Ashraf Riad v. The Regional Municipality of Waterloo Police Services Board, Brian Etheridge and Anita Etheridge, 2013 HRTO 2088

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashraf Riad Applicant

-and-

The Regional Municipality of Waterloo Police Services Board, Brian Etheridge and Anita Etheridge Respondents

INTERIM DECISION

Adjudicator: Ian R. Mackenzie Date: December 17, 2013 Citation: 2013 HRTO 2088 Indexed as: Riad v. Waterloo (Police Services Board)

APPEARANCES

Ashraf Riad, Applicant Self-represented

Regional Municipality of Waterloo Police Services Board, Respondent Gary Melanson, Counsel

Brian Etheridge and Anita Etheridge, Respondents Melanie Reist, Counsel

1The applicant filed an Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), alleging discrimination with respect to services, goods and facilities on the basis of race, colour, place of origin, citizenship and creed. The applicant self-identifies as Middle Eastern, Muslim and Brown.

2The applicant is the neighbour of the personal respondents, who are a police officer and assistant crown attorney. The applicant also alleges that the Regional Municipality of Waterloo Police Services Board (the “PSB”) discriminated against him in their investigation of his complaints against the personal respondents.

3The Application was deferred by the Tribunal by Interim Decision, 2010 HRTO 1807, pending the completion of two proceedings: a proceeding under the Police Services Act and a peace bond application under the Criminal Code. Those proceedings have been completed and the Application was reactivated by the Tribunal by Interim Decision, 2012 HRTO 148.

4The respondents have filed a Request for an Order during a Proceeding (RFOP) requesting the dismissal of the Application on the basis that the two other proceedings have appropriately dealt with the matters raised in the Application (section 45.1 of the Code). The personal respondents also filed an RFOP seeking dismissal of the Application on the basis that it does not raise issues covered by the Code, but arises out of a conflict between neighbours of adjoining properties.

5In the Interim Decision reactivating the Application, I ordered a hearing on the RFOP relating to section 45.1 of the Code. I heard submissions of the parties on May 1, 2012.

6After hearing submissions from the parties on section 45.1, I issued a Case Assessment Directive indicating that I would defer issuing a decision until the Tribunal issued its decision in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 and until the parties had provided further submissions related to that decision. Claybourn is a panel decision of the Tribunal, issued after the Supreme Court of Canada issued its decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19.

7In this decision, I have considered the original submissions of the parties as well as their supplementary submissions (summarized in the “Submissions” section below).

BACKGROUND

8Brian and Anita Etheridge (the “Etheridges”) are neighbours of the applicant and his family. Brian Etheridge is a police officer employed by the PSB. Anita Etheridge is employed by the Ministry of the Attorney General as an Assistant Crown Attorney. The properties of the personal respondents and the applicant share a common property line.

The Application

9The applicant has provided a detailed narrative in his Application. The allegations against the respondents relate to events from 2007 until January of 2010. The allegations relate to a number of interactions between the Etheridges and the applicant and his family relating to a property line dispute and the draining of a swimming pool. The applicant alleges that the actions of the personal respondents were motivated by discrimination. In addition, the applicant alleges that Brian Etheridge made racial comments about the applicant. The applicant alleges that Anita Etheridge told the applicant she was a crown attorney and he alleges that this implied that she represented the law and “is capable of harming us”. The Application also alleges that Brian Etheridge inappropriately accessed a police data base to run a criminal search of the applicant and parked police cars inappropriately near the applicant’s property.

The Police Services Act Complaints

10The applicant made two complaints under the Police Services Act (“PSA”) about the conduct of the respondent, Brian Etheridge. The first complaint was filed on June 10, 2008. The complaint contained allegations identical to many of the allegations in the Application. The applicant agreed to an informal resolution of the complaint and signed a document indicating his acceptance of the resolution on August 19, 2008.

