Oliver v. South Simcoe Police Services Board, 2011 HRTO 1662

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Oliver

Applicant

-and-

South Simcoe Police Services Board, South Simcoe Police Service,

Bruce Davis, Al Cheesman, Deborah Carmichael, Tom McDonald,

Craig Johnson, Steve Wilson and Todd Ferrier

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: September 8, 2011

Citation: 2011 HRTO 1662

Indexed as: Oliver v. South Simcoe Police Services Board

APPEARANCES

David Oliver, Applicant ) Brenda Culbert, Counsel

South Simcoe Police Services Board, )

South Simcoe Police Service, Bruce Davis, )

Al Cheesman, Deborah Carmichael, ) Matthew Carroll, Counsel

Tom McDonald, Craig Johnson, )

Steve Wilson and Todd Ferrier, Respondents )

1This is an Application filed on January 26, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In a Case Assessment Direction dated November 23, 2010, I directed a conference call to receive submissions from the parties on the applicant’s request to re-activate this Application, and his request to defer the Application pending the completion of proceedings under the Police Services Act, regarding the respondent Bruce Davis. Given positions taken by the respondents in response to the request to re-activate, I also directed the respondents to file a Request for Order if they wished to request dismissal of the Application under section 45.1 of the Code or on the basis of abuse of process.

3Following that Direction, the respondents did file a Request, and in my Case Assessment Direction of December 22, 2010, I directed that submissions on the Request would also be addressed during the conference call. I also noted that the applicant had not filed a Response to the Request and directed him to do so. The applicant did not file a Response although he did retain counsel by the time of the conference call hearing, who submitted a Book of Documents to be relied on at the hearing.

4I held a conference call hearing on June 17, 2011, to receive submissions of the parties on the issues identified in the Case Assessment Directions. After considering those submissions, I have determined that the Application should not be dismissed under section 45.1 or as an abuse of process. However, before considering whether the Application may be re-activated, I will require the applicant to file an affidavit in support of certain factual assertions, and convene a hearing if the respondents wish to cross-examine him on the affidavit.

BACKGROUND

5The Application alleges discrimination in employment, on the grounds of ancestry and creed, arising out of the applicant’s termination from employment as a police officer with the South Simcoe Police Service (the “Service”). The applicant also alleges harassment in the workplace, as well as reprisal or threat of reprisal under the Code.

6When the Application was filed, the applicant indicated that the facts of the Application were part of an ongoing proceeding dealing with charges under the Police Services Act. He submitted a copy of Notices of Hearing under that Act, advising him of a hearing to consider charges of misconduct and unsatisfactory work performance against him. The applicant asked the Tribunal to defer the Application pending completion of the other proceeding.

7The Tribunal sent Notice of the Application to the respondents, as well as to an affected party, the South Simcoe Police Association, requesting that they provide submissions on whether the Application should be deferred. The Tribunal’s correspondence indicated that if the Application was not deferred, the respondents would be required to complete a Response.

8Counsel for the respondents wrote on February 20, 2009, stating that they were in agreement with the request to defer “on the condition and understanding that the matters addressed in the Application are the subject of another proceeding.”

9The Tribunal issued an Interim Decision on March 2, 2009, deferring the Application “pending completion of the police proceeding.” The Tribunal noted that submissions had been received from the respondents agreeing with the applicant’s request to defer. The Tribunal did not note that the respondents’ agreement was “conditional”. The Interim Decision did not place any conditions on the deferral of the Application.

10The hearing under the Police Services Act proceeded before a Superintendent assigned to hear the charges. After 17 days of hearings and three days of pre-hearing motions, the Superintendent issued a decision on February 10, 2010, finding the applicant not guilty on all charges.

11On October 15, 2010, the applicant filed a request to re-activate the Application. The Tribunal’s Rules of Procedure provide that a request to re-activate a deferred Application must be made no later than 60 days after the conclusion of the other proceeding (Rule 14.4). As the applicant’s request was made some eight months after the decision of the Superintendent, and six months after the time provided in Rule 14.4, the respondents oppose re-activation of the Application on the basis that the request is untimely.

12The respondents also submit that the Application should in any event be dismissed because the proceeding before the Superintendent appropriately dealt with the substance of the Application and/or it would be an abuse of process for the Application to proceed in the circumstances.

