HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Greg Goodridge

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board, Anthony Piazza and

Maria Perry

Respondents

-and-

Toronto Police Association

Intervenor

interim DECISION

Adjudicator: David A. Wright

Date: January 27, 2009

Citation: 2009 HRTO 94

Indexed as: Goodridge v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Greg Goodridge, Complainant ) On His Own Behalf

Ontario Human Rights Commission ) Christine Elwell, Counsel

Toronto Police Services Board, ) Robert J. Baldwin, Anthony Piazza, and Maria Perry ) Counsel Respondents )

William Blair, Chief of Police, ) Sie-Wing Khow, Toronto Police Service ) Counsel Respondent to Request for Order During ) Proceedings )

Her Majesty the Queen in Right of Ontario as ) Brian Whitehead, Represented by the ) Counsel Ministry of Community Safety and ) Correctional Services, ) Respondent to Request for Order ) During Proceedings ) )

Toronto Police Association, ) David Butt, Proposed Intervenor ) Counsel

[1] Greg Goodridge filed a complaint with the Ontario Human Rights Commission (the “Commission”) against the Toronto Police Services Board (the “Board”) and two Toronto Police Service members, which the Commission referred to the Tribunal. The Commission and Mr. Goodridge have made a request that the Tribunal order production of certain records regarding the personal respondents, which is being heard in writing. The Toronto Police Association (the “Association”), which is the bargaining agent for members of the Service, seeks to intervene in order to make submissions to the Tribunal on the production request, which it argues may have an impact on its members.

[2] Mr. Goodridge asks that I recuse myself from hearing this case. He argues that there is a reasonable apprehension of bias because I acted on behalf of the Association when I worked as a lawyer prior to my appointment as a Vice-Chair of the Tribunal in March of 2007. I disclosed this information to the parties when the Association made its request to intervene.

BACKGROUND

[4] I was appointed to the Tribunal in March of 2007. Prior to that I was a lawyer at the Toronto law firm of Green and Chercover, where I practiced primarily labour, employment, human rights and administrative law on behalf of a variety of clients including several police associations. My institutional clients had various, sometimes opposing positions on legal issues, including human rights. I was an associate, which means that I was an employee of the firm, rather than a partner.

[5] The Toronto Police Association was a client and I represented it on various files over a period of about six years, generally as a junior lawyer working with a more senior partner. I did not represent the Toronto Police Association or any of its members before this Tribunal or the Ontario Human Rights Commission. I have never represented nor do I know any of the individual officers who are respondents to this Application.

[6] The Tribunal has a Code of Professional and Ethical Responsibilities (“Code of Responsibilities”) for its members, which is posted on its web site at http://www.hrto.ca/NEW/pdf/Code_of_Conduct.pdf. Sections 15 and 16 read as follows:

A member shall not mediate or adjudicate in any proceeding, or participate in Tribunal discussions with respect to any matter, if s/he believes that a reasonable person could believe that his/her impartiality may be affected by a personal interest or by a relationship with one of the parties, a witness, or a representative.
A member will not normally be eligible to conduct a mediation or adjudication involving a party or representative with whom s/he was formerly in a significant professional relationship until a period of one year has elapsed from the termination of the relationship.

MR. GOODRIDGE’S SUBMISSIONS

[7] Mr. Goodridge argues that he should have been informed of the fact that I had represented the Association when the Tribunal proceedings began, since the case involves members of the Association as respondents. He states that my failure to do so is “troublesome and only further suggests a conflict and possible problems”.

[8] Mr. Goodridge makes several points in support of his argument that the fact that I represented the Association gives rise to a reasonable apprehension of bias. He expresses concern that I may know or be friends with police officers in general or the individual respondents. He also argues that in the course of representing the Association, I likely developed sympathetic feelings or bias toward police, and therefore I have a “police perspective”. He alleges that the Toronto Police Association has a reputation for aggressively representing its members. He states that the Association “is known for bias towards the police and they would not, do not hire normal lawyers to represent them but pro-police lawyers”. Finally, he suggests that the fact that I raised the issue with the parties suggests that I have recognized a conflict of interest or reasonable apprehension of bias.