11The second complaint was made in August of 2009. In the complaint, the applicant states that Brian Etheridge displayed harassment that was racially motivated. The complaint also referred to racial comments made by Brian Etheridge to the applicant. The complaint does not refer to Anita Etheridge. An investigation was conducted by the PSB, including interviews of the applicant, his family members and the personal respondents. In a letter sent on January 19, 2009, the Public Complaints Branch of the PSB determined that the complaint was unsubstantiated.

12The applicant requested a review of the decision by the Ontario Civilian Police Commission (“OCPC”). The decision of the OCPC was issued on December 10, 2010. The Review Panel concluded:

Upon review, the Panel examined your complaint in detail, and were satisfied that the conclusions reached by the Waterloo Regional Police Service are not unreasonable. The Review Panel is aware of your concerns outlined in your complaint and further submissions, however, having taken the available information into consideration, the Panel is of the view that there are not sufficient grounds or reasons to change the decision made…

Peace Bond Application

13On February 8, 2010, the applicant swore a complaint (also known as an Information) seeking a peace bond against the personal respondents under the Criminal Code, claiming fear of personal injury or damage to property due to “continuous harassment from June 2007 to present…” The particulars provided in support of the Information allege that the personal respondents have, since June 2007, “been consistently intimidating, bullying, criminally and racially harassing, annoying and causing our family discomfort and the extreme feeling of being prisoners in our own home.” The particulars provided in the Information contain many of the allegations contained in the Application.

14The peace bond hearing before a Justice of the Peace took place over six days with 6 witnesses for the applicant and 7 witnesses for the personal respondents. The decision of the Justice of the Peace dismissing the peace bond application was issued on September 1, 2011. The decision is subject to a publication ban pursuant to section 486 of the Criminal Code. The applicant submitted that I should overturn the publication ban. I do not have jurisdiction to do so. Consequently, I have not referred to the contents of the peace bond decision in this decision. I have reviewed the decision.

15The decision of the Justice of the Peace was initially appealed by the Crown but that appeal was subsequently withdrawn.

SUBMISSIONS

16As noted earlier, the parties made oral submissions during a teleconference call and also filed supplementary submissions after the issuance of the Tribunal’s decision in Claybourn. In light of the decision in Claybourn, the respondents’ submissions on the PSA complaint process changed significantly, and I have not summarized their earlier positions.

17The submissions of the respondent PSB and the personal respondents were similar and I have not repeated those similar submissions. In addition, the PSB and the personal respondents adopted each other’s submissions.

18The applicant made allegations about the integrity of the peace bond proceeding. These allegations are not relevant to my determination of the issues under section 45.1 of the Code and I have therefore not summarized them.

19In his submissions, the applicant also made allegations relating to Anita Etheridge and Brian Etheridge that post-date the Application. I have not considered these allegations as they do not form part of the Application.

Submissions of the Waterloo Regional Police Services Board

20The PSB noted that the Claybourn decision is similar to the circumstances of this Application. However, it stated that the Tribunal is still required to assess each Application on a case-by-case basis; in particular, where the allegations in the PSA proceeding duplicate other allegations in other proceedings. In addition, it submitted that section 45.1 of the Code remains a viable preliminary objection.

21However, the PSB did concede that there is a strong case to be made for applying the reasoning in Claybourn and denying the request for dismissal based solely on the PSA determination of that complaint. But, the PSB argued, there should be recognition by this Tribunal of the multiple proceedings commenced by the applicant and that there is necessarily an intersection of those proceedings. It submitted that the PSA complaint was incorporated into the Peace Bond process and therefore provides an added element of fairness.

22The PSB submitted that the Peace Bond application meets the required test under s. 45.1 of the Code. The PSB noted that a Peace Bond application was, unlike a criminal proceeding, commenced by the applicant. It also noted that the allegations in the Peace Bond are essentially identical to the allegations in this Application. The PSB stated that the result of the hearing before the Justice of the Peace was a court of law determining whether the acts took place and whether there was harassment (in the broadest sense, even more general than under the Code) that could lead to an objective fear on the part of the Applicant. In that decision, the Justice of the Peace made findings of fact and credibility.

