Beckford v. Toronto Police Services Board, 2012 HRTO 1139

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Candis Beckford

Applicant

-and-

Toronto Police Services Board and Chief of Police, Toronto Police Service

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: June 11, 2012

Citation: 2012 HRTO 1139

Indexed as: Beckford v. Toronto Police Services Board

1The applicant filed an Application on February 14, 2012, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and harassment with respect to services, goods and facilities, because of race, colour, disability and sexual orientation. The Application was sent to the respondent on March 9, 2012. The respondent filed a Request that the Application be deferred before it was required to file a full Response, but has since filed a Response denying the allegations. Both parties have agreed to attempt mediation.

2The Request was sent to the applicant. The applicant has not responded to the Request, and the time for doing so has elapsed. This Interim Decision deals with the Request to defer. I am not persuaded that the Application should be deferred.

FACTS AND ARGUMENT

3The Application and accompanying documents filed by the applicant allege that, during an arrest conducted on January 9, 2012, police officers assaulted the applicant and made derogatory references to disabilities as defined by the Code and a racist remark, as well as a derogatory reference to the sexual orientation of the applicant's mother.

4Both the Application and the respondent’s Request indicate that the applicant filed a complaint with the Office of the Independent Police Review Director (“OIPRD”). The respondent states that the complaint to the OIPRD addresses the same allegations as the Application. On review of a copy of the complaint to the OIPRD appended to the request, it appears that this is not the case; the complaint is limited to allegations of physical assault.

5A letter appended to the Request indicates that the OIPRD referred the applicant's complaint to the chief of police for investigation on February 1, 2012. The letter from the OPIRD directs the Chief of Police complete the investigation within 120 days of February 1, 2012, which would be by May 31, 2012. The Request, which was filed on April 13, 2012, indicates that “the complaint is still ongoing and the investigation has not yet been completed”. The Request gives no information about when the investigation under the Police Services Act, R.S.O. 1990, c. P.15, (the “PSA”) might be completed.

6The respondent also asserts that there are criminal proceedings “arising from the alleged interaction that is the subject matter of this application”. The criminal charges are identified as “Robbery, Forcible Confinement, Weapons Dangerous, two counts of Possession of Weapon Contrary to Prohibition Order, Fail to Comply with Probation and Escape from Lawful Custody”. The respondent has included no information as to the dates that any of the listed charges were laid. The narrative of facts in the Response makes it clear that some of these charges could not have arisen from the interaction that is the subject of the Application; the Response indicates that a warrant for the applicant's arrest for alleged involvement in a robbery was the reason the officers approached the applicant on the date of the incident that is the subject of the applicant's allegations in this Application. While specific facts are not given, I accept that it is probable that some of the listed charges arise from the interaction on the date indicated in the Application.

7The Request states that “the prosecution of these charges is still pending”, and gives no further information as to the current status of the criminal proceedings against the applicant.

8In its Request, the respondent argues that “there is good reason not to require a response”. First, the respondent states that “the proper respondent or respondents to this application have not yet been determined”. The Request asserts that the Toronto Police Services Board is not involved in the investigation of PSA complaints against officers. The respondent also states that if the Chief of Police were required to respond to the Application, “he would be placed in a conflict position whereby he not only has to investigate the PSA complaint but has to defend the application as well”. Finally, the respondent states that “an early response by an individual officer with respect to the within application may compromise his or her right in the PSA complaint to not provide evidence at a disciplinary hearing pursuant to section 83(6) of the PSA, should one be held”.

ANALYSIS AND DECISION

9The 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 (Code s.45; Rule 14.1).

10The initial consideration for the Tribunal in deciding whether or not to defer consideration of an Application is whether the same facts and issues are being raised before another decision-maker with the authority to deal with issues arising under the Code.

11Applications before the Tribunal may raise facts or issues which overlap with those in other concurrent processes, in which human rights issues are not clearly engaged. In this type of case, in exercising its discretion to defer, the Tribunal will consider factors such as the subject matter of the other process, its nature, the type of remedies available, the status of the other proceeding and what steps that have been taken to pursue it. See Howard v. Halton Condominium Corporation No. 59, 2009 HRTO 966, at paras. 13-14

12The respondent’s Response and Request, and the appended complaint to the OIPRD make it clear that this is one such case; one of the allegations in the Application is assault by police officers, and some of the criminal charges may have arisen from the incident that is the subject-matter of the Application. In this case, there is a possibility that, at some point, a court or tribunal could make findings of fact that are relevant to the subject-matter of this complaint. Had a court or tribunal already done so, a party might properly argue that this Tribunal should accept such findings: see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.

13Having said this, in considering the possibility of overlap of factual issues, I must also consider the status of the other processes relevant to this Application, and what steps have been taken in those processes.

