Theo Parris v. Ottawa Police Services Board and Pawel Lorentz, 2011 HRTO 2290

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Theo Parris Applicant

-and-

Ottawa Police Services Board and Pawel Lorentz Respondents

DECISION

Adjudicator: Brian Eyolfson Date: December 23, 2011 Citation: 2011 HRTO 2290 Indexed as: Parris v. Ottawa Police Services Board

APPEARANCES

Theo Parris, Applicant: Self-represented Ottawa Police Services Board and Pawel Lorentz, Respondents: Iain Aspenlieder, Counsel

INTRODUCTION

1The applicant filed an Application on November 17, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination on the basis of race and colour in the area of goods, services or facilities. In particular, the applicant alleges that he was subjected to racial profiling when he was pulled over while driving and given two tickets by the individual respondent, Constable Pawel Lorentz.

2The respondents filed a Request for Early Dismissal – With Full Response, on June 4, 2010. The respondents submit that the Application should be dismissed, pursuant to section 45.1 of the Code, because the substance of the Application has been appropriately dealt with by another proceeding, namely, a complaint filed by the applicant under the Police Services Act, R.S.O. 1990, c. P.15 (the "PSA"). The respondents also submit that the Application should be dismissed because it amounts to an abuse of process. In this regard, the respondents submit that the applicant should not be permitted to re-litigate matters determined by the Ontario Court of Justice. Lastly, the respondents submit that the Application should be dismissed as it does not disclose a prima facie case of discrimination.

3In a Case Assessment Direction dated August 24, 2010, the Tribunal directed that a one-day hearing be scheduled to hear the Application and to consider the issues raised by the respondents in their Request for Early Dismissal. At the hearing, the parties agreed that the three preliminary issues raised by the respondents in their Request for Early Dismissal would be addressed, and that the merits of the Application would not be heard.

THE PARTIES' POSITIONS

4With respect to abuse of process, the respondents submit that the applicant was convicted by the Ontario Court of Justice in respect of the two tickets issued to him by Constable Lorentz, for failing to stop for an amber traffic light and for failing to provide valid insurance documents. The applicant was sentenced to a fine, and his appeal of that sentence was denied on October 19, 2009.

5The respondents submit that the applicant alleges in his Application that he was pulled over, not for traffic violations, but for discriminatory reasons. They submit that, while the applicant alleges in his Application that the traffic light was green when he entered the intersection, the Ontario Court of Justice determined otherwise, and to allow the applicant to re-litigate this point would amount to an abuse of process.

6At the hearing, the respondents also submitted that the applicant's allegation that he was subjected to racial profiling was squarely before the Court, and that the Court considered and made findings of fact with respect to the applicant's allegations of racial profiling.

7The respondents provided copies of both a transcript of proceedings at trial, dated August 20, 2009, and the Court's Reasons for Judgment, dated September 28, 2009. It is clear from the transcript that the applicant raised allegations of racial profiling in his examination-in-chief before the Court. It also appears from the transcript that a complaint that the applicant made against Constable Lorentz under the PSA, essentially alleging discrimination based on race, and a decision of the Ottawa Police Service Professional Standards Section in respect of that complaint, were entered into evidence at the trial.

8At the outset of the Court's Reasons for Judgment, the Court states that it must first address the issue of racial profiling that was alleged by the applicant against Constable Lorentz. At page 2 of its Reasons, the Court "takes judicial notice of the history of discrimination faced by disadvantaged groups in Canadian society." The Court refers to the Ontario Court of Appeal's Decision in R. v. Brown, 2003 CanLII 52142, in which racial profiling was addressed, and states it "is aware that racism and racial profiling exists, manifesting themselves both overtly and subconsciously and impacting the exercise of discretionary power." The Court proceeds to review the evidence, and at page 11 of its Reasons, the Court concludes that "the evidential record is incapable of supporting a claim of racial profiling in this case."

9The Court then turned to the charges and found the applicant guilty of failing to surrender his insurance card, contrary to the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25. The Court also found the applicant guilty of failing to stop at an amber light, contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8, and indicated that the Crown had proven all the elements of that charge beyond a reasonable doubt.

10At the hearing the applicant reiterated his allegations that the traffic light was green when he entered the intersection and that he was subjected to discrimination by the individual respondent. The applicant confirmed that he attempted to appeal the Court's decision, and explained that he was told that he had no grounds as he had to pay the fines first. He disagreed that proceeding with his Application would be an abuse of process.

DECISION

11Pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, a "tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes."

12In submitting that the Application should be dismissed as an abuse of process, the respondents relied on the Tribunal's decisions in Campbell v. Toronto District School Board, 2008 HRTO 62, and Hughes v. 1308581, 2009 HRTO 341, both of which refer to the Supreme Court of Canada's decision in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 ("CUPE"). In CUPE, the Supreme Court of Canada held that a union was not entitled to re-litigate, at a grievance arbitration hearing, a criminal conviction that had led to a grievor's dismissal from employment, and that the arbitrator was required to give full effect to the conviction.

13In Campbell, supra, the Tribunal summarized the Supreme Court of Canada's analysis in CUPE concerning the doctrine of abuse of process in the context of re-litigation, as follows, at paras. 36 – 38:

... as described by the Supreme Court of Canada in CUPE:

... Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. (para.37).

[37] The Court went on to state that the "policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel", referring to the following excerpt from a legal text:

The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts' and the litigants' resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice. [Donald J. Lange, The Doctrine of Res Judicata in Canada, Markham, Ontario: Butterworths, 2000 (at pp. 347-48), cited in CUPE at para.38].

[38] The Supreme Court emphasized that the focus of the abuse of process doctrine is less on the private interests of the parties, and more on the integrity of the adjudicative process. Therefore, the motive of the party seeking to re-litigate an issue is not a decisive factor in the application of the doctrine (see CUPE, paras. 43-46). ...

14In CUPE, the Court also addressed when re-litigation may be permitted, as follows, at para. 52:

... It is therefore apparent that from the system's point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. ...

15With respect to fairness, the Court added as follows, at para. 53:

... There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).

16In the present case, I find that the applicant has not established any valid basis for why he should be permitted to re-litigate the issues underlying his provincial offence convictions. Based on the doctrine of abuse of process, as set out by the Supreme Court of Canada in CUPE, the applicant's provincial offence convictions must stand, with their consequent legal effects. See CUPE, supra, at para. 56.

17The applicant essentially alleges in his Application that he was subjected to racial profiling by the individual respondent, and that he did not go through an amber light. In my view, determining whether or not the applicant was subjected to discrimination, contrary to the Code, would necessitate a re-litigation of facts and issues already determined by the Ontario Court of Justice, including the dispute of whether the applicant failed to stop for an amber light, and would amount to an abuse of process. In particular, with respect to the Court's finding that the applicant's claim of racial profiling was incapable of being supported, the Court came to this conclusion after a thorough review of the evidence given at trial, and it would be an abuse of process to permit the re-litigation of this issue in the circumstances.

18In light of my finding above with respect to abuse of process, it is not necessary for me to consider the remaining preliminary issues raised by the respondents. The Application is dismissed.