23The PSB submitted that while the Peace Bond was a personal matter between the Applicant and Personal Respondents, it is clear that all issues and possible evidence raised by the Applicant have been and are also contained in this Application – “the substance of the application”. Furthermore, those issues and evidence have been adjudicated by a judicial officer; findings of fact have been made and the process otherwise meets the test enumerated by the Tribunal as it relates to “another proceeding” and has been “appropriately dealt with” as intended and within the meaning of section 45.1 of the Code.

24The PSB submitted that the decision in Penner does not usurp the doctrine of issue estoppel: it simply provides that the “doctrine of issue estoppel allows for the exercise of discretion to ensure that no injustice results; it calls for a case-by-case review of the circumstances to determine whether its application would be unfair or unjust” (at para 35). It submitted that there must be an examination of the purpose behind issue estoppel in relation to the other proceeding (the Peace Bond) and whether its application would create an unfairness.

25The PSB submitted that the Peace Bond proceeding is not an administrative proceeding at all: it is a criminal court proceeding governed by statute and common law principles. The PSB submitted that the peace bond application must be distinguished from a criminal proceeding in that a peace bond application is a process commenced by the applicant, not the crown. It also noted that the parties have full status and opportunity to participate both in the calling of evidence and submissions. It submitted that the Peace Bond proceeding is inherently fair by design and practice, as the person who files the application frames the proceeding both in terms of the allegations brought forward and the evidence called to support those allegations. It also submitted that the allegations in the peace bond application are “essentially identical” to the allegations in this Application. It stated that the peace bond application culminated in the Justice of the Peace determining whether there was harassment that led to an objective fear for safety by the applicant.

26The PSB submitted that the Peace Bond proceeding clearly does not trigger the concerns cited in Penner (see para 47), but rather it meets the legitimate and reasonable expectations of the parties (and in particular, the applicant) and in no way undermines the efficacy and policy goals of the HRTO proceedings.

27The PSB submitted that the concerns regarding fairness cited in Claybourn (at paras 82-85) are not at issue with respect to a Peace Bond application, as opposed to a PSA complaint proceeding. The PSB submitted that the Peace Bond application has all the elements of fairness required to maintain the doctrine of issue estoppel:

• The allegations and evidence called were substantially identical to the allegations in the Application;

• The Peace Bond process is an independent process;

• The Justice of the Peace made findings on all of the substantive claims and issues that are contained in the Application; and

• The applicant relied upon violations of the Code as part of the Peace Bond application and were, in effect, seeking a personal remedy (see para 81 of Claybourn) imposed and enforced by the Justice of the Peace.

28The PSB submitted that the Application should be dismissed in accordance with section 45.1 of the Code.

Submissions of Brian Etheridge and Anita Etheridge

29The personal respondents adopted the submissions of the PSB.

30In addition, the personal respondents submitted that the issues raised in this Application have already been factually determined by the Justice of the Peace and, in particular, that the personal respondents were given no privileges because of their positions and had no more power than the applicant and his family.

31The personal respondents submitted that the applicant made allegations of racial harassment in his Information and the Justice of the Peace found the allegations to be unsubstantiated. The personal respondents submitted that it is not the Tribunal’s role to determine if the determination reached in another proceeding was correct; the Tribunal’s role is limited to determining whether the process was fair and that the applicant had an opportunity to present his case.

32The personal respondents submitted that the peace bond application provided a full and fair adjudication of the issues and constituted a proceeding within the meaning of section of 45.1 of the Code.

33The personal respondents submitted that the fact situation in this Application is unique and represents the kind of mischief that section 45.1 of the Code was designed to address. The personal respondents submitted that, as recognized in Penner, relitigation of an issue wastes resources, makes it risky for parties to rely on the results of prior litigation and unfairly exposes parties to additional costs (para 29).