SECTION 45.1 AND ABUSE OF PROCESS

13In their submissions on section 45.1 and abuse of process, the respondents rely on the material before the Tribunal, including a letter from counsel for the Service to counsel for the applicant, in the context of the Police Service Act charges, which states, among other things:

Further, I wish to again confirm that the issues raised by Constable Oliver’s Human Rights Complaint will be raised and addressed in the upcoming proceedings before Superintendent Tweedy. (April 15, 2009)

14The respondents submit that, by way of this correspondence, the applicant and the respondents agreed that all matters relating to the applicant’s allegations of discrimination and harassment would be dealt with in the police proceeding.

15The respondents rely on a number of decisions of the Tribunal dismissing Applications under section 45.1 or as an abuse of process, including Asiamah v. Olymel S.E.C./L.P., 2009 HRTO 1750; Blanchette v. Ontario (Natural Resources), 2010 HRTO 2280; Sutton v. United Food and Commercial Workers of Canada, Local 175, 2010 HRTO 935; Manhas v. A.O. Enterprises, 2010 HRTO 659; Henderson v. Nutech Fire Protection, 2010 HRTO 2153.

16I agree with the principles expressed in those decisions. The Tribunal has stated that the doctrine of abuse of process applies to preclude re-litigation in circumstances where the strict requirements of issue estoppel have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice. See also Campbell v. Toronto District School Board, 2008 HRTO 62.

17However, I find the circumstances in this case different from those in the cases cited to me. In those other cases, the applicant had initiated a process in another forum concerning the events which then later became the subject of his or her application to the Tribunal. In Henderson, for instance, the applicant made a complaint under the Employment Standards Act about pregnancy-related discrimination, then sought to bring an application to the Tribunal after receiving an unfavourable decision from the Employment Standards Officer. In Blanchette, the Tribunal found it would be an abuse of the Tribunal’s processes to hear an application where the complainant had filed a grievance about the same facts which resulted in a decision by the Grievance Settlement Board (“GSB”). The applicant did not argue a Code violation before the GSB. The Tribunal stated that “it is an abuse of process to compartmentalize that complaint into several different processes, and to await the outcome of each proceeding before continuing on with the next.”

18Here, the applicant did not choose to commence litigation before another forum about the same events. Rather, because the Service decided that his employment should be terminated, charges were laid against the applicant under the Police Services Act. The proceeding was initiated by the Service and the hearing convened in order to determine whether there was clear and convincing evidence of misconduct that would support disciplinary action such as dismissal. The applicant did not seek to litigate his claim of discrimination before the Superintendent and did not raise discrimination as a defence to the charges. The Service may well have raised some of the issues in its presentation before the Superintendent, but it is clear from the Superintendent’s decision that he did not make any findings on the human rights issues raised in this Application. The decision of the Superintendent was simply that the evidence presented by the Service did not meet the “clear and convincing” standard.

19I do not preclude the possibility that an applicant may seek to have a claim of discrimination determined in another proceeding that he or she did not initiate, and that section 45.1 may apply in such a case. In the case before me, the Service maintains that the correspondence between the parties amounts to an agreement between the Service and the applicant to have the issues in his Application dealt with in the disciplinary hearing. On the material before me, I cannot draw such a conclusion. The letter of April 15, 2009, read in conjunction with the letter of February 20, 2009, certainly indicates that the Service intended to, and did, address these issues at the hearing before the Superintendent. They fall short of indicating that the applicant agreed to have his claim of discrimination determined at that hearing.

20In all these circumstances, I find no reason to exercise my discretion under section 45.1 to preclude the applicant from pursuing his Application before the Tribunal. The substance of the Application has not been dealt with in another proceeding.

21I also find that the circumstances of this case do not give rise to an abuse of process that should prevent the applicant from having his Application heard by the Tribunal.

22I have some sympathy for the position of the Service in seeking to have all issues relating the applicant’s employment determined in one forum. It is understandably concerned that the Tribunal hearing will result in a re-hearing of the evidence submitted to the Superintendent. However, I do not think that the principles of abuse of process extend to the circumstances before me. In Toronto (City) v. C.U.P.E., Local 79¸ 2003 SCC 63 (“C.U.P.E.”), the Supreme Court applied that doctrine to prevent the re-litigation of the facts underlying a criminal conviction. In Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427 (“Polgrain”), the Ontario Court of Appeal held that it was not an abuse of process to challenge, in a subsequent civil proceeding, findings made by a trial judge in the course of acquitting an accused. Among other things, the Court of Appeal commented that “where the accused is acquitted, the only essential finding is simply that the case was not proved beyond a reasonable doubt”. [para. 36] To give legal significance to other aspects of the decision would confuse the role of the criminal and civil courts: para. 36. The principles in Polgrain were discussed and applied in R.A. v. Toronto Police Services Board, 2009 HRTO 231, in which the Tribunal concluded that the abuse of process doctrine did not prevent the respondents from litigating certain facts set out in a decision acquitting the applicant of criminal charges.

