Marshall v. Toronto Police Services, 2013 HRTO 262

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Clem Marshall

Applicant

-and-

Toronto Police Services, Jason Goss and Toronto Police Services Board

Respondents

INTERIM DECISION

Adjudicator: Ian R. Mackenzie Date: February 13, 2013 Citation: 2013 HRTO 262 Indexed as: Marshall v. Toronto Police Services

WRITTEN SUBMISSIONS

Clem Marshall, Applicant Sharan K. Basran, Counsel

Toronto Police Services and Jason Goss, Respondents Lisa Cabel, Counsel

Toronto Police Services Board, Respondent Michele Wright, Counsel

Introduction

1Clem Marshall filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in services on the basis of race, colour and ancestry. Interim Decisions on various disclosure issues were issued on May 14, 2012 (2012 HRTO 966) and September 20, 2012 (2012 HRTO 1776). The hearing on the merits of the Application was scheduled for November 26, 2012. Prior to the hearing date, the respondents Toronto Police Services (TPS) and Jason Goss filed a Request for a Reconsideration of the Interim Decision in 2012 HRTO 1776. The Tribunal has deemed this to be a Request for an Order during a Proceeding (RFOP). In addition, the applicant filed an RFOP requesting further disclosure, an amendment of the requested remedies and the bifurcation of the hearing. The parties provided written submissions on these matters.

2The hearing on the merits of the Application commenced on November 26, 2012. An order excluding witnesses was granted.

3At the hearing I ruled on the request for amendment of the Application and the bifurcation of the hearing. I dismissed a request from a media representative to tape the testimony of the applicant. I heard further submissions on the outstanding disclosure issues. After the hearing date, the applicant requested an order relating to the recording of the hearing and the respondents provided submissions in response.

4This Interim Decision addresses the rulings I made on November 26, 2012 and the outstanding issues.

Request to Amend the Application

5The applicant requested an amendment to his request for monetary compensation for injury to feelings, dignity and self-respect. He also requested public interest remedies. The respondents did not object to the requested amendments.

6At the November 26 hearing, I allowed the amendment of the Application, on consent.

Bifurcation of Hearing

7The applicant requested that the hearing be bifurcated. He submitted that a determination on liability of the respondents should be made prior to a hearing on the requested remedies, in light of the public interest remedies requested. The respondents did not object to bifurcation.

8At the November 26, 2012 hearing, I ordered that the hearing would be bifurcated in the interests of an expeditious, just and fair hearing process.

Request to Record Evidence by the Media

9A member of the media requested permission to tape record the evidence of the applicant for a documentary he was preparing. The respondents objected to the recording on the basis that it would interfere with the proceedings. The applicant had no position on the request.

10I did not allow the recording of the hearing by the media because of concerns that it could interfere with the expeditious, just and fair hearing process.

Recording of Proceedings

11The respondents requested permission to have the proceedings taped and transcribed by a court reporter. The applicant did not object. I allowed the taping and reminded the parties of the Tribunal’s Practice Direction on the Recording of Hearings:

The HRTO may permit a party to have a court reporter record the hearing at the party's expense. Where the court reporter produces an official transcript the HRTO will require the party to provide copies to the panel and the other parties. Where an official transcript is provided to the panel and other parties it will normally be considered part of the HRTO's record of proceedings and may be included in the record filed by the HRTO in respect of any application made under the Judicial Review Procedures Act.

12The first day of hearing was recorded. After the hearing, the applicant requested that a copy of the recording or transcript be provided to him and the Tribunal. The applicant submitted that the Tribunal has the discretion to permit a party to retain the services of a court reporter to record the hearing. The applicant stated that in the past, the Tribunal has exercised this discretion on condition that a party orders a transcript and provides a copy to all parties and the tribunal: Segal v. Toronto (City), 2009 HRTO 1907 at paras. 17-18 and Clennon v. Toronto East General Hospital, 2009 HRTO 1242 at para. 4.

13In the alternative, the applicant requested that if the TPS orders the transcript, it advise the tribunal and the applicant, and provide a copy to each as soon as it is prepared.

14The TPSB submitted that the mandatory provision of a transcript was inconsistent with the tribunal’s practice direction on recording hearings. The practice direction only requires that a party provide a transcript if it orders one, the TPSB submitted. The TPSB stated that, typically, it would not order a transcript unless it was contemplating judicial review of the Tribunal’s decision. It submitted that ordering the production of a transcript would impose an unnecessary (and significant) cost on the respondent.

15The TPSB undertook to provide copies of any transcripts that it chose to order. It also stated that it would not object if the applicant ordered the transcript (at his own expense) and provided copies to the parties and the Tribunal.

16In reply submissions from the applicant, he stated that he would accept the TPSB’s proposal to provide copies of any transcript that it ordered.

17The proposal of the TPSB to provide copies of any transcript it orders to all parties and the Tribunal, with which the applicant agrees, is sufficient in this case.

18Therefore, if the TPSB (or any party) orders an official transcript of all or part of the proceedings, that party is required to provide a copy to the other parties and the tribunal.

Request for further disclosure

19In his RFOP, the applicant requested further disclosure of documents from the respondent TPS. At the hearing, the request was narrowed to documents (including training materials) in the following areas:

1. note taking;
2. record checks; and
3. traffic stops.

20The applicant submitted that the request for procedures on note taking was based on the fact that the notebooks provided in disclosure are “sparse” and that this lack of documentation in the notes is arguably relevant to the credibility of the officers. He submitted that in order to effectively cross examine the officers, it is important to identify the minimum standards for documentation of interactions with public.

21The applicant submitted that the field information report refers to “procedure 13-17 and that this procedure was a potential area of cross-examination and that this “sister” document ought to be disclosed.

22The applicant submitted that policies and procedures with respect to record checks and traffic stops were arguably relevant. He stated that the documents disclosed to date showed that there were multiple criminal record searches run on the applicant and the passenger. The applicant stated that it would be his position that the applicant was under heightened scrutiny in the context of what is alleged to be a routine traffic stop. He submitted that it was therefore relevant to have disclosure of the procedure for conducting record checks: are records checks mandatory or discretionary and, if discretionary, what are the factors in the exercise of that discretion? The applicant further submitted that the reason for a records check and the possible failure to follow a standard practice is a potential indicia of discrimination based on race.

23The applicant submitted that documents relating to the traffic stop policy were also arguably relevant. He submitted that the reason for the applicant being stopped is highly contested. He stated that if the traffic stop policy addresses the steps to take in certain circumstances, the disclosure of the policy will allow the applicant to assess whether or not the appropriate steps were taken in this case.

24The respondents TPS and Goss submitted that all of the information is in the field investigation report. The respondents submitted that the officer can speak to his practices and the decisions he made, in the context of this incident.

25The respondents submitted that the applicant was raising a new allegation about multiple records searches. The respondents submitted that they would have responded to this allegation if it had been raised at the appropriate time. They submitted that this allegation should not be allowed to proceed. The respondents also submitted that its witnesses would speak to the searches conducted.

26The respondent TPSB agreed with the submissions of the respondents TPS and Goss and expressed concern about the “ever-expanding” scope of the Application.

27The applicant submitted that when the Application was filed, the applicant would not have known that these records checks were conducted. The applicant submitted that the applicant alleged in his Application that he was placed under heightened scrutiny and the fact of records checks is simply part of the evidence to be adduced to support that allegation.

28The respondents TPS and Goss submitted that training material should not be disclosed because they are not arguably relevant. In R. v. Akinchets, 2011 SKPC 88, 2011 SKPC 088, the Provincial Court of Saskatchewan held that training materials were not relevant, “as the issue is what the officer actually did in the case being tried, not what officers are generally trained to do” (para. 36). The respondents also referred me to R. v. Pangman, 2000 MBQB 96.

29The applicant submitted that the Tribunal’s decision in McKay v. Toronto Police Services Board, 2009 HRTO 1220 was relevant in these circumstances. In that case, the complainant requested policies with regards to records checks and policy and procedures regarding conducting an investigative stop. The Tribunal ordered disclosure of policies and procedures, as well as training documentation.

Decision on further disclosure

30It is unfortunate that requests for disclosure are still arising at this late stage of the hearing process. However, in the interests of a fair and just hearing, it is necessary to consider these requests.

31Some of the requests for disclosure arise out of the disclosure of documents to the applicant. The applicant cannot be faulted for raising these requests at such a late stage of the proceeding. However, some of the disclosure requests are for information that could have been requested earlier in the process and, in my view, these requests warrant a more probing examination.

32The respondents object to the disclosure of training materials related to the various topics or areas of requested disclosure. Training materials can be arguably relevant to an application (see, for example, McKay) and there is no general prohibition against disclosure of such materials. Each request for disclosure must be examined in the context of the application and the stage of the proceedings. The same principles apply to requests for training materials.

33The applicant alleges that the notes taken by the officers are “sparse” and wishes to cross-examine the officers with reference to any note-taking policy. Note taking policies are only arguably relevant if one accepts the premise that the notes are, in fact, sparse. There is no point of reference for this premise. If, through cross examination, the applicant proves that the notes are “sparse”, then a policy on note-taking may become relevant. The applicant is able to cross-examine the witnesses on their regular practices with regards to note-taking. As in McKay, I decline to order the disclosure of note-taking policies or procedures.

34The field investigation report refers to “procedure 13-17”. Since this procedure is referred to in a relevant document, I can only conclude that it is arguably relevant. I therefore order its disclosure.

35The applicant seeks disclosure of policies, procedures and training materials relating to records checks. I agree that until he received full disclosure, the applicant could not have been aware of the scope of the records checks undertaken by the TPS. This is not a new allegation of discrimination. I understand the applicant to be arguing that the number of checks is an indicator of heightened scrutiny. The policies and procedures related to records checks are arguably relevant to the applicant’s position. As in McKay, I will therefore order the disclosure of policies, procedures and training materials related to records checks.

36On the other hand, the central aspect of the Application is the traffic stop of the applicant. The applicant could have requested disclosure of policies, procedures and training materials relating to traffic stops when he made his other disclosure requests. It is not appropriate to order disclosure relating to central issues raised in the Application at this late stage of the proceedings. Such a request could unnecessarily delay the proceeding.

Statutory Privilege

37In my decision in 2012 HRTO 1776, I ordered the disclosure of two of the records of race-related complaints under the Police Services Act (“the PSA”): responsive records #4 and #5. The respondents TPS and Goss (“the respondents”) have now raised an objection to the disclosure of these two records. Responsive record #4 relates to the complaint filed by the applicant related to the incident at issue in his Application. Responsive record #5 relates to a complaint by an unrelated third party. The responsive records include the complaint and the investigation reports.

38The respondent TPS is relying on section 95 of the Police Services Act (the “PSA”) to support its claim of statutory privilege:

95. Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,

a) as may be required in connection with the administration of this Act and the regulations;

b) to his or her counsel;

c) as may be required for law enforcement purposes; or

d) with the consent of the person, if any, to whom the information relates.

39Also relevant to the submissions of the parties is subsection 83(8) of the PSA:

(8) No document prepared as the result of a complaint made under this Part is admissible in a civil proceeding, except at a hearing held under this Part.

Submissions of the respondents on statutory privilege

40The TPS submitted that the privilege established under this section of the PSA has been confirmed by Ontario courts: Kernohan v The Queen et al, 2009 CanLII 37711, held that the privilege established by ss. 69 and 80 of the PSA (now ss. 83 and 95) is absolute in respect of civil claims; and in Andrushko v Ontario, [2011] O.J. No. 3693, the court held that the PSA establishes a statutory privilege in relation to both information and documents acquired in the course of duty under Part V unless captured by one of the exceptions set out in section 80 (now s. 95).

41In Andrushko, the Divisional Court held at paragraphs 17, 18 and 22:

When s. 69(9) is read in context with ss. 69(8), (10) and 80, it is clear that confidentiality extends to both information and documents.

Nor is it correct that s. 80 confidentiality only applies to disciplinary proceedings and not to civil proceedings. The section provides that persons engaged in the administration of Part V must preserve secrecy as to information obtained in the course of their duties under that Part, but the prohibition against communication of such information is complete except as is set out in the four specific exemptions in the section itself.

The enactment of s. 80 impacts upon the precedential value of the Lloyd decision. That section makes it clear that all of the information obtained in the course of duty under the administration of Part V of the PSA is to be kept secret and not communicated except in the enumerated circumstances, which did not apply in Lloyd and do not apply here.

42The TPS submitted that a hearing before the Tribunal is clearly a "civil proceeding". The TPS also submitted that the exceptions to the statutory privilege set out in section 95 of the PSA are not applicable in this case. The TPS stated that, accordingly, the statutory privilege attaches to the documents included in Responsive Records #4 and #5 and the Tribunal cannot order that they be produced.

43In the alternative, the TPS submitted that if Responsive Record #5 is ordered produced, then certain restrictions should apply. It noted that the complainant in that responsive record has not provided consent to the disclosure and has not been provided with notice of any disclosure. The TPS referred to Hume v Ghadban et. al, [2011] O.J. No. 4786 at para. 42:

It is one thing for the plaintiff and the defendant to waive privilege concerning the plaintiffs own complaint. It is another to produce information about complaints made by other complainants. The identity of those complainants and identifying particulars concerning those complaints would require the consent of the earlier complainants because they are persons to whom the information relates. This can be resolved in two ways. Firstly the Board which has the obligation to produce relevant documents could be required to request the permission of those complainants. Secondly, and perhaps more practically, the Board could produce a summary of the complaints and a sanitized redacted copy of documents that are subject to the duty of secrecy but not prohibited inadmissible documents.

44The TPS submitted that the documents related to Responsive Record #5, if ordered to be produced, should be provided in a redacted form.

Submissions of the applicant on statutory privilege

45The applicant noted that the TPS had changed its position with respect to the applicant's PSA complaint and was now relying on statutory privilege. The applicant also stated that the late stage at which statutory privilege is being raised when the responsive records were produced to the Tribunal appears to be an attempt to prevent the applicant from reviewing responsive record #5.

46The applicant submitted that I should evaluate the conduct of the respondents in assessing whether the Tribunal's processes are being used in a just, fair and expeditious manner and whether reconsideration is appropriate.

47The applicant submitted that the Tribunal and the courts have ordered the production of PSA complaints and admitted into evidence investigation reports in several instances. In A.F. and Durham Regional Police Services Board, 2010 HRTO 1508 the investigation report of the applicant’s complaint was determined by the Tribunal to be arguably relevant and admissible evidence:

In my view while I have found the police investigation in the context of a complaint under the PSA is a "proceeding" within the meaning of section 45.1 of the Code. I cannot find that the report from such an investigation is a judicial decision as is required for the application of the doctrine of issue estoppel. Accordingly, the second requirement for the application of issue estoppel has not been met. As a result, I find that I am not bound by the findings of fact made in the police investigation report. Nonetheless, in my view, it is appropriate for this investigation report to be introduced into evidence before the Tribunal at the hearing in this matter and the Tribunal may have regard to the findings of the report in weighing the evidence and making its factual findings in this proceeding.

48The applicant submitted that in proceedings involving the application of section 45.1 of the Code the TPS has relied upon the original PSA complaint filed by an applicant, investigation reports, and any decision by the Chief or his delegate under the PSA about whether he/she concurs with the investigation report to argue that the substance of the Application has been appropriately dealt with during the public complaints process under Part V of the PSA. The applicant noted that similar comments on the contradictory application of statutory privilege under the PSA were made in Hume v. Ghadban et al. [2011] O.J. No. 4786. That case was a civil action for excessive use of force and assault. The defendant police force did not fully comply with the disclosure of prior use of force complaints and relied on statutory privilege. However, in that case the police relied on the plaintiff’s own complaint and the hearing under the PSA to argue that the civil action was barred based on issue estoppel. The Court made the following comment:

What is striking in Penner [another court decision] is that the police officer was able to put information about the discipline process before the court and the issues of admissibility and confidentiality surrounding that information are nowhere mentioned by the Court of Appeal. It is not clear what if any actual evidence was before the court but certainly was detailed information from the complaint process in the record. It may be surmised that neither party objected to this.

That was not the case in the motion before McNamara J. which as noted above was heard in November 2009. In seeking to raise estoppel, the defendant relied on both documents and information relating to the Part V complaint by the plaintiff. This included the complaint form itself and the decision of the hearing office. In that motion, the plaintiff argued that the evidence was inadmissible and should be excluded while it was the defendant who argued strenuously that both the document and the information could be used for the purpose of the issue estoppel. Indeed the defendant relied on the distinction between documents and information...It was the defendant who took the position that in order to defend himself in the civil action he must be able to make full answer and defence. Because the motion was dismissed, the judge did not deal with the cross motion to strike the responding affidavit. What we have however, both in this case and in Penner are decisions in which the possibility of a police disciplinary hearing creating an estoppel in the civil proceeding is acknowledged. This would require the record of the complaint and its disposition to be put before the Court.

49The applicant submitted that the different and contradictory approaches to production and admission of PSA complaints, investigation reports, and dispositions are important to consider when interpreting the relevant sections of the PSA.

50The applicant stated that PSA provisions on admissibility and confidentiality do not apply to a hearing before the HRTO. The applicant noted that although the respondents stated that this hearing is clearly a civil proceeding, no case is cited in support of this proposition. The applicant further noted that the cases relied on by the respondents are all civil actions against the police.

51The applicant referred to a decision relating to a similar provision in the Regulated Health Professions Act (Forget v. Sutherland (2000) 2000 CanLII 5761, 134 O.A.C. 117 (C.A.) cited in Middleton v. Sun Media (2006) 2006 CanLII 84666, 268 D.L.R. (4th) 347 and Kernohan v. Ontario (pp.8-9). In that case, the Court of Appeal held that the purpose of such a provision was to encourage the reporting of complaints and to allow such complaints to be fully investigated without any participant "fearing that a document prepared for College proceedings can be used in a civil action."

52The applicant noted that “civil” is defined in the Black's Law Dictionary as "of or relating to private rights and remedies that are sought by action or suit, as distinct from criminal proceedings." He submitted that, a hearing before the Tribunal transcends purely private rights and that the rights under the Code are quasi-constitutional in nature with a significant public interest component as set out in the Code’s preamble. The applicant stated that if the legislature had intended “civil proceedings” to refer to all proceedings it would have used the phrase “legal proceeding”, “civil and administrative proceedings”, or more simply, “proceeding”.

53The applicant submitted that if the Application is determined not to be a “civil proceeding”, the responsive records are not subject to a statutory privilege. The applicant stated that the law is in a state of flux and any suggestion of an absolute privilege for all documents in a personnel or complaint file of an officer is not supported by a careful analysis of the interpretation of the relevant sections of the PSA.

54The applicant stated that documents that are at minimum not caught by the PSA would include any documents that pre-date and pre-exist the filing of a complaint and the complaint itself. This interpretation was confirmed by the Tribunal in Washington and TPS, 2009 HRTO 640 at paragraph 16 where the Tribunal held that the complaints themselves are not caught by section 69(9) and further that the production of documents produced as a result of a complaint fall within an exception under section 80(c) of the PSA:

I have some difficulty seeing how producing the complaints themselves engages s. 69(8) which deals with testimony by persons administering the PSA, or s. 69(9), which deals with documents prepared as a result of a complaint. I am also of the view that enforcement of the Code is "law enforcement" within the meaning of section 80. Nevertheless, it may be determined on judicial review that this interpretation is not correct, and the sections of the Code authorizing production orders by the Tribunal do not take precedence over these PSA provisions.

55The applicant submitted that his position differs from the above-noted comments in one respect. He stated that he does not have to fit within one of the exceptions under section 95. For example, consent of the person to whom the records relate is not required when the document at issue is the original complaint and therefore not caught under section 69(9) (documents prepared as a result of a complaint).

56In the alternative, the applicant submitted that if the provisions of the PSA are applicable, the best option to reconcile the contradictory decisions to either exclude or admit the PSA complaint, including in the context of issue estoppel or section 45.1, is to find that at minimum the original complaint of the applicant is not covered by the PSA provisions. The applicant submitted that this interpretation is consistent with the ordinary meaning of these provisions when read in their legislative context, in conjunction with one another, and consistent with the objects and purpose of the PSA legislation.

57In the further alternative, the applicant submitted that if the responsive records fall under the relevant PSA provisions, the Tribunal should find that the respondent Goss has consented to the release of the records or waived any privilege by expressly not objecting to the production of the responsive records and by producing them.

58The applicant stated that in the further alternative, the Tribunal should follow its decisions relating to the statutory privilege applicable to Ontario Student Records ("OSR") under the Education Act in circumstances when the applicant fails to consent to the release of OSR that are found to be arguably relevant. In those cases (e.g., G.A. by his next Friend O.A. 2011 HRTO 2011 and T.S. by his next friend P.S. and Toronto District School Board 2011 HRTO 1471), the Tribunal has ordered the applicant to consent to the release of OSR or has taken other measures to prevent an abuse of the Tribunal's process including dismissal of an Application when the applicant has withheld consent. The applicant submitted that applying this principle conversely would entail the Tribunal ordering PC Goss and PC O’Neill to consent to the release of the applicant's PSA complaint.

59The applicant submitted that where legislation expressly contemplates that a statutory privilege can be waived or a party can consent to its production, it is not appropriate for the respondents to selectively withhold that consent where the complaints in question have been found to be arguably relevant and were ordered to be produced. In the view of the applicant, this thwarts the ultimate goal of a just and fair hearing on the merits.

60The applicant submitted that redaction of responsive record #5 is not appropriate. Firstly, the applicant submitted that consent of the third party is not necessary as the complaint itself is not a document prepared as a result of a complaint. Secondly, the applicant submitted that the situation in Hume relied upon by the respondents is easily distinguished from the present case. The applicant submitted that the arguable relevance of the responsive record in this case is similar fact evidence and/or evidence of a pattern of conduct, whereas in Hume, the evidence was relevant to an award of punitive damages against the Police Board based on its knowledge and alleged failure to take steps to deal with alleged aggressive history of the officer. The applicant stated that in Hume, the identity of the complainant was not relevant.

61The applicant also submitted that this issue had already been addressed in the September 2012 decision, where I had referred to the reasoning in Washington (at para. 7):

In my view redaction is not appropriate as the complainant and Commission are entitled to the details of who made the allegation to fully prepare their case and determine whether to seek to call the individuals who made the complaints as witnesses.

To redact the complaint would defeat the Applicant's ability to potentially rely on the record as evidence of a pattern of behaviour including but not limited to similar fact evidence.

Decision on statutory privilege

62There are two records at issue: the record of the applicant’s complaint (responsive record #4) and the record of a third-party complaint (responsive record #5). I will address each separately. The record includes the complaint and the investigation report.

63In 2012 HRTO 966, I reached the following conclusion on the arguable relevance of records relating to the investigation of the applicant’s PSA complaint (at paras. 56-57):

The applicant has not made any allegations of discrimination relating to the conduct of the PSA investigation. The Application is not an appeal or a review of the PSA investigation and, absent any allegations of discrimination in the conduct of an investigation, it is not the role of an adjudicator under the Code to determine if the investigation process was conducted properly. Any evidence obtained through that investigation has no bearing on the findings of fact that an adjudicator must make under the Code. The applicant will have a full opportunity to testify about the events and to cross-examine the police officers. Given the conclusion of the investigation report (which is in the applicant’s possession) there is no factual foundation to justify disclosure of statements made during the investigation for challenging the credibility of a witness. I therefore find that the documents and notes from the PSA investigation are not arguably relevant, in the circumstances of this Application.

The applicant stated that he had lost his copy of the letter of complaint under the PSA and requested disclosure of it. I have determined that documents relating to the PSA investigation are not arguably relevant, and this includes the originating letter of complaint.

64Subsequently, the applicant advised that he had located the letter of complaint. It therefore appears that the request for disclosure of the applicant’s responsive record is now moot, as the applicant has both the complaint and the investigation report. As noted, I have already ruled on the arguable relevance of those documents.

65The remaining disclosure issue is responsive record #5, relating to a third-party complaint. In 2012 HRTO 1776, I determined as follows (at paras. 22 and 27):

Responsive record #5 occurred approximately one month after the alleged incident in this Application. The allegations in this responsive record relate to a domestic dispute to which Constable Goss and another officer were called to investigate. The participants in the alleged domestic dispute were reported by the police officers and other witnesses to have been intoxicated. It was alleged that Constable Goss made a derogatory comment relating to Aboriginal status and also refused to lay criminal charges because the alleged victim was an Aboriginal person. The alleged derogatory comment was that he was “sick and tired of babysitting people like her”. The other party to the domestic dispute stated to the investigator that he did not hear any derogatory comments made by the officers.

Responsive record #5 does not involve a traffic stop, a drug-related inquiry or investigation, or an interaction arising under non-Criminal Code legislation, including the Highway Traffic Act and the Provincial Offences Act. The allegation of a failure to lay a charge under the Criminal Code is not similar to the allegations in this Application. The only aspect of the responsive record that is arguably relevant to this Application is the alleged comment made by Constable Goss. In assessing the strength of the evidence that the similar acts actually occurred, it is important to note that the other party to the domestic dispute did not hear any derogatory comments. However, the alleged comment made by Constable Goss is still arguably relevant. Accordingly, I order that responsive record #5 be released to the applicant, subject to the conditions set out below. Of course, an order for production at this stage does not mean that the evidence would necessarily be admissible at the hearing.

66The applicant is correct to note that police services, including the TPS, have in the past disclosed investigation reports such as the one at issue in this proceeding. In those cases, the respondents have clearly not raised any claim of a statutory privilege.

67The issue of statutory privilege of documents under the PSA at the stage of disclosure to the applicant has not been addressed by the Tribunal. In Washington, decided prior to the decisions of the Divisional Court in Andrushko and Hume and the Ontario Court of Appeal in Penner, the Tribunal addressed an argument about statutory privilege at the stage of disclosure to the Tribunal, in accordance with an O’Connor order. The Tribunal stated at para. 16:

I have some difficulty seeing how producing the complaints themselves engages s. 69(8), which deals with testimony by persons administering the PSA, or s. 69(9), which deals with documents prepared “as the result of a complaint”. I am also of the view that enforcement of the Code is “law enforcement” within the meaning of s. 80. Nevertheless, it may be determined on judicial review that this interpretation is not correct, and that the sections of the Code authorizing production orders by the Tribunal do not take precedence over these PSA provisions. Accordingly, I must consider whether, if it is subsequently found that I should not have made the order that the documents be produced to the Tribunal, irreparable harm would be caused.

68The relevant provisions under the PSA are sections 83(8) and 95. Section 83(8) states that no document prepared as “the result of a complaint” is admissible in a “civil proceeding”. Section 95 requires “secrecy with respect to all information obtained in the course” of duties under the PSA investigation, with the following relevant exception: “c) as may be required for law enforcement purposes”.

69The responsive record consists of the PSA complaint and the investigation report. I first note that these restrictions on disclosure do not apply to the complaint itself. In any event, I have concluded that the disclosure of the responsive record is not prevented by these provisions of the PSA. A proceeding under the Code is not a “civil proceeding” and a hearing of an application under the Code is for a “law enforcement purpose”.

70“Civil proceeding” is not defined in the PSA. The Code does contain a reference to “civil proceeding” in subsection 34(11):

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn;

71The Courts of Justice Act, R.S.O. 1990, Chapter C.43 also defines (in section 1) actions and applications as “civil proceedings”. The reference to “civil proceedings” in the PSA, clearly refers to court proceedings. I therefore find that section 83(8) of the PSA is not applicable to a proceeding under the Code.

72The overall purpose of proceedings under the Code was articulated by the legislature in the Preamble to the Code:

… Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law,…;

And Whereas these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario;

73The Code is the law in Ontario relating to discrimination and the mechanism chosen by the legislature to enforce the law is an application to the HRTO. Although not binding on me, I note that under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 human rights proceedings have been found to be “law enforcement” matters: Human Rights Tribunal of Ontario (Re), 2010 CanLII 61929.

74Since I have concluded that an application under the Code is for a “law enforcement purpose”, the exception to the statutory privilege set out in section 95 of the PSA is applicable and the responsive record is therefore subject to disclosure.

75I have already addressed the issue of the redaction of responsive record #5 in the previous decision and the respondents have not convinced me of the need to revise that determination. Accordingly, I confirm that responsive record #5 is not to be redacted. In the previous decision, it was clear that the responsive record was not to be shared with any person who does not have a direct interest in this proceeding. If the responsive record is tendered as an exhibit, the parties can make further submissions on appropriate measures to protect any privacy issues.

76The Tribunal orders:

a. The Application is amended, as requested by the applicant;

b. The hearing is to be bifurcated as between a determination of liability and remedies, if any;

c. The recording of the hearing by a court reporter is permitted;

d. If any party to the Application orders a transcript of all or part of the proceeding, that party shall provide copies to the other parties and the Tribunal;

e. The media is not permitted to record the proceedings;

f. The applicant’s request for disclosure relating to note-taking is denied;

g. Procedure 13-17 is ordered to be disclosed;

h. Policies, procedures and training materials related to records checks is ordered to be disclosed;

i. The applicant’s requests for documents relating to traffic stops is denied; and

j. The order in 2012 HRTO 1776, ordering disclosure of responsive record #5 is confirmed.