34The personal respondents submitted that the doctrine of issue estoppel allows for the exercise of discretion to ensure that no injustice results and calls for a case-by-case review of the circumstances to determine whether its application would be unfair or unjust. They submitted that in this case an order dismissing the Application pursuant to s. 45.1 of the Code would be neither unfair nor unjust.

Submissions of the Applicant

35The applicant submitted that there are significant differences between the previous proceedings (the PSA complaint and the Peace Bond application) and this Application. He also submitted that the Tribunal has the subject matter expertise and jurisdiction to handle human rights allegations and remedies that the other proceedings did not have.

36The applicant submitted that the PSA proceeding is about the police officer’s employment and there is no provision for a remedy for the complainant. He stated that in a proceeding before the Tribunal, if a violation is found, there can be personal remedies awarded. In addition, the applicant submitted that applying issue estoppel in this case would have the effect of permitting the chief of police to become the judge of his own case.

37The applicant submitted that the peace bond application did not address human rights issues, but dealt solely with whether he had a reasonable fear for his safety and property. In addition, he submitted that the peace bond proceeding was against the personal respondents and not the PSB.

38The applicant submitted that fairness requires that this Application proceed and asked that the request of the respondents to dismiss the Application be denied.

DECISION

39This Decision addresses whether or not the police complaint process and the peace bond application appropriately dealt with the substance of the Application. It does not address the merits of the Application or whether some or all of the allegations fall under the Code.

40Section 45.1 of the Code provides that:

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.

41In this case, there were related proceedings both under the PSA and in a Peace Bond application. The proceedings under the PSA related to the allegations against Brian Etheridge and the PSB. The Peace Bond proceeding related to allegations against Brian Etheridge and Anita Etheridge.

42In Claybourn, the Tribunal considered section 45.1, in light of the Supreme Court of Canada decision in Penner. The Tribunal’s focus was on proceedings under the PSA, but the analysis can also be applied to other proceedings, such as the Peace Bond application.

43In Claybourn, the Tribunal summarized the conclusions of the SCC in Penner as follows (at para 62):

…The majority found that it would be unfair to use the results of the police disciplinary process to preclude Mr. Penner’s civil action for the following reasons:

• there were several provisions in the PSA that expressly contemplate parallel proceedings (paras. 50 to 52);

• the reasonable expectations of the parties would not be that a disciplinary hearing where Mr. Penner had no access to a personal remedy would preclude a civil action for substantial damages (paras. 53 to 58);

• Mr. Penner had no “financial stake” in the disciplinary hearing (paras. 59 to 61);

• there were important policy considerations at stake in these circumstances, namely the risk of adding to the complexity and length of disciplinary proceedings by attaching undue weight to their results through applying issue estoppel or the significant risk that potential complainants will simply not come forward with public complaints in order to avoid prejudicing their civil actions (paras. 62 to 63); and

• applying issue estoppel against Mr. Penner would have the effect of permitting the chief of police to become the judge of his own case, with the result that his designate’s decision had the effect of exonerating the chief and his police service from civil liability, which the majority regarded as a serious affront to basic principles of fairness (paras. 64 to 68).

44The Tribunal concluded that in relation to a PSA complaint, the following factors must be considered when determining whether a human rights application has been “appropriately dealt with” (at para 88):

• the reasonable expectations of the parties, including whether the statutory scheme contemplates parallel proceedings;

• the availability of any remedy or “financial stake” for the complainant in the disciplinary proceeding;

• and the broader policy implications of applying s. 45.1 in this context; and

• any residual discretion this Tribunal may have under s. 45.1 similarly would require consideration of these underlying principles.