THE CHIEF’S SUBMISSIONS

[9] The Chief opposes recusal, noting that I have complied with the Code of Responsibilities. The Chief argues that there is a difference between providing legal services to a client and personally identifying with that client’s interests, noting that counsel has a duty to be objective in providing advice to clients. The submissions note that it is common for adjudicators to be appointed from among counsel who practiced in the area over which they subsequently adjudicate, and argue that this assists in assuring “just and contextually sensitive adjudication”. The Chief argues that the “cooling off period” in the Code of Responsibilities reflects common practice in adjudicative fora of all types and strikes a balance between ensuring relevant practice experience and the appearance of being too close to former clients.

ANALYSIS: REQUEST FOR RECUSAL

Reasonable Apprehension of Bias

[10] The issue to be determined is whether Mr. Goodridge has demonstrated that there is a reasonable apprehension of bias if I hear and determine this case. The legal principles to be applied are well-established. De Grandpré J. wrote in [Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC)](https://www.minicounsel.ca/scc/1976/2), [1978] 1 S.C.R. 369 at p. 394 that:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

Disclosure

[11] I address first Mr. Goodridge’s argument that the fact of my disclosure suggests that there is a reasonable apprehension of bias. There is a difference between the disclosure of a potential conflict by an adjudicator and the determination of whether there is, in law, a reasonable apprehension of bias. I adopt the reasoning of the Tribunal in [Toneguzzo v. Kimberly-Clark, 2005 HRTO 9](https://www.minicounsel.ca/hrto/2005/9) at para. 9:

There is no merit in the argument that the mere fact that I revealed my involvement in the class action suit against Manulife establishes a reasonable apprehension of bias. On occasion, a decision-maker will provide information of this kind knowing full well that it does give rise to a reasonable apprehension of bias in order to ascertain whether the parties are prepared to waive that impediment and consent to the participation of the adjudicator. However, that is not the only basis on which adjudicators will feel obliged to provide such information to the parties. It is normally considered incumbent on adjudicators to draw to the attention of the parties any relevant information that might possibly give rise to a concern. That then provides the parties (or any one of them) with the opportunity to both express any such concern and make submissions to the adjudicator as to why that concern amounts in law to a reasonable apprehension of bias. It is then for the adjudicator to decide on the basis of the submissions whether, in her or his judgment, a reasonable apprehension of bias has been established. That was the situation that I foresaw in this instance when I apprised the parties of my involvement in the class action suit. I was not acknowledging the existence of a reasonable apprehension of bias but providing an opportunity for that to be put in issue and dealt with on the basis of submissions.

[12] Mr. Goodridge also states that I should have disclosed my representation of the Association when I began adjudicating the case, rather than when the Police Association sought to intervene, because the individual respondents are members of the Association. I disclosed my prior representation of the Association at the point that it sought to intervene in the proceeding. Until then, there was no former client appearing before me and, in my view, no need to provide the parties with the opportunity to make submissions on a possible reasonable apprehension of bias. The Association, as an entity, is distinct from its members. The involvement of the Association itself, as an intervenor, raised the possibility of reasonable concerns and it therefore was at this time that I disclosed my prior professional relationship to the parties. My failure to do so when no former client was involved does not establish a reasonable apprehension of bias.

Is There a Reasonable Apprehension of Bias?

[13] I wish to emphasize at the outset that I understand Mr. Goodridge’s concern, and do not suggest that it is trivial or inappropriate for him to have made this request. For various reasons, which are supported by studies and statistics, many members of racialized communities in particular are concerned about their relationships with and treatment by the justice system and police, and this has been recognized by the courts and this Tribunal: see, for example [R. v. Spence, 2005 SCC 71](https://www.minicounsel.ca/scc/2005/71), [Nassiah v. Peel (Regional Municipality) Police Services Board, 2007 HRTO 14](https://www.minicounsel.ca/hrto/2007/14), and Sinclair v. London (City) at paras. 16 and 17. It is appropriate to take judicial notice of the fact that the Toronto Police Association has taken strong positions on various issues, and understandable that Mr. Goodridge was concerned by the disclosure that the Association was a former client of the adjudicator before whom he is appearing in a case in which he alleges serious police misconduct.

