HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Raymond Oliphant
Applicant
-and-
Windsor Police Services Board and Linda Skoyles
Respondents
Interim Decision
Adjudicator: David Muir
Indexed as: Oliphant v. Windsor Police Services Board
APPEARANCES BY
Raymond Oliphant, Applicant ) Self-represented
Windsor Police Services Board ) Nancy Jammu-Taylor, Counsel and Linda Skoyles, Respondents )
1This is an Application filed on June 26, 2009, under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant has alleged in his human rights complaint (the “complaint”) filed with the Ontario Human Rights Commission on March 23, 2007, that his right to be free from discrimination in the provision of services on the basis of sex has been breached by the respondents.
3This Interim Decision deals with a preliminary request that the Application be dismissed pursuant to section 45.1 of the Code on the basis that another proceeding has appropriately dealt with the substance of the Application.
4The respondents state that the applicant filed a complaint of police misconduct under the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”), which was investigated and subsequently reviewed by the Ontario Civilian Commission on Police Services (“OCCPS”). The Respondents state that the subject matter of the police complaint, the factual underpinnings of which are the same as those raised in the complaint, was appropriately dealt with by both the Windsor Police Service’s Professional Standards Branch (“PSB”) and OCCPS.
5There is little doubt that the complaints process under the PSA is, or was, as the statutory framework has been revised since this matter arose, a proceeding within the meaning of section 45. 1 of the Code. See Qiu v. Nelson, 2009 HRTO 2187; Pamula v. Ontario Provincial Police, 2010 HRTO 73; Kampe v. Regional Municipality of York Regional Police Services Board, 2010 HRTO 1741; and Ghafourian v. Toronto Police Services Board, 2010 HRTO 1620. The issue raised by this preliminary request is whether or not the substance of the Application was dealt with in that proceeding. For the reasons that follow I find that it was not.
6The applicant made a complaint (the “police complaint”) under the PSA by letter dated September 13, 2007, addressed to then-Chief of Police, Glenn Stannard. The police complaint alleged that the applicant had experienced police harassment over the previous two and a half years. The allegations in the police complaint are largely indistinguishable from the allegations made in the complaint underlying this Application. However, unlike the allegations in the complaint, which conclude with events occurring on March 13, 2007, the allegations in the police complaint include two additional events occurring on June 22 and June 29, 2007.
7With respect to the allegations said to have taken place between June 18, 2005, and March 12, 2007, the PSB relied upon subsection 59(4) of the PSA and determined that they would not be dealt with. Subsection 59(4) of the PSA states as follows:
The Chief of Police may decide not to deal with any complaint made by a member of the public if the complaint is made more than six months after the facts on which it is based occurred.
8Accordingly, the PSB investigation dealt with the allegations of misconduct between June 22 and June 29, 2007. The letter setting out the conclusions of the investigation put it this way:
As a result (of the exercise of discretion under s. 59(4)) the Windsor Police Service will not investigate your complaints starting from June 17, 2005 to March 12, 2007, accordingly they will not be dealt with.
9As regards the allegations which were investigated, the PSB concluded that officers involved “acted professionally and carried out their duties in a thorough manner.” and that there was “no evidence to suggest [the involved officers] harassed or threatened [the applicant]…” or that the applicant had been harassed or discriminated against by the Police on the basis of his gender.
10The respondents state that the substance of the issues raised in the complaint and the police complaint are “substantially the same in pith or essence”. The respondents state that the applicant alleges wrongful arrest and malicious prosecution in the context of the police complaint, as well as discrimination and harassment on the basis of gender. These are the same issues raised in the complaint underlying the Application, according to the respondents. The respondents state as well that in order to determine whether any of the involved officers engaged in misconduct in the manner alleged by the applicant, the PSB and OCCPS would have had to consider whether the involved officers engaged in discrimination contrary to the Code, as incorporated by the Code of Conduct contained in O. Reg. 123/98. Therefore, the respondents state that the factual underpinnings of the allegations in the Application are the same as the allegations raised in the police complaint and these factual underpinnings form an initial and necessary component of establishing the alleged violations of the Code, such that the substantive issues in the two forums are the same in pith and substance.
11This latter submission goes to the heart of the problem with applying section 45.1 in these circumstances. The fact is that the factual underpinnings of the allegations in the complaint and the police complaint are not the same. While thematically similar and raising identical Code issues, the allegations relate to specific incidents at specific times involving specific individuals, of what is said to be harassment and discrimination contrary to the Code. As I pointed out at the hearing, given the nature of the allegations made by the applicant some, or all, or none of them may in the end be found to be in violation of the Code. In the context of this case, the substance of the Application are the allegations made of Code-prohibited discrimination and harassment between June 18, 2005 and March 12, 2007, and it does not include the allegations made in respect of events in June 2007 which were the subject matter of the police complaint.
12The respondents state that the applicant was advised of his right to file a complaint on an uncertain date in the Spring 2007 which would have ensured that the incidents of February 1 and 7 and March 12, 2007, could have been the subject matter of the investigation. Further, the respondents state that on August 3, 2007, the applicant was advised again of his right to file a police complaint and of the six (6) month time limit on such complaints. If he had filed the police complaint even then, the allegations concerning events in February and March 2007 would have been included in the investigation. As noted, the applicant chose not to file his police complaint until September 13, 2007.
13The respondents state that the applicant ought to bear the consequences of his delay in filing the police complaint and accordingly section 45.1 can be applied to these circumstances despite the exercise of discretion by the investigator to not deal with the allegations made in the complaint.
14I do not agree. I do not understand section 45.1 as applying in circumstances where the substance — in this case the factual allegations — of an Application were not dealt with in the other proceeding as a result of a discretionary refusal to deal with it there. See for example Rotondo v. Village Millcraft Apartments, 2009 HRTO 313, where the identical facts were raised in the other proceeding but never dealt with because the applicant withdrew the application.
15Finally, the respondents state that the OCCPS reviewed the exercise of discretion to not deal with the alleged misconduct between June 2005 and March 2007 and found no impropriety. To my mind, the fact that the discretion to not deal with the substance of the complaint was exercised appropriately does not require the conclusion that the substance of this Application has been appropriately dealt with. The fact remains that although raised by the applicant in the police complaint, the substance of this Application was not dealt with in that proceeding as a result of an exercise of discretion not to do so on timeliness grounds.
16The authority to dismiss under section 45.1 is discretionary. I find for all of the reasons set out above that it would be inappropriate to do so in these circumstances.
17The respondents’ preliminary Request is rejected.
18I am seized of this matter.
Dated at Toronto, this 24th day of September, 2010.
“Signed by”
David Muir
Vice-chair