidence of the parties in this matter as soon as possible.

25For all of these reasons, the respondent has not satisfied me that the balance of convenience favours granting the stay requested.

26Accordingly, the hearing will proceed as scheduled, unless a stay is obtained from the Court prior to the commencement of the hearing.

The Commission’s request to add the Chief of Police

27The Commission seeks to add the Chief of Police as an additional party respondent to this proceeding on the basis that, pursuant to the deemed liability provision contained in section 46.3(1) of the Code, he violated the Code when he authorized and/or permitted his officers to engage in the conduct at issue in this proceeding.

28This argument cannot succeed for two reasons. First, s. 46.3(1) of the Code imposes deemed liability on “a corporation, trade union, trade or occupational association, trade union, trade or occupational association, unincorporated association or employees’ organization”. The Chief of Police is an individual person and is none of the entities listed in that provision. Accordingly, s. 46.3(1) affords no basis upon which to impose deemed liability on the Chief of Police.

29Second, while the Commission asserts that the Chief of Police authorized and/or permitted the individual officers to engage in the impugned conduct, no factual foundation is provided by the Commission to support this assertion.

30Accordingly, the Commission’s request to add the Chief of Police as an additional party respondent is denied.