[14] However, my analysis of the legal question of whether there is a reasonable apprehension of bias as a result of my work as a lawyer before I was appointed to the Tribunal must be based upon the law on reasonable apprehension of bias, the full context, and the question of what a reasonable person who has fully thought the matter through would think. It must be done with a full appreciation of the relevant factors, including the nature of administrative tribunals, the role of a lawyer, and the meaning of impartiality.

[15] As noted by the Supreme Court of Canada in [Wewaykum Indian Band v. Canada, 2003 SCC 45](https://www.minicounsel.ca/scc/2003/45), [2003] 2 S.C.R. 259, at para. 57, impartiality is the fundamental qualification for a judge, and this, of course, is true for Tribunal adjudicators. Impartiality, however, is not an absence of prior experience with the issues in question, but rather means having an open mind which is open to persuasion (Wewaykum, supra, at para. 58). There is a presumption of impartiality and the onus is on the person seeking disqualification to establish a reasonable apprehension of bias.

[16] Members of this Tribunal have expertise in human rights. Under s. 32 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, members must be selected through a competitive process that takes into account “Experience, knowledge or training with respect to human rights law and issues”, “Aptitude for impartial adjudication” and “Aptitude for applying the alternative adjudicative practices and procedures that may be set out in the Tribunal rules”. One of the ways in which such experience may be obtained is through representation of clients as a lawyer. Various members of this Tribunal have had careers prior to their appointment to the Tribunal representing clients such as equality-seeking groups, employers, unions, human rights complainants, respondents, human rights commissions and employees. Members are expected to and do impartially adjudicate cases involving litigants who have perspectives for which they may have advocated in the past.

[17] Lawyers are ethically bound to make the best possible arguments on behalf of their clients, whether or not they reflect the lawyer’s personal views. Therefore, the fact that a person acting as a lawyer advocated a position does not mean that he or she agrees with it. Moreover, having existing, even publicly expressed personal views prior to appointment does not generally lead to a reasonable apprehension of bias. Justice Cory of the Supreme Court of Canada put it this way in [R. v. S. (R.D.), 1997 CanLII 324 (SCC)](https://www.minicounsel.ca/scc/1997/324), [1997] 3 S.C.R. 484 at para. 119:

The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial

does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.

True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.

(Canadian Judicial Council, Commentaries on Judicial Conduct (1991), at p. 12.)

It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear. The sound belief behind the encouragement of greater diversity in judicial appointments was that women and visible minorities would bring an important perspective to the difficult task of judging. See for example the discussion by the Honourable Maryka Omatsu, "The Fiction of Judicial Impartiality" (1997), 9 C.J.W.L. 1. See also Devlin, supra, at pp. 408-9.

In the same case, McLachlin and L’Heureux-Dubé JJ. wrote as follows:

As discussed above, judges in a bilingual, multiracial and multicultural society will undoubtedly approach the task of judging from their varied perspectives. They will certainly have been shaped by, and have gained insight from, their different experiences, and cannot be expected to divorce themselves from these experiences on the occasion of their appointment to the bench. In fact, such a transformation would deny society the benefit of the valuable knowledge gained by the judiciary while they were members of the Bar. As well, it would preclude the achievement of a diversity of backgrounds in the judiciary. The reasonable person does not expect that judges will function as neutral ciphers; however, the reasonable person does demand that judges achieve impartiality in their judging.

[18] Thus, Mr. Goodridge’s concern that I may have a “police perspective” as a result of having represented police or the Association in the past does not give rise to a well-founded argument based upon reasonable apprehension of bias.

