Shallow v. Toronto Police Services Board, 2013 HRTO 1409

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roger Shallow

Applicant

-and-

Toronto Police Services Board; Toronto Police Association; Gail Shields, Paul Clarke, Michael Harnich, Arleen Duffy and Rob Lyon

Respondents

-and-

Ontario Human Rights Commission

Intervenor

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: August 16, 2013

Citation: 2013 HRTO 1409

Indexed as: Shallow v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Roger Shallow, Applicant

Donald McLeod, Counsel

1This is an Application filed in October 2008 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods and services because of colour and race. In Interim Decision 2013 HRTO 834 (the “Decision”) I dismissed a part of the Application pursuant to section 34(11) of the Code and deferred other aspects of it pursuant to section 45.

2The applicant has filed a Request for Reconsideration of the Decision in which I dismissed a part of the Application.

3The part of the Application which was dismissed related to a claim of reprisal against the Toronto Police Association (“TPA”). A civil claim had been issued prior to this Application being amended at the instance of the application to add the TPA as a respondent and the claim of reprisal by the TPA. The civil claim is framed as a claim of libel and defamation by the TPA and some of its officers. The TPA brought a Request that the Application be dismissed or deferred on a number of bases. As indicated that part of the Application was dismissed pursuant to section 34(11) of the Code.

4In his Request for Reconsideration (Request) the applicant claims that the Decision is inconsistent with established jurisprudence and it raises a matter of general and public importance. See Rule 26.5(c) below.

5The respondent was not called upon to respond to the Request.

6The applicant also seeks a clarification of the Decision which I will discuss below.

DECISION

7Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

8The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

9The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

10As can be seen from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. The Tribunal may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

11The Request is denied.

12The Tribunal has held in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the applicant clearly disagrees with my conclusions, I am satisfied that his submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

13The essential argument of the applicant is that because the courts have long held that there is no independent tort of discrimination a human rights claim attached to a civil claim dies if the civil claim is otherwise dismissed. The applicant cites a number of cases where the failure of the civil claim, a wrongful dismissal for example, which included a claim for an order pursuant to section 46.1 of the Code, was fatal for the Code claim. The applicant argues that this is unfair and a denial of natural justice and due process.

14I understand the applicant’s submission and for purposes of this determination accept that the applicant has fairly set out the law on the point that the failure of the primary civil claim will defeat any Code claim included in it. I note that this was not an argument that was made at the hearing where these issues were canvassed. For this reason alone I would dismiss the Request. However, I have considered the Request and fail to see how this potential consequence of the applicant choosing to proceed with a civil claim raising the same issues raised in the Application makes the Decision inconsistent with established jurisprudence. On the contrary, in my view, the Decision is entirely consistent with Tribunal jurisprudence on the application of section 34(11).

15The Tribunal’s understanding of section 34(11) does not include a consideration of the possible outcomes of the civil litigation in which the Code claim has been included. A very similar argument was made by an applicant in Grogan v. Toronto District School Board (“Grogan”) 2011 HRTO 1196. In the reconsideration Decision the Tribunal responded to the argument as follows:

The possibility that the civil claim may be dismissed is not a basis for reconsideration of the decision. Section 34(11) is a jurisdictional bar. In determining whether it applies, the Tribunal does not have the discretion to refuse to apply it based on an assessment of the potential strength of the civil claim. I did not do so in arriving at my decision, and it would not be proper to take this into account in deciding this Request.

16The determination of the Tribunal in Grogan was upheld by the Divisional Court on an application for judicial review (2012 ONSC 319 (Feb. 10, 2012). The Court dealt with essentially the same argument as is raised here at paras 48 to 52 of its reasons:

Section 34(11), however, is not discretionary. It says that a person "may not make an application'' in the face of an outstanding civil application. In other words, the Tribunal does not have discretion to proceed when the applicant has also commenced a civil action involving the same alleged Code infringements. It does not matter that an applicant asserts the intention to withdraw the civil action, or that counsel for the Board might intend to argue before the superior court that the matter should be withdrawn as being a matter of labour relations

The applicant argues that the application of s. 34(11) in the present circumstances could leave her, and persons like her, without a remedy for human rights infringements. While persuasive on its face, this argument cannot be sustained.

First of all, even if the civil action were to be dismissed, it might remain open to the applicant (or her bargaining agent) to raise these issues through a labour grievance.

Second, and most important, the Code treats concurrent civil actions differently than it treats concurrent administrative proceedings. It is not open to the Tribunal to proceed if s. 34(11) is applicable, whereas it has discretion over whether to continue proceedings where the parallel proceeding is an administrative one. In short, s. 34(11) requires an applicant to choose between the Tribunal and a (concurrent) civil action. It is not up to this court, absent a constitutional challenge, to question the legislator's clear position on this point.

17And in response to an argument that essentially called on the Tribunal to anticipate what a court might do with a claim before it raising a Code issue, the court held as follows at paragraph 46:

In addition, s. 46.1 is for the courts to apply, not the Tribunal. It would be entirely inappropriate for the Tribunal to speculate as to what the court might do in relation to the civil claim.

18For these reasons the Request is dismissed.

Request for Clarification

19The applicant who is a lawyer requests that I clarify the Decision to make clear that any failures on his part to comply with Tribunal directions were the responsibility of his former counsel and not him personally. The applicant has provided an affidavit to this effect. Former counsel has not been notified of this request and accordingly has not been heard from about it.

20This is an unusual request and it is not clear under the Tribunal’s Rules whether or not I have the authority to make such a clarification. The Decision, consistent with the Tribunal’s style refers to the parties generally as applicant, respondent etc. The normal approach is not to differentiate between a party and their representative and normally such a distinction would not be material to any issue before the Tribunal.

21The issue in the Decision was an argument by the various respondents that the applicant’s failure to comply with various directions constituted an abuse of process meriting the dismissal of the Application. I rejected the respondents’ arguments.

22I accept that the applicant may have been unaware of the specifics of the Tribunal’s various directions and may have been unaware that his counsel was not complying with them. The Decision should not be interpreted as necessarily suggesting that these failures were those of the applicant personally. However in all of the circumstances I find that it would not be appropriate to further clarify or modify my reasons in the Decision.