Jerome Morgan v. Toronto Police Services Board and Toronto Police Services, 2014 HRTO 1155

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerome Morgan

Applicant

-and-

Toronto Police Services Board and Toronto Police Services

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: July 31, 2014

Citation: 2014 HRTO 1155

Indexed as: Morgan v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Jerome Morgan, Applicant

Dijana Simonovic, Counsel

Toronto Police Services Board and Toronto Police Services, Respondents

Glenn K.L. Chu, Counsel

Introduction

1This Interim Decision addresses the respondents’ request that this Application be deferred pending the completion of judicial review proceedings in a different Application.

Background

2The present Application was filed under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 23, 2011, and alleges discrimination on the basis of race, colour, ancestry, place of origin and ethnic origin, and reprisal, in the area of goods, services or facilities. The applicant also filed a complaint with the Office of the Independent Police Review Director (the “OIPRD”) under the Police Services Act (the “PSA”), involving the same allegations that are contained in the Application.

3This Application was initially deferred, on consent of the parties, pending the completion of the applicant’s PSA complaint and criminal proceedings. On September 7, 2012, the applicant asked that the Application be re-activated. On September 18, 2012, the respondents consented to the applicant’s re-activation request, but also filed a Request for an Order During Proceedings (“RFOP”) that the Application be dismissed, pursuant to s. 45.1 of the Code, on the basis that the applicant’s PSA complaint appropriately dealt with the substance of the Application.

4In response to the respondents’ RFOP seeking dismissal, the applicant asked that the Tribunal hold the s. 45.1 dismissal request in abeyance pending a decision from the Tribunal in Claybourn v. Toronto Police Services Board. In Claybourn v. Toronto Police Services Board, a three-person panel of the Tribunal heard submissions on whether s. 45.1 of the Code ought to be applied to complaints under the PSA, in three separate Applications filed with the Tribunal. By Case Assessment Direction dated January 16, 2013, the Tribunal indicated that the respondents’ s. 45.1 dismissal request would be held in abeyance, pending the outcome of the Tribunal’s decision in Claybourn v. Toronto Police Services Board.

5In Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 (“Claybourn”), the Tribunal determined that, in light of the Supreme Court’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, s. 45.1 of the Code should not be applied 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. The Tribunal allowed the three Applications before it in Claybourn to proceed.

6After the Tribunal issued its decision in Claybourn, the Tribunal re-activated the present Application, and directed the respondents to file a Response to the Application. The respondents have since filed a Response to the Application, and the applicant has filed a Reply to the respondent’s Response. On February 28, 2014, the applicant also filed a Response to the respondents’ RFOP that the Application be dismissed pursuant to s. 45.1 of the Code.

7This Interim Decision addresses the respondents’ request, set out in correspondence dated January 30, 2014, that the Tribunal’s determination of their RFOP that the Application be dismissed be held in abeyance again, pending the outcome of an application for judicial review in Her Majesty the Queen in Right of Ontario v. De Lottinville (“De Lottinville”). The judicial review in De Lottinville concerns one of the three Applications addressed by the Tribunal in its decision in Claybourn, referred to above, that the Tribunal determined could proceed.

8In submissions dated March 25, 2014, the applicant opposes deferral of the determination of the respondents’ RFOP seeking dismissal of the Application. By Case Assessment Direction dated June 17, 2014, the Tribunal also provided the respondents with an opportunity to file reply submissions on the deferral issue, and they have now done so.

THE PARTIES’ SUBMISSIONS

9The respondents submit that the Claybourn decision is central to the issues being considered by the Tribunal in the respondents’ RFOP that the Application be dismissed pursuant to s. 45.1 of the Code. The respondents submit that their dismissal request was held in abeyance pending the Tribunal’s decision in Claybourn, and, with the Claybourn decision now under review, a further deferral of their s. 45.1 dismissal request would be appropriate.

10The respondents also submit that it would be prejudicial to them to proceed with the s. 45.1 dismissal request while the judicial review application in De Lottinville is outstanding, and that, if the Tribunal were to deny the dismissal request based on the Claybourn decision, this matter may proceed to a hearing before the judicial review application is disposed of by the Court. The respondents submit that, if the Court makes a decision which would affect the s. 45.1 dismissal request, the respondents might be left without a remedy. They submit that, on the other hand, there is no prejudice in deferring the Application pending a decision in the judicial review application.

