Lawrence v. Ontario Provincial Police, 2014 HRTO 364

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Collin Lawrence Applicant

-and-

Ontario Provincial Police, Toronto Police Services Board, Constable Aaron Turpin, Constable Michael Therrien, Constable Steve Su, Andrew McDonald, Chad Mohr and William Blair Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: March 14, 2014 Citation: 2014 HRTO 364 Indexed as: Lawrence v. Ontario Provincial Police

WRITTEN SUBMISSIONS

Ontario Provincial Police, Constable Aaron Turpin, Constable Michael Terrien, and Constable Steve Su, Respondents Jinan Kubursi, Counsel

Toronto Police Services Board, Respondent David Gourlay, Counsel

Andrew McDonald, Chad Mohr, and William Blair, Respondents Lisa Cabel, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleging discrimination with respect to services on the basis of race, colour, ancestry, place of origin, ethnic origin, sex and age. This Interim Decision addresses two requests made by the respondent police services; to defer the Application and also to dismiss it pursuant to section 45.1 of the Code.

BACKGROUND

2The Application arises from an incident on October 28, 2008, when the applicant was pulled over by an Ontario Provincial Police (“OPP”) officer while driving. The incident eventually involved multiple OPP and Toronto Police Services officers attending the scene, five of whom have been named as personal respondents. The Application alleges that the initial decision to stop the applicant and the subsequent decisions to call on additional police personnel, to use force to remove the applicant from his car, to handcuff the applicant and to arrest and charge the applicant with several traffic violations are acts of discrimination.

3The applicant subsequently filed a complaint with the OPP under Part V of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”). This complaint is based on the same events as described in the Application. The complaint alleges the applicant was subject to “racial profiling” and excessive use of force. The complaint was investigated by the OPP’s Professional Standards Branch and it was determined that there was insufficient evidence to support the applicant’s allegations of police misconduct. The applicant then filed his Application with the Tribunal.

4A hearing was scheduled to consider the Application on June 21 and 22, 2012. On May 22, 2012, the OPP, and OPP officers Turpin, Therrien and Su (the “OPP respondents”) filed a request for an order during proceedings (“RFOP”) to dismiss the application pursuant to section 45.1 of the Code. Section 45.1 states:

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.

The OPP respondents submitted that as the applicant had previously filed a complaint that was considered under the PSA complaints process, he had already been subject to a proceeding that appropriately dealt with the substance of the Application and therefore his Application should be dismissed pursuant to section 45.1. The OPP respondents requested that their request to dismiss the Application be considered as a preliminary issue at the outset of the applicant’s hearing on June 21 and 22, 2012.

5On June 6, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) in which it indicated that a three-person Tribunal panel had recently been convened to hear and decide whether three other applications before the Tribunal (Durrell Claybourn v. Toronto Police Service and Toronto Police Services Board; Dave Ferguson v. Toronto Police Services Board and Dean de Lottinville v. Ontario Provincial Police and Phil Nowiski) should be dismissed pursuant to section 45.1 on the basis that the applicants in each of these applications had previously had complaints considered under the PSA’s complaints process. The CAD indicated that the June 21 and 22, 2012 hearing of the present Application would be adjourned pending the three-person panel’s decision as to whether section 45.1 applied in these other applications.

6On July 25, 2013, the Tribunal’s three-person panel issued its decision, Claybourn v. Toronto Police Services 2013 HRTO 1298. The three-person panel in Claybourn determined that section 45.1 should not be applied to dismiss the applications before it. In its decision the Tribunal refers at length to the significance of the Supreme Court of Canada’s recent decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”).

7On September 4, 2013, the Tribunal issued a CAD, asking the parties for submissions on the impact of the decisions in Claybourn and Penner on the present Application’s request for dismissal under section 45.1.

8The Tribunal has now received written submissions from the OPP respondents, the Toronto Police Services Board (“TPSB”) and the Toronto Police Services (“TPS”) on behalf of the respondents, Constables Andrew McDonald, Chad Mohr and Police Chief William Blair. The applicant has not made submissions.

SUBMISSIONS

9The OPP respondents ask that the Tribunal defer consideration of their original May 22, 2012 request to dismiss the Application pursuant to section 45.1 pending the determination of an application for judicial review that was filed in December 2013 in De Lottinville (one of the three applications decided in Claybourn).

10In the alternative the OPP respondents submit that if the Tribunal does not wish to defer its request to dismiss the Application it should proceed to consider the OPP respondents’ request to dismiss the Application pursuant to section 45.1 based on their May 22, 2012 written submissions. The OPP respondents submit that Claybourn is not binding on the Tribunal and that the reasoning and analysis in Claybourn should not be applied in the present case as the Tribunal in Claybourn erred in not applying the appropriate analysis in its consideration of section 45.1.

11The OPP respondents submit the appropriate analysis is prescribed by the Supreme Court of Canada in the case of British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 (“Figliola”), the decision that the Tribunal had, prior to Penner, regarded as an important governing authority, and which the OPP respondents submit still is. The OPP respondents submit that section 45.1 of the Code, Figliola and Penner all require the Tribunal to consider the individual circumstances of a case in which dismissal pursuant to section 45.1 is being considered. They submit that the Tribunal’s decision in Claybourn failed to separately consider and decide whether the facts in each of the three separate cases before it were such that these cases ought to have been dismissed on the basis that they did not appropriately deal with the substance of the Application.

