Durrell Claybourn v. Toronto Police Services Board and Toronto Police Service, 2010 HRTO 1575

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Durrell Claybourn

Applicant

-and-

Toronto Police Services Board and Toronto Police Service

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: July 20, 2010

Citation: 2010 HRTO 1575

Indexed as: Claybourn v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Durrell Claybourn, Applicant ) Bruce Best, Counsel

)

)

Toronto Police Service ) Sie-Wing Khow, Counsel

)

1This is an Application alleging discrimination in respect to services, goods and facilities on the basis of race, colour, sexual orientation and age contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant’s specific allegations are in relation to how he was treated by four Toronto Police Service (“TPS”) officers when he was stopped and questioned on two separate occasions; on July 18, 2007 and September 13, 2007. This Interim Decision deals with the issue of whether the substance of the Application has already been appropriately dealt with in another proceeding.

2This a case in which the Application has been proceeding through the Tribunal process. It was already scheduled for a hearing which was postponed in order to address to a Request for an Order During Proceedings filed by the applicant’s new counsel to add the Toronto Police Services Board (“TPSB”) as a respondent and seeking further production from the respondents. In an Interim Decision dated November 3, 2009, 2009 HRTO 1863 (the “November 2009 Interim Decision”), the Tribunal determined that the TPSB should be added as a respondent. The Tribunal further directed the respondents to respond to the applicant’s outstanding Request for production. At the present time there is still an outstanding production issue and an issue regarding a possible Request to intervene by the Toronto Police Association (“TPA”). This Interim Decision will also address these two issues.

3However, there is a further, more immediate issue that was, in fact, raised in the original Response filed by the TPS. The TPS requested that the Tribunal dismiss the Application because another proceeding had appropriately dealt with the substance of the Application. This remains an outstanding issue that needs to be addressed given it is an issue related to whether the Tribunal is precluded from even considering the merits of the Application. The Response states that the applicant filed complaints about each of the incidents described in his Application under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”) and that these complaints were investigated by the TPS which determined that there was no evidence to support the applicant’s allegations in either case. The applicant subsequently requested reviews of these decisions by the Ontario Civilian Commission on Police Services (“OCCPS”) which upheld the TPS decisions as reasonable. Of note, the applicant has filed with the Tribunal copies of the applicant’s complaints under the PSA, the investigation reports of the TPS, the formal decisions by the TPS and the subsequent decisions of the OCCPS.

Section 45.1 of the Code

4Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

5The Tribunal’s jurisprudence has suggested that section 45.1 should be considered in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application. The purpose of section 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.

6The Tribunal has determined in its decisions in Qui v. Neilson, 2009 HRTO 2187, and Pamula v. Ontario Provincial Police, 2010 HRTO 73, that the public complaints process pursuant to the PSA including the independent review by the OCCPS does constitute a proceeding within the meaning of section 45.1 of the Code even when the OCCPS does not order a hearing. The Tribunal has determined in a recent decision, A.F. v. Durham Regional Police Services Board, 2010 HRTO 1508, that an investigation and decision of a police force’s professional standards unit under the PSA with no request for a review to the OCCPS constitutes a proceeding within the meaning of section 45.1 of the Code.

7In both Qui and Pamula the Tribunal was also satisfied that the process under the PSA appropriately dealt with the substance of the Applications before them. As stated in Qui:

This leaves the question of whether the allegations raised in the human rights complaint were “appropriately dealt with”. The question does not require me to make a finding as to whether or not I agree with the findings of the police investigation and OCCPS review. Rather, the question for me is whether the police investigation and OCCPS review were conducted using a fair process in which the applicant was afforded an opportunity to present his allegations and supporting evidence and where there is nothing on the face of the police investigation report or OCCPS review to indicate that these bodies failed to recognize human rights principles in reaching the determinations that they did (para. 40).

8Given that the applicant’s position on the relevance of section 45.1 to the present Application has not been established the applicant is requested to deliver to the respondents and file with the Tribunal written submissions on whether section 45.1 of the Code applies. The applicant will have 21 days from the date of the issuing of this Interim Decision to file his submissions. The respondents may reply to the applicant’s submissions within 14 days after receiving them. Any reply submissions must be delivered to the applicant and filed with the Tribunal. The parties are asked to address the applicability of Qui and Pamula to the circumstances of this Application.

Request for Production

9In the November 2009 Interim Decision the Tribunal directed the respondents to respond to the applicant’s outstanding Request for production. Counsel for the TPS responded by indicating that the Chief of Police had authorized the production of all arguably relevant documents related to the incidents of July 18, 2007 and September 13, 2007 including the notes of the officers involved. However, counsel indicated that documents or records related to any prior complaints made against the four police officers identified by the applicant were not being produced as it was not accepted that these materials were arguably relevant to the allegations raised in the Application. Counsel further argued that the Tribunal should defer its ruling as to whether the production of these documents was required until the Divisional Court rendered its decision in an application for judicial review of the Tribunal’s interim production decisions in Washington v. Toronto Police Services Board, 2009 HRTO 217, 2009 HRTO 865.

10The Divisional Court refused the application for judicial review on the basis that it was premature and no extraordinary circumstances existed which would cause it to intervene in the HRTO proceedings at that time. See Aroda v. Ontario Human Rights Commission, 2010 ONSC 419. In its decision the Divisional Court comments as follows:

It is important to note that in this case [Washington supra] the Tribunal did apply the O’Connor principles and procedures and did take the privacy rights of the applicants into consideration. While doing so, the Tribunal remarked that the application of O’Connor procedures was a matter of discretion. This comment was, in effect, by way of obiter dicta. In a compelling argument, the applicants and the intervenor, the TPA [the Toronto Police Association], vigorously challenge that obiter dicta. However, in the instant case, the Tribunal did in fact apply O’Connor. Any possible challenge to an interim order in this context should await a situation where a tribunal refuses to apply O’Connor and gives reasons for declining to do so (para. 16).

11The Tribunal has not heard from the parties since this decision. However, in the circumstances, the Tribunal will not require further submissions on the Request for production until the section 45.1 issue has been determined.

Request to Intervene

12Counsel asks that the Tribunal render a decision on the TPA’s request to intervene. However, no formal request from the TPA to intervene has been made to the Tribunal although it would appear the parties have exchanged correspondence on this issue. If the TPA wishes to intervene it needs to formally file with the Tribunal a Request to Intervene (Form 5) and indicate on what basis it wishes to intervene.