Newton v. Toronto Police Services Board, 2011 HRTO 1701

Human Rights Tribunal of Ontario

B E T W E E N:

Perry Newton

Applicant

-and-

Toronto Police Services Board, Rhoel Ong, Tiffany Castel, Jeffrey Gouth, Michael Lane, Michael Harnish and Katimaire Metzger

Respondents

AND BETWEEN:

Jamaal Cushnie

Applicant

-and-

Toronto Police Services Board, Rhoel Ong, Tiffany Castel, Jeffrey Gouth, Michael Lane, Michael Harnish and Katimaire Metzger

Respondents

AND BETWEEN:

Paulette Cushnie

Applicant

-and-

Toronto Police Services Board, Rhoel Ong, Tiffany Castel, Jeffrey Gouth, Michael Lane, Michael Harnish and Katimaire Metzger

Respondents

AND BETWEEN:

Lorenzo Bartley

Applicant

-and-

Toronto Police Services Board, Rhoel Ong, Tiffany Castel, Jeffrey Gouth, Michael Lane, Michael Harnish and Katimaire Metzger

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: September 16, 2011

Citation: 2011 HRTO 1701

Indexed as: Newton v. Toronto Police Services Board

1These are Applications filed on May 17, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code").

2As the Applications arise out of the same events and contain virtually identical allegations and particulars, and involve the same respondents, the Tribunal will deal with them together. The name of the organizational respondent is amended in accordance with the Responses filed.

3The Applications state that they arise out of an incident in the early hours of a morning in May 2010, at a nightclub. They allege that police officers with the Toronto Police Service discriminated against the applicants on the grounds of race, colour, ethnic origin, age and sex in a violent altercation with the applicants, who are all friends or family members. They allege that the altercation led to the death of a member of the family a month afterward.

4The respondents have filed Requests for an Order During Proceedings seeking deferral of the Applications pending the outcome of an investigation by the Special Investigations Unit (SIU) and any criminal or disciplinary proceedings that may arise from the investigation, the disposition of the complaints filed by the applicants with the Office of the Independent Police Review Director (OIPRD) and any criminal or disciplinary proceedings that may arise from those complaints and the disposition of criminal proceedings against one of the applicants, related to the alleged incident.

5Although the respondents filed Responses in Form 2, they do not address the allegations and do not therefore constitute full Responses.

6The applicants have not responded to the Requests.

7The respondents have provided copies of letters from the SIU and the OIPRD confirming that each organization has initiated an investigation into the events described in the Applications. The OIPRD investigation follows from complaints by the applicants against the six personal respondents. In their Responses, the respondents have also provided an excerpt from Ontario Regulation 267/10 prohibiting the disclosure by a police force and members of a police force of any information with respect to an incident under investigation by the SIU, or relating to the investigation (section 12). They state, therefore, that they cannot respond to the merits of the Applications until after the SIU has completed its investigation.

8The 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 of the Tribunal's Rules of Procedure). Deferral 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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

9Some of the factors that may be 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 type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer having regard to the nature and status of each proceeding and the steps that have been taken to pursue them. The Tribunal has deferred applications where there are ongoing criminal proceedings involving the parties, or where there are proceedings under the Police Services Act. In each case, the Tribunal has considered the circumstances before it in determining whether a deferral is appropriate.

10In these Applications, it is clear that there is substantial overlap between the events which form the basis of the allegations, and the matters under investigation by the SIU and the OIPRD. In addition, the respondents are restricted in their ability to respond to the merits of these Applications because of the prohibitions in Ontario Regulation 267/10.

11In the circumstances, deferral of the Applications is appropriate, at least until the outcome of the SIU and OIPRD investigations and the criminal proceeding against one of the applicants. However, as at this point it is not apparent that there will be any disciplinary or criminal proceedings against any of the individual respondents as a result of the investigations, and how long such proceedings would take, it is premature to order deferral until the conclusion of any such potential processes. If the outcome of the investigations is that criminal or disciplinary charges are initiated, any party may request further deferral and the Tribunal will consider the matter at that time.

12Rule 19 of the Tribunal's Rules of Procedure sets out the procedure and deadline for requesting that an Application be re-activated following the conclusion of other processes.

ORDER

13I therefore direct:

• that the Applications be deferred pending the conclusion of the SIU and OIPRD investigations, and the criminal proceeding against one of the applicants. If any party seeks re-activation of the Applications following the conclusion of those other processes, they are directed to the provisions of Rule 19;
• that the requirement to file full Responses is held in abeyance pending further direction from the Tribunal.

14I am not seized of this matter.