Morgan v. Toronto Police Services Board, 2014 HRTO 1548

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: October 17, 2014

Citation: 2014 HRTO 1548

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 dismissed on the basis that another proceeding has appropriately dealt with the substance of the 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 (“Penner”), 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 January 30, 2014, the respondents requested 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.

7On February 28, 2014, the applicant filed a Response to the respondent’s RFOP that the Application be dismissed pursuant to s. 45.1 of the Code.

8In further submissions dated March 25, 2014, the applicant opposed deferral of the determination of the respondent’s RFOP seeking dismissal of the Application. By Case Assessment Direction dated June 17, 2014, the Tribunal provided the respondents with an opportunity to file reply submissions on the deferral issue. The respondents were also directed to file any additional submissions in reply to the applicant’s Response to their RFOP seeking dismissal.

9On July 2, 2014, the respondents filed submissions in reply to the applicant’s submissions opposing deferral of the determination of the respondents’ RFOP seeking dismissal of the Application. The respondents submitted that they would provide reply submissions with respect to the RFOP seeking dismissal if their request for deferral was denied.

10By Interim Decision dated July 31, 2014, 2014 HRTO 1155, the Tribunal denied the respondents’ request that the Application be deferred pending the outcome of the judicial review application in De Lottinville. As the respondents’ RFOP to dismiss the Application was filed before the Tribunal issued its decision in Claybourn, the respondents and the applicant were given an opportunity to file any additional submissions on the respondents’ RFOP seeking dismissal, and they did so on August 14 and 29, 2014, respectively.

THE PARTIES’ SUBMISSIONS

11The respondents submit that Claybourn is not binding on subsequent Tribunal decisions. They also submit that the Supreme Court of Canada was explicit in Penner, at para. 35, that there should be a case-by-case consideration of the merits before deciding whether issue estoppel should be applied, and that the Court rejected the suggestion that police disciplinary hearings were exempt from the reach of issue estoppel.

12The respondents submit that the Tribunal must consider not only whether exercising its discretion under s. 45.1 of the Code to dismiss an application would be unfair to the applicant, but also whether declining to dismiss an application under s. 45.1 would be unfair to the respondent(s). They submit that what is essential is an analysis of the individual facts, and not just the application of general principles.

13With respect to the facts, the respondents submit that the present Application essentially duplicates the applicant’s PSA complaint, and that the only allegations at issue in the Application are the ones that underlay the applicant’s PSA complaint. They submit that Claybourn did not analyze the similarities between the PSA complaint and the Application in that case, such that it could be said to be of assistance in determining this RFOP. They also submit that Penner does not bar the application of issue estoppel in cases such as this one, where the Application and the PSA complaint are identical, and that to allow the Application to proceed would essentially lead to inconsistent findings or a waste of resources should the Tribunal come to the same conclusion.

14The respondents submit that the OIPRD investigation determined that the police officers who used force against the applicant were justified in doing so, and that there was no evidence that the applicant had been harassed or racially profiled by the officers. They submit that the applicant was given every opportunity to participate in the investigation, but decided not to, choosing to rely only on his complaint.

15The respondents submit that, as the allegations in the Application and the PSA complaint are identical, there is no scope for the argument that some aspect of the Application was not dealt with by the PSA complaint. They submit that the issues of harassment and racial profiling were addressed and rejected in the OIPRD investigation, which also dealt with the issue of the use of force.

16The respondents also submit that it would be fundamentally unfair for the same police officers to have to defend themselves again with respect to the exact same allegations made by the exact same person about the exact same incident. They submit that to refuse to dismiss the Application pursuant to s. 45.1 of the Code for the reasons set out in their original RFOP and additional submissions would be unfair and unjust.

17The applicant submits that Claybourn, while not binding, is persuasive, and the same reasoning should inform the Tribunal’s decision in the present case.

18In response to the respondents’ submission that the Application and the applicant’s PSA complaint contain the exact same allegations, the applicant submits that this is precisely the scenario that was contemplated by the Tribunal in Claybourn, as the Tribunal stated, at para. 89:

… it is not in accordance with the reasonable expectation 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.

