Red v. Toronto Police Services Board, 2010 HRTO 2227

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Clay Red

Applicant

-and-

Toronto Police Services Board and James Lee

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: November 8, 2010

Citation: 2010 HRTO 2227

Indexed as: Red v. Toronto Police Services Board

BACKGROUND

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on February 25, 2010 alleging discrimination and reprisal with respect to services, goods, and facilities on the basis of race, colour, ancestry, citizenship, place of origin, ethnic origin, and family status.

2At various points in his Application, the applicant identifies the organizational respondent as “Police Service 11 Division” and “Police Services/City Hall”. The Tribunal delivered the Application to the Toronto Police Services Board. The Toronto Police Services Board filed a Response on June 23, 2010, in which it advised that the other names are not correct. As such, the Tribunal will be proceeding on the basis that the proper name of the organizational respondent is the Toronto Police Services Board (“TPSB”).

3In its Response, the TPSB requests early dismissal of the Application because the substance of the Application has been appropriately dealt with by a Police Services Act R.S.O. 1990, c. P.15 (“PSA”) proceeding. The TPSB notes that the applicant filed a PSA complaint and sought a review of the initial PSA determination by the Ontario Civilian Commission on Police Services (“OCCPS”). The TPSB further asks the Tribunal to not consider any allegations relating to incidents that were alleged to have taken place more than one year before the Application was filed.

4On July 27, 2010, the personal respondent filed a Response also seeking early dismissal of the Application under section 45.1 of the Code because the OCCPS remitted the applicant’s complaint back to the TPSB for a disciplinary proceeding.

5The applicant did not file a Reply.

SCOPE OF THE APPLICATION

6In addition to describing a specific March 2009 incident involving alleged mistreatment by the personal respondent, the Application includes various, largely illegible hand-written notations, which appear to make vague allegations regarding police interaction with the applicant over the past ten years. These incidents do not appear to be related to the March 2009 events and no individuals are identified as potential respondents. Since these allegations are unclear, appear to be unconnected, and involve anonymous individuals many years prior to the filing of the Application, the Tribunal will proceed, in accordance with section 34(1) of the Code, only on the basis of the events that took place one year before the date the Application was filed. As such, the Tribunal will consider the scope of the Application to be the events from February 2009 and onwards.

SECTION 45.1

7Under section 45.1 of the Code, 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.

8The Tribunal has determined that the public complaints process pursuant to the PSA, including the independent review by the OCCPS, constitutes a proceeding within the meaning of section 45.1 of the Code: Qui v. Neilson, 2009 HRTO 2187, and Pamula v. Ontario Provincial Police, 2010 HRTO 73.

9Based on the information provided by the parties, it appears that on July 15, 2010, the OCCPS directed the Toronto Police Service to conduct a disciplinary hearing with respect to the personal respondent’s conduct regarding the same events that underlie the subject matter of this Application. This hearing is pending.

10I find that it would be inappropriate to dismiss the Application at this stage because, given the outstanding PSA proceeding, the issue of whether or not the substance of the Application was appropriately dealt cannot be determined at this time.

DEFERRAL

11The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

12Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are: the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

13I find that it is appropriate to defer this matter because the proceeding under the PSA is presently on-going and relates to the allegations and issues which are central to the Application. The parties acknowledge that the March 2009 incident is currently the subject of a pending PSA disciplinary hearing. As such, I find it appropriate to defer the Application until the outcome of the disciplinary process.

14The Tribunal orders that this Application be deferred pending the conclusion of the disciplinary proceeding. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

15I am not seized.