23Although the circumstances in C.U.P.E. and Polgrain are different from those before me, those decisions provide guidance in understanding the application of the abuse of process doctrine. In Polgrain, the doctrine was described at para. 22 as follows:

The core principle which the abuse of process doctrine seeks to vindicate is to prevent the use of the court process in a way that would bring the administration of justice into disrepute. Relitigation of a claim that a court has already determined may bring the administration of justice into disrepute by violating “such principles as judicial economy, consistency, finality and the integrity of the administration of justice”: C.U.P.E. at para. 37. As such, abuse of process focuses “less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice”: C.U.P.E. at para. 43.

24Courts and tribunals therefore must determine whether, in particular circumstances, re-litigation engages the concerns underlying the abuse of process doctrine, where another proceeding has reviewed at least some of the same facts and issues. In this case, the circumstances I have outlined above do not support the application of that doctrine. The essential finding of the Superintendent was that the applicant was not guilty of the charges under the PSA. This applicant, for obvious reasons, is not seeking to re-litigate that finding.

25I find that allowing the Application to proceed would not bring the administration of justice into disrepute by violating such principles as judicial economy, consistency, finality and the integrity of the administration of justice.

26However, before the Application proceeds, I must also determine the effect of the applicant’s failure to comply with the timelines to request a re-activation following deferral.

REQUEST TO RE-ACTIVATE

27The Interim Decision deferring the Application states that it is deferred pending the completion of “the police proceeding.” As indicated above, the applicant had provided the Tribunal with copies of the Notices of Hearing relating to the charges against him. The proceeding with respect to those charges concluded with the decision of the Superintendent on February 10, 2010.

28In explaining the delay in making his request to re-activate the Application, the applicant indicates that he believed until shortly before he filed the request to re-activate that the deferral also covered other proceedings, most notably, a complaint he had made against the Chief of Police of the Service. He states that this, in addition to a misapprehension about the time limit for requesting a re-activation, is the reason he did not file the request earlier.

29The applicant relies on correspondence he sent to the Tribunal on October 12 and 13, 2010. In that correspondence he states that he believed the deferral “was in place until my PSA hearing and all related PSA matters and any grievances had been dealt with.” He also states that “I am willing to proceed whenever the Human Rights Tribunal wants to, but I was advised by the Human Rights not to proceed until all the PSA and related PSA matters were dealt with.”

30During the conference call submissions, counsel for the applicant provided some more information about an ostensible conversation with staff at the Tribunal, out of which it is alleged the applicant formed his belief that he was not obliged to bring his request to re-activate within 60 days of February 10, 2010, the date of the decision. Counsel referred to a conversation between the applicant and a named member of Tribunal staff on or about February 8, 2010.

31Counsel for the respondents objected to my giving any weight to the applicant’s assertions without the opportunity to cross-examine him and also reserved the right to call evidence on the issue in response, referring to the possibility of calling the Tribunal staff member as a witness.

32I have determined that I require evidence on the delay in bringing the request to re-activate, to the extent that the respondents contest the applicant’s account of the reasons for the delay. I will require the applicant to file an affidavit setting out all the particulars of his assertions about why he had an incorrect understanding of the time limits, and why he believed that the deferral extended beyond his own charges to other Police Services Act processes. The applicant must provide details of any relevant conversation, including its time and place and the identity of the persons involved. The respondents will be given an opportunity to cross-examine the applicant, if they wish.

33For the parties’ information, the Tribunal does not have any records of a conversation between the applicant and the staff member he names, on or about February 8, 2010.

34With respect to the respondents’ suggestion of calling the staff member to give evidence, I refer the parties to section 32(1) of the Code, which provides:

A member or employee of the Tribunal shall not be required to give testimony in a civil suit or any proceeding as to information obtained in the course of a proceeding before the Tribunal.

35I therefore direct as follows:

• Within two weeks of the date of this Interim Decision, the applicant must deliver and file an affidavit in accordance with para. 30 above.

• Within one week of their receipt of the affidavit, the respondents must indicate whether they wish to cross-examine the applicant on the affidavit. If they indicate they wish to do so, the Tribunal will schedule a hearing in person for the purpose of receiving the evidence and submissions on the affidavit. If they do not wish to do so, the Tribunal will schedule a hearing by conference call to receive submissions of the parties on the affidavit.

36I am seized of this matter.