19The applicant submits that it is clear, given the findings of the Supreme Court of Canada in Penner adopted by the Tribunal in Claybourn, that it would, except in the most unusual circumstances, be unfair to apply s. 45.1 to dismiss an application following an adverse finding under the PSA. The applicant submits that the fact that his PSA complaint contains the same allegations as in his Application does not place the Application within the realm of highly unusual circumstances where it would be fair to apply s. 45.1 to dismiss the Application because of the adverse findings under the PSA. The applicant submits that, as recognized in Claybourn, most, if not all, applications based on police misconduct will involve the “same underlying allegations of misconduct”.

20The applicant also submits that, regardless of the reasons for his non-participation in the OIPRD investigation, it cannot be said that it was his reasonable expectation at the time he chose not to participate in that proceeding that he would later be precluded from proceeding with his Application, simply because he had also made a complaint under the PSA. The applicant submits that the Court in Penner noted that Mr. Penner could have participated more fully in the proceedings, but that accepting that line of argument could lead to unintended and undesirable results, such as turning the administrative process into a proxy for the civil action. More particularly, the Court stated that litigants in Mr. Penner’s position could be incented to mount a full-scale case which would tend to defeat the expeditious operation of the disciplinary hearing. The Court identified as a further risk that potential complainants would simply not come forward with public complaints in order to avoid prejudicing their civil actions. See Penner, at paras. 62 and 63. The applicant submits that the Tribunal in Claybourn, at para. 82, held that the broader policy implications identified by the majority in Penner apply equally in the context of a human rights proceeding.

21The applicant also submits that the Court in Penner, at para. 60, held that, as the PSA requires police misconduct to be “proved on clear and convincing evidence”, in the case of acquittals, the failure to prove the charges did not necessarily mean that those same allegations could not be established on a balance of probabilities. The applicant submits that the Court in Penner noted that, given the different standards of proof, there would have been no reason for a complainant to expect that issue estoppel would apply if the officers were acquitted. The applicant submits that the same can be said of human rights applications before the Tribunal, which also must be proven on balance of probabilities.

DECISION

22Section 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.

23In Claybourn, the Tribunal considered s. 45.1 and its applicability in cases where there had been a previous complaint under the PSA, in light of the Supreme Court of Canada’s decision in Penner. The Tribunal concluded as follows, 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.

24I agree with the respondents’ submission that requests to dismiss applications under s. 45.1 should be considered in light of the particular facts of each case. I also note that the respondents have emphasized in their submissions that the allegations in the present Application and the applicant’s PSA complaint are identical. They submit that there is no scope, therefore, for the argument that some aspect of the Application was not dealt with by the PSA complaint. They submit that the issues of harassment and racial profiling were addressed and rejected in the OIPRD investigation.

25I also note, however, that the Tribunal’s decision in Claybourn addressed the issue of dismissing applications under s. 45.1 “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 indicated that Mr. Claybourn alleged in his Application that he was racially profiled when he was stopped, searched and questioned by two police officers. The investigation of his related police complaint found that his complaint about racial profiling was unsubstantiated. The Tribunal ultimately determined that Mr. Claybourn’s Application could not be regarded as having been appropriately dealt with under s. 45.1 in the circumstances, even though the allegations of racial profiling before the Tribunal appear to be the same as those made in the complaint filed under the PSA.

26I also note that, in Lawrence v. Ontario Provincial Police, 2014 HRTO 364, the applicant filed an Application and a PSA complaint based on the same events as described in that Application. In that case, the Tribunal also determined that the Application had not been appropriately dealt with under the PSA complaint process and that it should proceed.

27I agree with the Tribunal’s reasoning in Claybourn, and, while I have considered all of the parties’ submissions and materials in the particular circumstances of this case, I do not find that the present Application differs in any significant way from the Application considered by the Tribunal in Claybourn. I find that the Application has not been appropriately dealt with under the PSA complaint process, and that the Application should proceed.

28In the circumstances, I need not determine if the complaints process under the PSA is a “proceeding” within the meaning of s. 45.1 of the Code.

ORDER

29The respondents’ RFOP that this Application be dismissed under s. 45.1 of the Code is dismissed.

30I am not seized.