HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jason Thibault
Applicant
-and-
Ontario Provincial Police
Respondent
interiM DECISION
Adjudicator: Alison Renton
Indexed as: Thibault v. Ontario Provincial Police
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), on September 21, 2009 alleging discrimination on the grounds of ancestry, disability, family status, marital status, and reprisal in the social area of goods, services and facilities.
2The respondent filed a Response and submitted that the applicant was attempting to use several forums to retaliate against his former spouse, who is an Ontario Provincial Police officer, following an acrimonious separation, and to retaliate against other officers for perceived mistreatment. The respondent requested that the Application be deferred as the applicant had filed fifty public complaints under the public complaint provisions of the Police Services Act, R.S.O. 1990, P. 15, as amended, on the same issues as those raised in the Application. The complaints, the respondent submitted, were sent for review to the Ontario Civilian Police Commission (“OCPC”), an independent civilian oversight agency established pursuant to the Police Services Act.
3In an earlier Interim Decision dated March 30, 2010 (2010 HRTO 700), the Tribunal removed a personal respondent who was a party to the Application and ordered the deferral of the Application pending completion of a complaints process before the OCPC. The Tribunal stated, at para. 6:
Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).
4The applicant filed a Request for Order During Proceedings (“RFOP”) dated January 28, 2011 and received by the Tribunal on February 8, 2011. There are very few details provided on the RFOP. The applicant requests that the Tribunal: i) consolidate or have applications heard together and specifically with this Application; ii) add a party – “the Crown’s office in Sudbury”; iii) re-activate the deferred Application -“March 30, 2010”; iv) obtain particulars, specifically the “evidence of Jason Thibault”; v) obtain production of documents, specifically “Crown brief – Jason Thibault”; and vi) other “mediation – be left alone”.
5In early February 2011, the applicant also sent to the Tribunal a new section 34 Application form in which “Her Majesty the Queen in Right of Ontario, Attorney General and Crown Operations, Ministry of Attorney General” (“Attorney General”) is listed as a respondent and John Luczak, Director of Crown Operations, is listed as the contact person (“the new Application”). Attached to the new Application was correspondence addressed to the Officer of the Commissioner, Ontario Provincial Police and the Ministry of the Attorney General and a narrative representing a “snap shot” of how the alleged “agencies have mistreated the Thibault family”. Within the narrative are allegations about the conduct of various Crown attorneys in criminal proceedings pertaining to the applicant. The new Application has not been delivered to the Attorney General for Response.
6The respondent filed a Response to a RFOP. The respondent submitted that the RFOP had not been properly served on it on as the RFOP identified “John Luczak” as the respondent, rather than the respondent. On a without prejudice basis, the respondent responded to the RFOP but noted it could only respond to the request to re-activate the Application as the new Application did not name it as a respondent.
7The respondent submits that rather than re-activating the Application, the Tribunal should dismiss it pursuant to section 45.1 of the Code. The respondent submits that the applicant’s allegations have been appropriately dealt with by an independent civilian oversight agency, the OCPC, under the provisions of the Police Services Act. The respondent provided copies of the applicant’s complaints under the Police Services Act, the investigation reports into the complaints, letters from the Professional Standards Bureau and letters from the OCPC containing its final determinations dated November 30, 2009 to October 27, 2010.
REQUEST TO CONSOLIDATE
8The new Application which the applicant submitted to the Tribunal in February 2011 has not been delivered to the Attorney General for Response. It may be that the new Application is outside the Tribunal’s jurisdiction on the basis of prosecutorial immunity as the allegations appear to be about Crown counsel. Further, the new Application may be untimely as the allegations may be beyond the mandatory one year limitation period under section 34(1) of the Code. The Tribunal will communicate with the applicant under separate cover in relation to the new Application. At this time, the Tribunal cannot consolidate the two Applications; however, if the new Application proceeds, the applicant may be able to renew his request that the two Applications be consolidated or heard together.
REQUEST TO ADD A PARTY
9Pursuant to Rule 1.7(b) of the Tribunal’s Rules of Procedure, the Tribunal has the power to add or remove a party. Pursuant to Rule 1.5 it may do so on the request of a party or on its own initiative.
10In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal held that when determining a request to add a respondent, the Tribunal should consider the following three questions:
(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?
(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
(3) Would it be fair, in all the circumstances, to add the proposed respondent?