45The Tribunal concluded (at para 89):

In our view, in light of the statutory provisions in the PSA that expressly contemplate parallel civil proceedings, the lack of any personal remedy or “financial stake” for complainants in the PSA disciplinary process, the broader policy considerations regarding the application of s. 45.1 of the Code to prevent applicants from proceeding with human rights applications where they have filed a complaint of misconduct under the PSA which has been found to be unsubstantiated, and the role of the chief of police in the process, we find that it is not in accordance with the reasonable expectations of the parties to apply s. 45.1 to dismiss an application on the basis that the same underlying allegations of misconduct have been addressed as a result of a complaint filed under the PSA. Accordingly, in respect of all three Applications before us, we find that these Applications cannot be regarded as having been “appropriately dealt with” under s. 45.1 of the Code and exercise our discretion not to dismiss these Applications but to allow them to proceed in the Tribunal’s process.

The PSA Complaint

46The Application contains identical allegations to some of the allegations in the PSA proceedings and there is no question that the allegations in the Application arise generally out of the same relationship issues with the personal respondents and the response to those issues by the PSB.

47The respondents concede that, in the circumstances, the PSA complaint proceedings did not appropriately deal with the Application. I agree that this is an appropriate concession. The reasoning in Claybourn is directly applicable to the PSA complaint at issue in this Application. I therefore conclude that the PSA proceeding cannot be said to have “appropriately dealt with” the Application.

The Peace Bond Proceeding

48The question of whether or not a peace bond proceeding is a “proceeding” within the meaning of section 45.1 of the Code has not been addressed before by the Tribunal. In this case, the particulars of the allegations contained in the Information (prepared by the applicant) included allegations of racial harassment. In addition, the allegations contained in the Information cover the same ground as the allegations in the Application. The PSB was not a party to the peace bond proceeding.

49A peace bond proceeding is a judicial proceeding. The parties to a peace bond application are the Crown and the individual or individuals being complained about. A Crown Attorney argued the case for the applicant.

50Section 810 of the Criminal Code sets out the basis for a peace bond application:

810. (1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property.

(2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a summary conviction court having jurisdiction in the same territorial division.

51The purpose of a peace bond hearing is to address personal safety and possibility of property damage. Although allegations of harassment are addressed in such a proceeding, the test against which the allegations are assessed is different than under the Code. In a peace bond application, the test is whether the alleged harassment caused the applicant to fear property damage or for his personal safety. Under the Code “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome: subsection 10(1). It follows that an applicant does not need to prove a fear of property damage or personal safety in an application under the Code. In a similar case, involving charges of criminal harassment (Hadley v. J.A.C.S. Cartage, 2010 HRTO 2291), the Tribunal noted:

The criminal proceedings did not deal with the subject-matter of the Application, namely whether the respondents infringed the applicant’s rights under the Code, appropriately or otherwise. The criminal proceedings dealt only with whether the applicant had committed an offense under the Criminal Code.

52Similarly, the peace bond proceeding did not deal with the issue of whether the respondents infringed the applicant’s rights under the Code. The Justice of the Peace was assessing whether the applicant had a reasonable fear for his safety and that of his family as well as a reasonable fear of damage to his property. She concluded that he did not prove such a reasonable fear. The Justice of the Peace made no findings related to discrimination on the basis of the prohibited grounds relied on in this Application. I therefore conclude that the peace bond application has not appropriately dealt with the Application, within the meaning of section 45.1 of the Code.

53In the process of coming to her determination on the peace bond application, the Justice of the Peace made several findings of fact on allegations that are also contained in the Application. In some of those findings, she assessed the credibility of the applicant. The adjudicator assigned to a hearing of this matter will have to determine if these findings of fact are binding.

Conclusion

54The request to dismiss the Application pursuant to section 45.1 of the Code is denied.

55The remaining objection of the respondents is that the Application relates to a private dispute between neighbours and is therefore not within the Tribunal’s jurisdiction. I did not hear submissions of the parties on this objection. In reviewing the allegations set out in the Application, many of the allegations do appear to relate to a conflict between neighbours. However, some of the allegations are related to the role of the police and the PSB. In addition, there are some allegations about Brian Etheridge’s conduct as a police officer. Accordingly, the Application will proceed in the Tribunal’s process. The remaining objection of the respondents can be addressed by the adjudicator assigned to hear the Application.

56I am not seized.