Shallow v. Toronto Police Services Board, 2013 HRTO 834

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, Arleen Duffy and Rob Lyon Respondents

-and-

Ontario Human Rights Commission Intervenor

INTERIM DECISION

Adjudicator: David Muir Date: May 16, 2013 Citation: 2013 HRTO 834 Indexed as: Shallow v. Toronto Police Services Board

APPEARANCES

Roger Shallow, Applicant Donald McLeod, Counsel

Toronto Police Services Board, Respondent Antonella Ceddia, Counsel

Gail Shields, Paul Clarke, Arleen Duffy and Ralph Lyon, Respondents Naomi Calla, Counsel

Toronto Police Association, Respondent Caroline V. (Nini) Jones, Counsel

Ontario Human Rights Commission, Intervenor Sunil Gurmukh, Counsel

Introduction

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. This Decision deals with various Requests for Order During Proceeding ("Request(s)") filed by each of the respondents seeking the early dismissal of this Application, or in the alternative its deferral pending the conclusion of related civil proceedings.

2For the reasons that follow the Requests of the respondent are granted in part. The Application as it relates to the Toronto Police Association (TPA) is dismissed pursuant to section 34(11) of the Code. The Application as it relates to the remaining respondents is deferred pending the conclusion of an ongoing related civil suit.

Background

3The genesis of the various claims and actions under consideration here was the arrest and detention of the applicant in October 2007. Criminal charges were laid by the Toronto Police Service.

4The applicant was and remains an Assistant Crown Attorney employed by the Ministry of the Attorney General.

5The respondent Toronto Police Services Board ("TPSB") is responsible to oversee the operation of the Toronto Police Service. The individual respondents above are individual police officers appointed to the Toronto Police Service. These respondents are referred to in these reasons as the "TPS respondents".

6The Toronto Police Association (TPA) is an association of police officers employed by the Toronto Police Service and it represents officers in their employment relations with the Toronto Police Service.

7The Ontario Human Rights Commission is an intervenor in this case.

8In his Application as originally filed the applicant's allegations concerned the TPS respondents.

9The Application was deferred pending the outcome of related criminal proceedings. See 2008 HRTO 364. The criminal proceeding concluded on January 7, 2009 when the charges against the applicant were withdrawn by an independent prosecutor appointed to attend to the prosecution of the applicant.

10In July 2010 the applicant filed a Request seeking to amend the Application by the addition of the ground of reprisal; to add a claim for a financial remedy of $500,000, and to add the TPA and two of its officials as respondents.

11The applicant's Request to amend was granted in part in 2010 HRTO 1752. The applicant was permitted to add the ground of reprisal and to amend his remedial claims. The TPA was added as a respondent but the two officials of the TPA identified by the applicant were not. Pursuant to a subsequent Request of the TPA the applicant was directed to provide particulars of the general allegations and did so in December 2010 (see below).

The Application

12In the Application as originally framed the applicant alleged that he was subject to an unlawful arrest and strip search in October 2007 in whole or in part because of his race and colour.

13The Application was amended as indicated to include the allegation that the TPA had engaged in "a deliberate course of conduct designed to deter, punish and belittle the applicant for having filed a human rights complaint against members of the Toronto Police Association" (the individual respondents). The particulars of the complaint which the applicant provided in December 2010 were as follows:

a. That in June 2008 the TPA began a deliberate course of conduct intended to impugn the motives of the applicant for filing the Application and to undermine his ability to continue in his profession;

b. A letter dated June 26, 2008 from the TPA to the Assistant Deputy Attorney General questioning the applicant's continued employment as an Assistant Crown Attorney;

c. A January 7, 2009 Press Release entitled "TPA to file Formal Complaint" indicating that the TPA would be filing a complaint against an independent Assistant Crown Attorney for withdrawing the criminal charge against the applicant;

d. A January 8, 2009 press release entitled "TPA Alleges Misconduct in Dropping Charges Against Assistant Crown Attorney" indicating that a complaint would be filed against the Crown Attorney who withdrew the criminal charges against the applicant;

e. A letter dated February 25, 2009 from the TPA to Attorney General Chris Bentley alleging misconduct in relation to the events of October 2007.

f. A March 9, 2009 complaint about the applicant to the Law Society of Upper Canada related to the events of October 2007;

g. A letter dated June 23, 2009 from the TPA to the Attorney General Chris Bentley alleging that the Application was unmeritorious and that the conduct of the applicant made it impossible to work with him.