12The OPP respondents further submit that past Tribunal decisions have dismissed applications on the basis that complaints under the PSA have constituted a proceeding for the purposes of section 45.1.

13The TPSB supports OPP respondents’ request to defer the Application pending the outcome of the application for judicial review in De Lottinville. The TPSB submits that a deferral would be consistent with the Tribunal’s previous decisions to defer Tribunal applications involving complaints under the PSA including the present Application pending the Tribunal’s decision in Claybourn.

14The TPSB submits it would be prejudicial to the respondents if the Tribunal was to proceed to a hearing on the Application’s merits before the application for judicial review was disposed of by the courts. The TPSB submits that if the Tribunal was to proceed to hear the Application the respondents may be left without a remedy, namely a dismissal of the Application pursuant to section 45.1. The TPSB submits that, by contrast, there is no prejudice in deferring the Application.

15The TPSB further submits that Claybourn is not a precedent that binds the future decisions of the Tribunal and accordingly, it is open to the Tribunal to dismiss the present Application pursuant to section 45.1. It submits the Tribunal should consider each request made under section 45.1 on its own merits as Penner makes clear.

16The TPSB submits that the reasons section 45.1 should apply in the present case have been set out in the OPP respondents’ original May 22, 2012 submissions. The TPSB adopts these submissions and argues that they should also apply to the TPS officers, who played a less central role with the applicant during the incident on October 28, 2008, and to the TPSB, whose only liability (if any) arises from the alleged actions of the TPS officers.

17The TPS submissions, filed on behalf of the personal respondents, Mohr, McDonald and Blair, contend that the decision in Claybourn should not be given precedential value so as to bind all future decisions of the Tribunal. It submits that the Supreme Court in Penner makes clear that police disciplinary hearings are not exempt from issue estoppel and the doctrine itself “calls for a case-by-case review of the circumstances to determine whether its application would be unfair or unjust” (para. 35 of Penner). Accordingly, it submits that the Tribunal must assess the particular facts of the present case in order to determine whether to apply section 45.1, as opposed to applying a “blanket approach” that would result in refusing to consider any request to dismiss an application pursuant to section s. 45.1 if a previous complaint under the PSA was filed.

18The TPS adopts the OPP respondents’ May 22, 2012 written submissions requesting that the Application be dismissed and be dismissed against all of the respondents including the TPS respondents.

19Similar submissions on the impact of Claybourn and the De Lottinville judicial review application have been raised by the respondent TPSB in a number of separate applications. For the reasons given below, I have come to a similar conclusion in each one of these cases although I have considered carefully the separate submissions made in each one.

ANALYSIS AND DECISION

Request to Defer

20The respondents’ request to defer the Application is denied.

21The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). It is a discretionary measure that the Tribunal exercises on the basis of the circumstances of each case.

22The Tribunal generally considers deferral when the parties are involved in another proceeding and there is a concern that if the two proceedings were to proceed concurrently there is the 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.

23The 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 two recent decisions in Figliola and Penner. And Claybourn, as noted by the respondents, is not binding on other Tribunal decision-makers. I do not find that under these circumstances there are compelling reasons for why I cannot proceed to consider the Application before me.

24It 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.

25The respondents submit that the Tribunal has already been willing to defer applications 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 have been lengthy delays in a number of applications owing to the time it has taken for the Tribunal 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.

26The respondents submit that it would be prejudicial to them if the Tribunal was to proceed to consider their 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 to the applicant in a deferral.

27A decision to proceed to consider and indeed 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 the future, in the event the Court were 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.

Request to Dismiss

28The respondents’ requests to dismiss the Application pursuant to section 45.1 of the Code are dismissed and a hearing will be scheduled to consider the Application on its merits.

29In Claybourn, the Tribunal considered section 45.1 and its applicability in cases where there had been a previous complaint under the PSA in light of the Supreme Court decision in Penner. The Tribunal concluded at paragraph 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.

I am in agreement with the Tribunal’s reasoning and conclusions in Claybourn and choose to follow this reasoning in considering the present Application.

30The respondents submit that, following Penner the Tribunal must consider the specifics of the Application before it in determining whether to apply section 45.1. I agree. However, the respondents have not pointed to any specific facts that, in their view, distinguish this Application from the applications considered by the Tribunal in Claybourn. In my review of the present Application I find that it does not differ in any significant way from the applications that were considered in Claybourn. As a consequence, I find the respondents’ argument unpersuasive and I am of the view that the present Application has not been appropriately dealt with under the PSA complaints process and should proceed.

31The respondents have asked me to follow the reasoning in Figliola and on this basis dismiss the application pursuant to section 45.1. This is not persuasive in light of the Supreme Court’s later decision in Penner. I agree with the Tribunal in Claybourn when in analysing the relationship between Figliola and Penner it concludes that the statutory scheme the Court considers in Penner has greater application to the circumstances of the applications before the Tribunal in Claybourn.

32The Application will now be scheduled for hearing.

33I am not seized of this matter.