11The applicant submits that it would be unfair to defer the present Application as the applicant and the respondents to the present Application are not parties to the judicial review application in De Lottinville. Furthermore, it is unknown when the judicial review application will be heard and when a decision might be issued. The applicant also submits that deferral would result in an unfair delay of this proceeding, which involves events dating back to January 2011.

12The applicant submits that the Application and the respondents’ request to dismiss it based on s. 45.1 of the Code has already been held in abeyance for a significant amount of time pending the release of the Tribunal’s decision in Claybourn. The applicant submits that the Tribunal should now proceed to issue its decision with respect to the respondents’ request to dismiss. The applicant also submits that there is currently established law on s. 45.1 of the Code and how the Tribunal can use its discretion in applying this section of the Code, and that the respondents’ deferral request is based on nothing more than the hope of a change in the law.

13With respect to the respondents’ submission that it would be prejudicial to them if the Tribunal were to proceed to determine their request to dismiss prior to the application for judicial review being disposed of, the applicant submits that, should the judicial review application result in a change in the law before a final decision in this Application is issued, it would be open to the Tribunal to seek submissions from the parties with respect to the issue at the time. The applicant submits that there is no irreparable harm to the respondents in denying the deferral request, and greater harm would befall the applicant if the Tribunal were to grant the request, as the Application would be delayed on pure speculation that the law may change at some future date.

14In reply to the applicant’s submission that a further deferral would result in an unfair delay to him, the respondents submit that the applicant originally sought deferral of the Application pending the decision in Claybourn, and that there is no prejudice to the applicant in addition to what would have been expected from initially requesting deferral. The respondents also submit that the reasons the applicant gave for seeking deferral in the first place, including the need for clarity in the law, still remain, and that the judicial review in De Lottinville is an extension of Claybourn.

15The respondents also essentially submit that it should not matter that the parties in this matter are not parties to the judicial review, as a number of applications before the Tribunal in which the parties were not parties to Claybourn were deferred pending the Tribunal’s decision in Claybourn. The respondents also raise prejudice, and submit that it is unfair to proceed with a hearing and “vex” respondents twice if a proper interpretation of the law provides otherwise. The respondents submit that it is of little comfort to tell them that the matter can be dealt with later on, after they have been put to much expense and perhaps even after a decision has been rendered, should the Divisional Court overturn the Tribunal’s decision in the De Lottinville judicial review. They submit that allowing them to raise De Lottinville later on does not address the prejudice to them.

DECISION

16The Tribunal may defer consideration of an application on such terms as it may determine and on its own initiative. See Rule 14.1 of the Tribunal’s Rules of Procedure. Deferral is a discretionary measure that the Tribunal exercises on the basis of the circumstances of each case.

17The Tribunal generally considers deferral when the parties are involved in another proceeding and there is a concern that if the two proceedings proceed concurrently there is a possibility of inconsistent decisions on facts or law. The Tribunal considers whether it would be fair overall to the parties to defer, having regard to the nature and status of each proceeding, and the steps that have been taken to pursue them. See, for example, Calabria v. DTZ Barnicke, 2008 HRTO 411. The Tribunal has also taken the position that absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it. See, for example, Shaw v. United Steelworkers, 2011 HRTO 287. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

18In the present case, the respondents seek deferral of the Tribunal’s determination of their preliminary request that the Application be dismissed, pending the outcome of a judicial review in a matter in which they are not parties. Although the parties in the present Application were also not parties to the Claybourn matter, the Tribunal directed that the respondents’ request that this Application be dismissed under s. 45.1 of the Code, in light of a complaint under the PSA, be held in abeyance pending the Tribunal’s decision in Claybourn. In my view, however, the circumstances of the Claybourn matter were unique in that a three-person panel of the Tribunal heard submissions on whether s. 45.1 of the Code ought to be applied to complaints under the PSA, in three separate Applications filed with the Tribunal, and the Tribunal also received submissions on the issue from a number of parties who were invited to intervene.

19I also note that in circumstances similar to the present Application, the Tribunal has denied requests to defer pending the outcome of the judicial review in De Lottinville. See: Claybourn v. Toronto Police Service, 2014 HRTO 367; Permaul v. Toronto Police Services Board, 2014 HRTO 365; Smith v. Toronto Police Services Board, 2014 HRTO 366; and Lawrence v. Ontario Provincial Police, 2014 HRTO 364. In denying the respondent’s request to defer determination of its s. 45.1 dismissal request in Permaul, the Tribunal held as follows, at paras. 13 to 17:

The request to defer in the present case is somewhat different in that the respondents are seeking a deferral to a proceeding – the Court’s consideration of the application for judicial review in de Lottinville – to which the applicant and respondents are not parties. There is no other proceeding currently underway that is considering the facts underlying the Application that could lead to a potential inconsistent finding of fact. There is currently established law on section 45.1 and how the Tribunal can use its discretion in applying this section of the Code. The Tribunal, through its lead case in Claybourn, has determined how section 45.1 might be applied in the context of the Supreme Court’s recent decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, 2013 SCC 19 (“Penner”). I do not find that under these circumstances there are compelling reasons for why I cannot proceed to consider the Application before me.

It is true that the judicial review may decide that the Tribunal’s understanding of the Supreme Court decision in Penner and its applicability to section 45.1 as expressed in Claybourn/de Lottinville is wrong. However, this possibility is speculative at this point and does not outweigh the Tribunal’s commitment to providing fair and timely resolutions to resolve complaints of discrimination before it.

The respondents submit that the Tribunal has already been willing to hold applications in abeyance for extended periods of time pending its own decision in Claybourn and consequently it should be prepared to wait for the judicial review process to finish before proceeding with the present Application. While it is true that there has been lengthy delays in a number of applications owing to the time it has taken for the Tribunal’s to issue its decision in Claybourn, much of this delay is a result of the Claybourn panel waiting for the Supreme Court to issue its decision in Penner.

The respondents submit that it would be prejudicial to them if the Tribunal was to proceed to a consideration of its request to dismiss the Application pursuant to section 45.1 before the application for judicial review was disposed of by the courts. They submit that to proceed the respondents may be left without a remedy (namely a dismissal of the Application pursuant to section 45.1) while, they submit, there is no prejudice in deferring any decision on their request to dismiss.

A decision to proceed to consider and deny the request to dismiss the Application pursuant to section 45.1 would mean the Application would proceed to be considered on its merits. This would not necessarily leave the respondents without remedies. In future, in the event the Court was to uphold the judicial review application in de Lottinville, the respondent could bring this change in the law to the Tribunal’s attention in this proceeding and the Tribunal could address the issue at that time. On the other hand, I do find that a deferral would be prejudicial to the applicant in that it could unduly delay an Application that has already taken an inordinate amount of time to date. As stated earlier, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

20The allegations in the present Application relate to events occurring in January 2011. The Application has already been deferred, pending completion of the applicant’s PSA complaint and criminal proceedings, and then held in abeyance, pending the Tribunal’s decision in Claybourn. There is also no indication if the judicial review application in De Lottinville has been perfected, and it is not clear if and when a decision will be issued in that matter, and, if a decision is issued, if it will be subject to any appeals.

21I agree with the above reasoning in Permaul. Parties before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it, and I am not persuaded that there is anything in the present case that warrants a different approach from that taken in Permaul, and the other cases referred to above in which the Tribunal has denied requests to defer pending the outcome of the judicial review in De Lottinville. In the circumstances, I find that deferral of the Application pending the outcome of judicial review proceedings in De Lottinville is not appropriate.

ORDER

22The respondents’ request that this Application be deferred pending the outcome of the judicial review application in De Lottinville is denied.

23As the respondents’ RFOP to dismiss the Application was filed before the Tribunal issued its decision in Claybourn, the respondents may have an additional 14 days from the date of this Interim Decision to provide any additional submissions on their RFOP. The applicant will have 7 days following receipt of the respondents’ submissions to file any reply submissions. After the parties’ submissions are received, or the time for providing submissions has passed, the Tribunal may determine the issue or provide further directions.

24I am not seized.