14In addition to this Application the applicant commenced civil actions against all of the respondents above. He also filed private information's against the individual respondents above and filed complaints under the Police Services Act (PSA)

The Requests

15The respondents have each sought the dismissal of the Application on a number of different bases. The TPS respondents argue that the Application is barred pursuant to section 34(11) of the Code because the civil claim made against them is essentially the same as the claim advanced in this Application. In the alternative the TPS respondents argue that the Application should be deferred pending the conclusion of the civil claim. The TPS respondents also argue that the Application should be dismissed as an abuse of process because of the applicant's non-compliance with Tribunal Orders and Directions.

16Additionally the TPS respondents take the position that the Application should be dismissed pursuant to section 45.1 of the Code because its substance has been appropriately dealt with in complaints that the applicant has made under the PSA. By way of further background, this Application was joined with several others raising a similar issue concerning the application of section 45.1 to PSA complaints (the lead case). An oral hearing before a panel established to consider the issue was scheduled to being in mid May 2012. However as a consequence of the applicant's failure to comply with directions to file his materials in respect of that issue it was separated from the others in a Case Assessment Direction issued on May 1, 2012.

17It was subsequently agreed in this case that the section 45.1 issue would be deferred pending the release of the Tribunal's decision in the lead case, which itself has been delayed pending the release of the Decision of the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 ("Penner").

18The TPA argues that the Application is barred pursuant to section 34(11) because the civil claim against it raises essentially the same claim as in this case. Alternatively the TPA argues as did the TPS respondents that the Application should be deferred pending the conclusion of the civil suit. The TPA also argues that the Application as it relates to it is out of time and should be dismissed for that reason. Finally the TPA argues that the Application should be dismissed as an abuse of process as a consequence of the applicant's failure to comply with the Tribunal's Orders and Directions.

The Civil Claims

The TPS respondents Statement of Claim

19The civil suit as against the TPS respondents includes the following claims:

a. Damages for malicious prosecution;

b. Damages for negligent investigation;

c. A declaration that the applicant was subject to an unwarranted, unlawful and unconstitutional strip search;

d. A declaration that the applicant was unlawfully arrested and detained contrary to the Charter;

e. Under various heads the applicant seeks $3.6 million in damages, pre and post judgement interest and costs.

20In this claim the applicant does not seek an Order pursuant to section 46.1 of the Code and there is no reference to the Code in the statement of claim. However the civil suit is in relation to the same facts as underlie this Application.

21The essence of the claim is captured in the following, from paragraph 24 of the statement of claim:

The charges against (the applicant) were instituted by the Defendants without reasonable or probable cause, they were instituted with malice and they were instituted in an effort to humiliate Mr. Shallow and teach him a lesson, to intimidate him and to dissuade him from pursuing his rights which had been breached by the Defendants and his efforts to hold the Defendants accountable for their wrongful treatment of him during the early hours of October 6, 2007. The Defendants not only initiated the prosecution of (the applicant) but actively took steps to continue the prosecution including attempting to interfere with the Crown's discretion in deciding to withdraw the charges.

22The statement of claim also includes allegations in relation to the conduct of the TPA, allegedly in response to the applicant's efforts to "exercise and protect his rights". The applicant alleges that the TPA wrote to the applicant's employer the Ministry of the Attorney General (MAG) in June 2008 to express concern that the applicant was still working as an Assistant Crown Attorney. The applicant also alleges that the TPA, on January 8, 2009 immediately after the charges against the applicant were withdrawn, issued a press release entitled "TPA Alleges Misconduct in Dropping Charges Against Crown Attorney". The applicant relied on the following passage from the press release:

The dropping of the charges on the day the trial was to start and the refusal of this Assistant Crown to meet with the officers to discuss the prosecution of the case is beyond unacceptable, it is a miscarriage of justice.