[19] A different issue, however, is whether the fact that the Association is a former client creates a reasonable apprehension of bias in this case, in which it has sought to intervene. In Committee for Justice and Liberty, supra, Laskin C.J. implicitly approved the practice of a “cooling off period” as follows at p. 388:

Lawyers who have been appointed to the Bench have been known to refrain from sitting on cases involving former clients, even where they have not had any part in the case, until a reasonable period of time has passed.

[20] The Tribunal, in its Code of Responsibilities, has determined that the appropriate minimum “cooling off” period is one year. However, this does not determine the question of reasonable apprehension of bias. I must determine whether, in this case, as a result of the particular nature of my relationship with the Association when I was in practice, there are circumstances that give rise to a reasonable apprehension of bias. In my view, there are none. I take into account, in particular, that I was a junior lawyer on most files on which I worked involving the Association, and that I did not do work for the Association on a particularly large number of files or over a long period of time. Therefore, my relationship with the Association was not so special or close that a reasonable person would conclude that I cannot impartially adjudicate a case in which it is an intervenor after the standard one-year cooling-off period.

[21] Accordingly, the request that I recuse myself is dismissed.

The Association’s Request to Intervene

[22] The Association sought to intervene in similar circumstances in [Macanovic v. Toronto Police Services Board, 2009 HRTO 19](https://www.minicounsel.ca/hrto/2009/19). The Tribunal stated:

The Toronto Police Association (TPA) has requested leave of the Tribunal to intervene, for the purpose of making submissions on the production of the above documents. The complainant and the Commission object to the participation of the TPA. The respondent and the Chief of Police consent to the request.

Given the nature of the issues, the potential impact on the members of the TPA and the TPA’s ability to provide the perspective of its members on these issues, I find it appropriate to grant the request to intervene on the limited basis described.

[23] I adopt the Tribunal’s reasoning in Macanovic and grant the Association’s request to intervene, limited to making submissions on the production issues.

NEXT STEPS

[24] I bring to the parties’ attention the decision released by the Supreme Court of Canada on January 16, 2009 in [R. v. McNeil, 2009 SCC 3](https://www.minicounsel.ca/scc/2009/3), which may have a bearing on the issues in the production request. The parties who have already filed their argument will be given a chance to make submissions on this case, and the Commission and the complainant shall have an opportunity to reply to the argument of the respondents and the Toronto Police Association, in accordance with the schedule below.

ORDER

[25] The Tribunal orders as follows:

The request that I recuse myself is dismissed.
The Toronto Police Association is granted leave to intervene, limited to the right to make written submissions on the production request. It shall file its submissions by February 5, 2009.
By February 5, 2009, the respondents to the Request for Order may make submissions on the application of R. v. McNeil.
The complainant and the Commission may reply to the submissions of the other parties by February 12, 2009.

Dated at Toronto, this 27th day of January, 2009.

“Signed By”

David A. Wright

Vice-chair

Goodridge v. Toronto Police Services Board, 2009 HRTO 94

Case Summary

HUMAN RIGHTS TRIBUNAL OF ONTARIO

[6] The Tribunal has a Code of Professional and Ethical Responsibilities (“Code of Responsibilities”) for its members, which is posted on its web site at http://www.hrto.ca/NEW/pdf/Code_of_Conduct.pdf. Sections 15 and 16 read as follows:

[18] Thus, Mr. Goodridge’s concern that I may have a “police perspective” as a result of having represented police or the Association in the past does not give rise to a well-founded argument based upon reasonable apprehension of bias.

[21] Accordingly, the request that I recuse myself is dismissed.

[22] The Association sought to intervene in similar circumstances in [Macanovic v. Toronto Police Services Board, 2009 HRTO 19](https://www.minicounsel.ca/hrto/2009/19). The Tribunal stated:

[23] I adopt the Tribunal’s reasoning in Macanovic and grant the Association’s request to intervene, limited to making submissions on the production issues.

ORDER

[25] The Tribunal orders as follows: