HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Richard Burns
Applicant
-and-
Thunder Bay Police Services Board and Robert Herman
Respondents
INTERIM DECISION
Adjudicator: David Shannon
Indexed as: Burns v. Thunder Bay Police Services Board
Appearances
Richard Burns, Applicant ) Self-represented
Thunder Bay Police Services Board ) Robert C. Edwards, Counsel
and Robert Herman, Respondents )
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, dated June 21, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on July 21, 2007. The hearing was held in Thunder Bay on August 31, 2010.
2This Interim Decision addresses two issues. First, it considers a renewed request for an adjournment that was denied in the Tribunal’s Interim Decision, 2010 HRTO 1722, dated August 19, 2010. Second, it addresses the respondents’ request to dismiss this Application pursuant to section 45.1 of the Code on the basis the substance of the Application has been appropriately dealt with in a proceeding brought under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”).
Background
3On August 21, 2006, the applicant submitted a complaint to the respondent, complaining that officers of the Thunder Bay Police Services (“TBPS”) were harassing him based on his disability during traffic stops. Although the applicant scheduled an interview within the 30 days, he subsequently cancelled it, and never rescheduled. As a result, the TBPS closed the file.
4The Thunder Bay Police Services completed an investigation and, pursuant to s. 64 of the PSA, concluded that on December 14, 2006, the officers were performing their duties in a proper manner and that the traffic stops were lawful. In addition, the off-duty officer who looked at the applicant’s vehicle on December 19, 2006, did so because the vehicle did not have license plates. The TBPS found that the complaints were unsubstantiated.
5The applicant brought the matter to the Ontario Civilian Commission on Police Services (“OCCPS”) for review. In its decision dated January 9, 2008, the OCCPS concluded that the circumstances leading to the traffic stops in question involved legitimate concerns about infractions under the Highway Traffic Act, R.S.O. 1990, c. H.8; and the evidence did not establish that the actions of the identified officers constituted misconduct.
Adjournment Request
6The applicant submitted several letters to the Tribunal requesting reconsideration of the decision denying his request for an adjournment.
7Section 45.7 of the Code provides as follows:
45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
8The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008).
9The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
10A decision refusing an adjournment is not a final decision within the meaning of the Rules. As such there is no basis on which to exercise my discretion to reconsider.
11The applicant renewed his request to adjourn the hearing at several points during the proceeding before me. He advised that he has disabilities that preclude him from preparing and presenting at the hearing, and in light of the fact he is unrepresented, he could not proceed without legal representation. The applicant indicated he suffers from chronic pain and has trouble concentrating. He claimed to have a learning disability, and an attention deficit disorder. The applicant did not provide any medical documentation to support his allegations that his alleged disabilities precluded him from proceeding with the hearing. He showed prescribed medication for pain and mood stabilization as evidence at the hearing.
12The applicant also alleged that he believed until recently he was represented by the Ontario Human Rights Commission. He could not explain why he thought that he was represented by the Ontario Human Rights Commission although he had seen several documents indicating otherwise. The applicant admitted that he had prepared materials in his mother’s home. She is legal counsel, but despite her proximity to the applicant, he denies seeking her advice on this matter.
13The applicant indicated that just prior to lunch he received legal advice during a break where he was told to leave the hearing. The applicant remained until near the end of the hearing. The applicant would not give the name of the lawyer he spoke to, but indicated it was someone in Toronto.
14I advised the applicant that I had sympathy for what he may perceive as systemic flaws, that is the procedural change that removed the Commission from this matter, but I was not prepared to grant his request for an adjournment. He was invited to seek a doctor’s letter during the lunch break.
15He returned advising that he spoke to his doctor, and a letter would be coming at a future date. I invited him to get his doctor on speaker phone so that he could give oral submissions. The applicant refused. In the circumstances I was not satisfied there was evidence before me to support the request to adjourn.
16During an afternoon break the applicant indicated that he felt nausea, but insisted that the matter proceed. Later he again indicated that he was nauseous. At that point I offered to adjourn for the day notwithstanding the fact that he still had provided no medical documentation. The applicant insisted that the hearing continue.
Request for Dismissal under s. 45.1 of the Code
17Section 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.
18In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application. Given my finding on the second branch of this test it is not necessary for me to decide whether a police investigation and decision of the Professional Standards Unit under the PSA is a proceeding within the meaning of section 45.1.
19The issue on the second part of the test under s. 45.1 of the Code is whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was in pith or essence substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding.
20Based upon the material before me, I am not satisfied that the result of the police investigation resolved the entire factual underpinning of the applicant’s allegations of disability based discrimination and or harassment in the provision of police services. For example, while the investigation report addresses the issue of whether the police had the authority to pull over the applicant while driving his vehicle, the report’s finding is based upon the police officer’s authority under the Highway Traffic Act. There is no consideration of the Code or whether the exercise of this authority in the specific circumstances of this case amounted to disability based discrimination in violation of the Code.
21Similarly, the police investigation report does not address the question of whether the applicant’s disabilities were a factor in the decision to apply the degree of force that was utilized. Indeed, it appears that the report also makes a deliberate effort to avoid addressing the question of whether there has been a violation of the Code when writing,
Regarding you reporting one of these officers making comments that you believe to be inappropriate, you can file a complaint with the Ontario Human Rights Commission should you wish to do so. Following an investigation by the Ontario Human Rights Commission, should the officer he found guilty of an offence, then my office would deal with any violations under the Police Services Act in the appropriate manner…
22The respondent contends that the OCCPS considered whether there was a violation of the Code because in its decision dated January 9, 2008, the OCCPS stated that it “appreciated how [the applicant] might be of the opinion that [he has] been the victim of targeted enforcement by the Thunder Bay Police Service.” I respectfully disagree. This statement does not articulate whether disability was considered as a factor in its decision nor whether there was a breach of the Code nor even any human rights principles.
23Accordingly, in the specific circumstances of this case, I find that the issues raised in the complaint under the PSA are not in pith and substance the same as the issues raised in this Application. As a result, I find that the police investigation did not appropriately deal with the substance of the allegations in this proceeding arising out of the September 26, 2007 incident. Consequently, the respondents’ request for dismissal of the Application pursuant to s. 45.1 of the Code is denied.
Dated at Toronto this 6th day of October, 2010.
“Signed by”
_________________________________ David Shannon
Member```