The TPA Statement of Claim

23The civil claim as against the TPA was issued 6 months before the Request to amend the Application by the addition of the TPA as a respondent and is framed as a claim of libel and defamation by the TPA and some of its officers. The applicant seeks $4.6 million under various heads of damages.

24The applicant relies on the following particulars:

a. The January 8, 2009 press release referred to earlier;

b. Three letters written to the applicant's employer on June 26, 2008, February 25, 2009 and June 23, 2009;

25The essence of the claim is that the conduct of the TPA and its officers "belittled and discouraged his resort to the criminal and civil courts and in his efforts to have his legitimate grievances adjudicated".

Analysis

26Because the circumstances of the Requests by the respondents are somewhat different I will deal with them in turn beginning with the Request of the TPA that the Application be dismissed pursuant to section 34(11). For the reasons that follow I find that this Application as it relates to the TPA must be dismissed.

27Section 34(11) of the Code provides as follows:

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; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

Section 46.1 of the Code provides as follows:

(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

28Section 46.1 provides authority for a court to include compensation for an infringement of the Code in an action otherwise properly before it. Section 34(11) is intended to ensure that, where a remedy in a civil proceeding includes or incorporates a claim for compensation arising from an infringement of someone's rights under the Code, that claim be determined by the court, and not subject to a second claim made to this Tribunal. It, along with other provisions of the Code, seeks to ensure that where substantially the same claim is advanced in another forum that it be litigated once. It is intended to eliminate duplicative court and Tribunal proceedings, where the Court proceeding incorporates a claim for compensation arising from the same alleged infringement of someone's rights under the Code as are raised in the proceeding before this Tribunal. Although the applicant does not make this argument, it is clear that there is no need that there be a specific request for an Order from the court pursuant to section 46.1 of the Code. See Beaver v. Dr. Hans Epp, 2008 HRTO 282. Nor does there need to be an explicit reference to the Code in the civil claim. See Borden v. Toronto Grace Health Centre, 2010 HRTO 1109 ("Borden").

29I find that the factual underpinning and one of the central allegations made in the Statement of Claim are essentially identical to the primary allegation in the Application and accordingly, based on the Tribunal's case law on the scope and meaning of section 34(11), this aspect of the Application must be dismissed.

30There is no dispute that the factual underpinnings of the Application and the Statement of Claim are essentially identical. The applicant argues and I acknowledge that the Statement of Claim is made in libel and defamation. I also accept the applicant's submission that the facts underlying the claim are not much in dispute and it may be largely a question of the court determining whether or not the statements and publications of the respondent are libellous or defamatory.

31However this is not the entirety of the case. I agree with the TPA that the applicant also claims that the defamation and libel was done for a purpose which it is claimed should attract significant aggravated, exemplary and punitive damages:

The Defendants both belittled and discouraged [the applicant] in his resort to the criminal and civil courts and in his efforts to have his legitimate grievances adjudicated. Their actions constituted a callous disregard for [the applicant's] rights and give rise to aggravated, exemplary and punitive damages.

32In my view the basis for this remedial claim is indistinguishable in any meaningful way from the claim advanced in the Application, which is substantially that the TPA engaged in "a deliberate course of conduct designed to deter, punish and belittle the applicant for having filed a human rights complaint against members of the Toronto Police Association". Accordingly I find that the applicant has commenced a civil proceeding which incorporates within its remedial claim a remedy for an alleged infringement of the Code – a reprisal for his having filed a human rights application. For these reasons the Application as it relates to the TPA is dismissed.

33Having dismissed the Application as it relates to the TPA for this reason there is no need to consider the other issues raised by this respondent.

34Different considerations apply with respect to the Application related to the TPS respondents. While the factual underpinnings are identical, the civil claim alleges that the alleged strip search and unlawful arrest and detention were contrary to sections 8, 7 and 9 of the Charter. Section 15 is not pled nor is there any allegation in the Statement of Claim that a factor in the applicant's alleged mistreatment was his race and colour.

35This is different than the situation in the cases referred to me by the respondents. In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449 the applicant had plead the equality rights provision of the Charter, s. 15. In Borden, above, while is not clear from the Decision what legal instrument was being relied on, if any, the Statement of Claim in that case included what were clearly allegations which were obligations under the Code such as an alleged failure to accommodate.

36For the reasons above I am unable to conclude that the entirety of the Application as it relates to the TPS respondents is properly dismissed pursuant to section 34(11) as the section has been interpreted to date by the Tribunal.

37I do find however that to the extent that the applicant appears to be alleging a reprisal on the part of any of the individual respondents in this Application, and to the extent that those allegations are also made in this Statement of Claim this may give rise to a basis for a partial dismissal of this Application. This would be for the same reasons given in respect of the TPA Application. However for the reasons below I find that it is more appropriate to defer consideration of this question.

38I find that it is appropriate to defer this Application pending the completion of the civil suit. The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings and it is a matter of discretion that the Tribunal exercises on the basis of the circumstances in each case.

39However the Tribunal has generally deferred applications where there is an ongoing proceeding where the same facts are being litigated. Deferral of an application ensures that proceedings dealing with the same factual issues in dispute do not run concurrently raising the possibility of inconsistent decisions determination of the facts and law and the waste and misuse of the parties' and Tribunal resources.

40Amongst the factors considered when this issue arises are the subject matter of the other proceeding, the nature of the other proceeding, the remedies available, and whether it would be fair over all to defer considering the status of each proceeding and the steps that have been taken to pursue them. In my view, a primary consideration is avoiding the litigation of the same facts at the same time in two different forums.

41The applicant argued that the Application should not be deferred, that the issues are different and the applicant should not have to wait to have his human rights claims determined. He also argued contrary to the respondents position that the civil claim is not that far advanced and on balance it would not be unfair to any party to engage in duplicative litigation.

42In my view the most fair, just and expeditious manner of proceeding with this Application is that it be deferred pending the conclusion of the civil proceeding. This civil claim was filed more or less concurrently with the Application. It raises the identical factual issues and is considerably broader in scope. But for the lack of a few words in the Statement of Claim it is identical to the Application. For various reasons this Application is not as far advanced as it might have been – for example the applicant as indicated commenced multiple claims about his concerns including seeking to add the TPA as a respondent six months after filing the related Statement of Claim and more than a year after he was aware of all of the facts supporting his reprisal claim. I also note that there remains one outstanding preliminary issue what has not yet been determined.

43In the civil proceeding I am advised that examinations for discovery are ongoing and are near concluding if not already concluded and a date for trial may be set in the not too distant future. The parties will have expended significant resources in getting the case to that stage. It makes no sense, in my view, either for the parties or in consideration of the effective and practical utilization of the public resources engaged to have these two substantially similar cases proceeding simultaneously.

44The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the civil process.

Abuse of Process

45The respondents all argue that this Application should be dismissed as an abuse of process consequent to the applicant's failure to provide written submissions as directed by the Tribunal.

46As indicated earlier this Application had been consolidated with a number of others which raised a similar section 45.1 issue. On November 21, 2011 the Tribunal convened a case management conference call at which time a number of case management issues were agreed or determined. The applicant participated in that conference call by counsel. The results of that conference call were set out in a CAD issued on November 18, 2011 which was sent to all parties including the applicant.

47The CAD directed that the parties deliver and file their written argument on the issues by March 15, 2012. The applicant failed to file the required written argument and did not seek leave to file them late. On April 13, 2012 the TPSB wrote to the Tribunal seeking direction with respect to the applicant's intentions with respect to his Application.

48On April 20, 2013 the Tribunal issued a further CAD directing that the applicant file his materials by April 25, 2012 failing which the Application would be dismissed as abandoned.

49The applicant wrote to the Tribunal on April 26, 2012 asking for an extension to April 30, 2012 to file his materials. This correspondence was not copied to the other parties to the proceeding. On April 27, 2012 the Tribunal forwarded the applicant's correspondence to all of the respondents on the lead case and made several directions to the parties including that the applicant's counsel provide updated mailing address, phone, fax number and email address pursuant to Rule 1.13.

50The applicant did not comply with this Direction in a timely manner. On May 2, 2012 the Tribunal issued a further CAD which the text of which is set out here:

In the circumstances, this matter cannot and should not remain as a lead case on the issue of s. 45.1 to be heard from May 14-16. It would not be fair to the other parties in this and other cases or conducive to a fair, just and expeditious process to do so. The applicant's suggestion of a revised timetable would not be an appropriate solution to the negative effects on the other parties and on the Tribunal's process. The other parties need not include the parties in the Shallow matter on any further correspondence to the e-mail list.

The Tribunal notes the respondents' request that the Shallow Application be dismissed as abandoned in view of the failure to comply with Tribunal directions. In my view, in these circumstances and in light of s. 43(2) of the Human Rights Code, R.S.O. 1990, c. H.19, this issue should be decided following oral submissions.

In the changed circumstances, a telephone hearing will be scheduled to hear arguments on all requests for dismissal and deferral raised by the respondents. This includes the issues identified in the Interim Decision of July 27, 2011, and the requests to dismiss as set out in the correspondence of the last several days. I note, as emphasized by the respondents, that the applicant did not file a response to the Requests for Order filed by the respondents when they were first filed.

The Tribunal makes the following Order:

(1) The Shallow case will not be heard together with the other lead cases. The parties to the other cases need not copy any further materials to counsel in the Shallow case (Mr. Moriah, Ms. Jones, and Ms. Cabel).

(2) It is unclear from Mr. Moriah's e-mail of May 2, 2012 who is counsel of record for the applicant. Mr. Moriah shall immediately clarify this issue through an e-mail to the Registrar, copied to the other parties.

(3) By May 16, 2012, counsel for Mr. Shallow shall deliver to counsel for the respondents and intervenor and file with the Tribunal complete written submissions in response to: (i) all issues identified in the Interim Decision of July 27, 2011; (ii) the request that the Application be dismissed as requested in the letters of yesterday and today. The deadline of May 16, 2012 will not be extended absent exceptional circumstances. If the applicant does not file submissions by this date, the Application may be dismissed as abandoned.

(4) The Registrar will schedule a half-day teleconference to hear oral submissions on the issues identified in the Interim Decision of July 27, 2011 and whether the Application should be dismissed for the reasons set out in the letters of yesterday and today. A single Tribunal member will hear these submissions.

51All of these respondents have sought the dismissal of this Application for the failures outlined above. They also rely on the fact that the applicant had not responded to the various Requests for Orders dealt within in this Interim Decision.

52While I appreciate that the applicant's failures will have caused the respondents here as well as in the lead case to incur some further, and arguably unnecessary, costs in dealing with this matter, the circumstances in my view are not such as would justify the extra-ordinary measure of the dismissal of the Application.

53I would observe that further failures of the applicant to promptly respond to other issues as they arise or a further failure to comply with an Order or Direction of the Tribunal may well cause this issue to be revisited.

Other Matters

54There remains the question of the respondents' Request that this Application be dismissed pursuant to section 45.1 of the Code. In light of the Decision of the Supreme Court of Canada in Penner, above, and my decision to defer this case pending the conclusion of the civil matter, it is not necessary to address this issue at this time.

Order

55The Application as it relates to the TPA is dismissed.

56The Application as it relates to the TPS respondents is deferred pending the outcome of the civil proceeding. The remaining preliminary issues are deferred as well and may be revisited at the appropriate time.

57I am not seized of this case.

Dated at Toronto, this 16th day of May, 2013.

"Signed by"

David Muir Vice-chair

CORRECTION

The decision released on May 16, 2013 incorrectly states that Lisa Cabel appeared as counsel for the individual respondents. In actuality, Naomi Calla appeared as counsel for the individual respondents. This error is corrected.