11There is no connection between the Attorney General and the allegations contained in the original Application. Indeed the applicant seems to recognize this as he sent to the Tribunal the new Application. Accordingly, I decline to add the Attorney General as a party in this Application. As set out above, the Tribunal will communicate with the applicant under separate cover in relation to the new Application.
RE-ACTIVATING THE APPLICATION/SECTION 45.1
12The applicant has requested that his Application be re-activated. Other than writing “March 30, 2010”, he has not provided any details about the status of the proceedings before the OCPC or the reasons why the Application should be re-activated.
13The respondent has provided copies of letters from the OCPC ranging in dates from November 2009 to October 2010, which apparently demonstrate that the OCPC proceedings have concluded. The respondent also submits that the Application should be dismissed pursuant to section 45.1 of the Code.
14Section 45.1 of the Code states:
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.
15The Supreme Court of Canada recently issued British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) in which language under the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210 as amended (“the BC Code”), which is very similar to section 45.1 of Ontario’s Human Rights Code, R.S.O. 1990, c. H. 19, was examined by the Supreme Court. This decision is found at www.canlii.org.
16At paras. 37 to 38, the Supreme Court stated:
Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.
What I do not see s. 27(1)(f) [the language from the BC Code] as representing, is a statutory invitation either to ‘judicially review’ another tribunal’s decision, or to reconsider a legitimately decided issue in order to explore whether it might yield a different outcome. The section is oriented instead towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate.
17In these circumstances, and before determining whether the Application should be re-activated, the Tribunal finds it appropriate to receive submissions from the applicant explaining whether the Tribunal should exercise its discretion under section 45.1 of the Code not to dismiss the Application in light of the determinations made under the Police Services Act including the determinations made by the OCPC.
18The Tribunal directs that by January 6, 2012, the applicant deliver to the respondent and file with the Tribunal written submissions explaining whether or not the Tribunal should exercise its discretion under section 45.1 of the Code to dismiss the Application. The applicant is also directed to advise the respondent and the Tribunal, by email by January 6, 2012, whether or not he prefers that the section 45.1 issue be addressed by the Tribunal orally or based upon the parties’ written submissions.
19The respondent shall have until January 13, 2012 to deliver to the applicant and file with the Tribunal any additional submissions responding to the applicant’s submissions.
20If the applicant advises that he would prefer that the issue be addressed orally, the Tribunal will schedule a half day conference call to address the section 45.1 issue. If the applicant advises that he does not prefer an oral hearing, or does not respond to this direction, the Tribunal will base its decision upon the parties’ written submissions.
REMAINING ISSUES
21With respect to the remaining issues requested by the applicant in his RFOP, specifically, particulars (“the evidence of Thibault”), production of documents (“Crown brief – Jason Thibault”); and “mediation – be left alone”, the Tribunal denies those requests. The applicant does not provide any context or factual underpinnings to explain why he makes these requests. Further, it appears that the request for particulars and production of documents relates to the new Application against the Attorney General rather than the Application against the respondent. Without any context being provided to the request “mediation – be left alone”, the Tribunal does not understand the applicant’s request on that point. The Tribunal does note that the applicant marked off his consent to mediation on the Application form. As mediation before the Tribunal is voluntary, if the applicant has changed his mind, he can communicate that to the respondent and the Tribunal separately.
ORDER
22The Tribunal makes the following orders:
The applicant’s request to consolidate is denied at this time.
The applicant’s request to add a party is denied.
By January 6, 2012, the applicant shall deliver to the respondent and file with the Tribunal written submissions explaining whether or not the Tribunal should exercise its discretion under section 45.1 of the Code to dismiss the Application.
By January 6, 2012, the applicant is directed to advise the respondent and the Tribunal, by email, whether or not he prefers that the section 45.1 issue be addressed by the Tribunal orally or based upon the parties’ written submissions.
By January 13, 2012, the respondent shall deliver to the applicant and file with the Tribunal any additional submissions responding to the applicant’s submissions.
If the applicant advises that he would prefer that the section 45.1 issue be addressed orally, the Tribunal will schedule a half day conference call. If the applicant advises that he does not prefer an oral hearing, or does not respond to this direction, the Tribunal will base its decision upon the parties’ written submissions.
The applicant’s request for particulars, production of documents and “mediation – be left alone”, is denied.
23I am not seized of this matter.
Dated at Toronto, this 28th day of December, 2011.
“Signed by”
Alison Renton
Vice-chair