Kampe v. Regional Municipality of York Regional Police Services Board, 2010 HRTO 1741

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Kampe Applicant

-and-

The Regional Municipality of York Regional Police Services Board and Ryan Boulay Respondents

DECISION

Adjudicator: David Muir Date: August 24, 2010 Citation: 2010 HRTO 1741 Indexed as: Kampe v. Regional Municipality of York Regional Police Services Board

Appearances and Written Submissions

Brian Kampe, Applicant ) Sam Dhaliwal, Representative The Regional Municipality of York ) Regional Police Services Board ) Stephan Maio, Counsel and Ryan Boulay, Respondents )

1This is an Application filed under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with a Request for Order during Proceeding (“Request”) filed by the respondents seeking the early dismissal of the Application pursuant to section 45.1 of the Code on the basis that the substance of the Application has been appropriately dealt with in another proceeding.

2At the hearing set for argument of this issue the applicant requested that he be given further time to respond to the issue and waived his right to make oral submissions. Accordingly, the hearing was adjourned and the parties agreed to a schedule for written submissions.

3The respondents state that the applicant filed a formal complaint related to the same allegation made in the complaint underlying this Application utilizing the complaint mechanism outlined within Part V of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”).

4The Tribunal has considered requests for early dismissal under s. 45.1 of the Code based on proceedings under PSA and the parties’ arguments centered on the Tribunal’s decision in Qiu v. Nelson, 2009 HRTO 2187, which determined that the public complaints process under Part V of the PSA was a proceeding within the meaning of section 45.1 of the Code. See also Pamula v. Ontario Provincial Police, 2010 HRTO 73.

Section 45.1

5The Tribunal has interpreted section 45.1 of the Code as requiring consideration of a two-part test: (1) whether there was another “proceeding”, and (2) if so, whether the proceeding “appropriately dealt with” the substance of the Application.

6The applicant states that the particular circumstances of this case distinguish it from Qiu such that section 45.1 is not applicable. The applicant states primarily that unlike in Qiu he did not participate effectively in the PSA proceeding, that he did not understand the process and, significantly, he was not represented during that process. The applicant states that it was key to the Tribunal’s determination in Qiu that the PSA complaint process was a proceeding, that the applicant was represented and actively participated in the proceeding. The applicant states that although he commenced a complaint and then asked for a review of the initial investigation to the Ontario Civilian Commission on Police Services (the “OCCPS”) he did not effectively participate in either process and for that reason it cannot constitute a proceeding within the meaning of section 45.1.

7The respondents state that both parts of the test are met in this case and that accordingly the Application should be dismissed. The respondents state that active and effective participation is not a pre-requisite for the application of section 45.1; rather it is the ability to participate fully in the process that is a hallmark of a proceeding within the meaning of the section.

8In Qiu the Tribunal accepted that the complaint mechanism under the PSA met the first part of the test, i.e. it is a proceeding within the meaning of section 45.1. The Tribunal concluded as follows:

Accordingly, in the particular circumstances of this case, I find that the police investigation of the applicant’s complaint of police misconduct under the PSA and the subsequent review by the OCCPS does constitute a “proceeding” within the meaning of s. 45.1 of the Code. In making this finding, I have considered and relied upon the following factors: that the applicant fully participated in the police investigation process and provided detailed and voluminous materials in support of his complaint; that the results of the witness interviews were shared with the applicant and he was given an opportunity to respond to them; that the applicant sought review of the determination made by the Chief of Police by the OCCPS; that the applicant was represented by counsel and made detailed submissions to the OCCPS in response to the police report of the investigation; that the complete investigation file compiled by the York Regional Police was forwarded to the OCCPS for an independent review; that an independent review of the applicant’s complaint was conducted by a panel of the OCCPS prior to its decision to uphold the findings of the police investigation; and that the OCCPS is an independent statutory agency with members appointed by Cabinet. I am not suggesting that all of these factors would need to be present in order for an investigation of a public complaint under the PSA to be found to be a “proceeding” within the meaning of s. 45.1 of the Code, but am merely stating that these are the factors that have persuaded me to find that there was a “proceeding” in the particular circumstances of this case.

9In this case, the applicant filed a complaint under Part V of the PSA on July 5, 2007. Because of confusion on the applicant’s part about which Police Services were involved in the events giving rise to those proceedings, the PSA complaint was not received by the respondents for a period of time. Upon receipt in December 2007 the Chief of the respondent Police Service assigned the complaint to the Professional Standards Bureau for investigation. The complaint was acknowledged by letter dated January 14, 2008. On more than one occasion, the applicant was asked to provide further information to facilitate the investigation, but never did so. It is not clear why he did not. The investigation proceeded on the basis of the complaint made by the applicant and information was gathered from other sources, primarily the police officers on scene at the time.

10By letter dated July 25, 2008, the applicant was informed of the results of the investigation. The applicant was advised of the nature of the investigation and its deficiencies; in particular, the investigator had been unable to make contact with the applicant despite attempts to do so, including a letter to the applicant dated January 16, 2008. He was also advised that the investigation could not substantiate his complaint and he was advised of his right to seek a review of the investigation by OCCPS. The applicant was advised that OCCPS was an agency of the provincial government and independent of the Police Service.

11The applicant availed himself of the review processes of OCCPS but apparently provided nothing further to aid in that process. By letter dated December 22, 2008, OCCPS advised the applicant of the results of its review.

12I agree with the conclusions drawn in Qiu and adopt those reasons as a correct statement of the law. I also find that the statutory scheme engaged by the applicant is indistinguishable from that at play in Qiu. The only difference between the two cases is the apparent level and quality of participation of the respective complainants – as indicated, the applicant asserts that his participation in the process was limited and he was not represented.

13I have considered the applicant’s submission and have concluded that the Application should be dismissed. I do not accept the submission of the applicant that because he was unrepresented and did not effectively participate in the process the complaints process is not a proceeding and therefore section 45.1 should not be applied. This is a misreading of the Qiu decision.

14Rather, the Tribunal concluded that that complaints process was a proceeding within the meaning of section 45.1 because the complainant was afforded the opportunity to participate fully and was afforded the opportunity to be represented and make full submissions as part of the process. I agree with the respondents that the failure of a party to fully and adequately participate in a proceeding or the strategy chosen during that proceeding is the responsibility of the applicant and not a relevant consideration for the Tribunal in determining whether or not to grant a request for early dismissal under s. 45.1 of the Code. I would only add that had there been Code-related reasons for the failure to adequately or effectively participate in the proceeding, different considerations might apply. That is not the situation here.

Was the substance of the Application appropriately dealt with?

15The applicant does not take issue with the respondents’ submission that the substance of the Application and his complaint are indistinguishable. Accordingly, I find that the substance of the Application was raised in the complaints process. What remains to be determined is whether or not the substance was appropriately dealt with in that process. In Qiu, the Tribunal considered the correct approach to this aspect of the analysis:

This leaves the question of whether the allegations raised in the human rights complaint were “appropriately dealt with”: This 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.

16I have reviewed the results of the initial investigation by the police as well as the review by OCCPS. While the discussion is limited, in part because of the limited material provided by the applicant, there is nothing on the face of the investigation report or OCCPS review to conclude that the process was unfair or that these bodies failed to consider the appropriate principles in reaching the determinations that they did. Any deficiencies in the consideration of the merits of the complaint must be considered in light of the applicant’s acknowledged failure to effectively participate in the proceeding.

17Accordingly and for all of these reasons I find that the Application must be dismissed.