14It is a commonplace that some criminal charges, having been laid, are never heard by a court for various reasons. As noted above, I infer from the nature of some of the charges that it is probable that some of the charges listed by the respondent arise from the interaction on the date indicated in the Application. However, the respondent has given no precise information concerning which of the criminal charges arose from the incident, and no information about the prosecution of those charges.

15It is also possible that a complaint to the OIPRD might eventually result in a disciplinary hearing under the PSA at which findings of fact or law could be made that are relevant to this Application. However, having filed a letter from the OPIRD that directs the Chief of Police to complete the investigation by May 31, 2012, the respondent has given no information other than to say that the investigation was ongoing as of April 13, 2012.

16In respect of the respondent’s submissions concerning “proper” respondents, this matter has been addressed repeatedly by this Tribunal. As noted in Surh v. Toronto Police Services Board, 2011 HRTO 45,

The question of naming organizational respondents in applications regarding police services in Toronto has been the subject of litigation, both in this Tribunal and in the courts. In a series of cases, the Toronto Police Services Board (“Board”) took the position that only the Chief, and not the Board, was responsible for the actions of an individual police officer. The Divisional Court recently held that a police services board is responsible for the actions of individual police officers in the course of their employment pursuant to s. 46.3(1) of the Code and is a proper respondent to a Tribunal application relating to such actions. See Shaw v. Phipps, 2010 ONSC 2884, at paras. 105-121 (“Phipps”). Leave to appeal this decision has been sought on other issues, but not respecting the legal liability of the Board.

…

In another series of cases, the position has been taken that neither the Board nor the Chief is required to respond to an Application in which an applicant names the “Toronto Police Service” as the respondent. This argument was rejected, with the Tribunal expressing on two occasions its concern about the failure of the Board to respond to applications that clearly intended to name the legal entity responsible for police services in Toronto.

(at paras 3 and 5)

17The most recent decision in this series is Milne v. Toronto Police Services Board, 2011 HRTO 1494. In that decision, on its own initiative, the Tribunal amended the names of the respondents to Toronto Police Services Board and Chief of Police, Toronto Police Service, and ordered counsel for the respondents to provide a copy of the decision to all lawyers in the City Solicitor’s Office who regularly work on police human rights applications, and all individuals in private firms who regularly work on police human rights Applications.

18From the statements made in the Request, it appears that, although the respondent has filed a Response, it may be contemplating yet again an argument that the named respondent is not the proper respondent. This is would be difficult to understand, given the majority decision of the Divisional Court in Shaw v. Phipps, 2010 ONSC 3884 (at para. 112) that the Toronto Police Services Board “is liable for the discriminatory acts of individual police officers”, (a decision that was not appealed by the respondent), as well asfindings by the Tribunal in previous cases that the Toronto Police Services Board should respond to applications naming the “Toronto Police Service”, without prejudice to its position about its legal liability.

19The Request asserts that the Toronto Police Services Board is not involved in the investigation of PSA complaints against officers. However, this is an Application under the Code rather than a PSA complaint, and the 2010 decision by the Divisional Court Phipps has confirmed that a police services board is responsible for the actions of individual police officers in the course of their employment pursuant to s. 46.3(1) of the Code and is a proper respondent to a Tribunal Application relating to such actions.

20The respondent has suggested that if the Chief of Police were required to respond to the Application, “he would be placed in a conflict position”. The respondent has not explained the nature of the alleged conflict. Further, the Chief of Police has by now, as directed, presumably finished the investigation into the applicant's complaint to the OIPRD. Finally, the respondent is entitled to conclude, from previous decisions of this Tribunal such as Milne, above, that the Toronto Police Services Board, rather than the Chief of Police might deal with the Application on the merits.

21Finally the respondent’s assertion that “an early response by an individual officer with respect to the within application may compromise his or her right in the PSA complaint to not provide evidence at a disciplinary hearing pursuant to section 83(6) of the PSA, should one be held” does not appear relevant in the circumstances of this case, as no individual officers have been named as respondents. If this issue were to arise in the course of this Application, it could be dealt with at that time.

22The applicant, who is unrepresented, named the Toronto Police Service in an obvious attempt to name the legal entity responsible for police services in Toronto. In the circumstances, the Tribunal will once again amend the name of the respondents to Toronto Police Services Board. As noted in Phipps, above, at para. 114, the Chief of Police may choose to accept liability, in which case it is open to the respondent to apply to amend its Response accordingly.

ORDER

23In the circumstances, the Tribunal Orders as follows:

(a) On its own initiative, the Tribunal amends the names of the respondents to Toronto Police Services Board;

(b) The Application will proceed, with the parties being offered a chance to attempt mediation.

24I am not seized of this matter.