Suresh Permaul v. Toronto Police Services Board, 2014 HRTO 365

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Suresh Permaul Applicant

-and-

Toronto Police Services Board, Simon Fraser, Walid Osman, Amy Patterson and William Blair Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: March 14, 2014 Citation: 2014 HRTO 365 Indexed as: Permaul v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Toronto Police Services Board, Simon Fraser, Walid Osman, Amy Patterson and William Blair, Respondents Glenn Chu, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services on the basis of race, colour, ethnic origin and place of origin. This Interim Decision addresses the respondents’ request to defer the Application as well as the respondents’ previous request to dismiss the Application pursuant to section 45.1 of the Code.

2The Application arises out of an incident on September 12, 2010, in which three Toronto Police Service (“TPS”) Officers, the named personal respondents Simon Fraser, Walid Osman and Amy Patterson, attended the applicant’s home in response to an apparent neighbourhood dispute. The Application alleges that the way in which the applicant was treated by these officers while he was questioned and later when he was taken to the hospital (with an apparent panic attack) was discriminatory as was the decision to charge him with several criminal offences.

3On October 5, 2010, the applicant made a complaint about this incident to the TPS under Part V of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”). The complaint was investigated by the TPS and it was determined that there was no evidence to substantiate the applicant’s allegations. The applicant subsequently filed his Application with the Tribunal on September 13, 2011.

4In their Response to the Application the respondents asked that the Application be dismissed pursuant to section 45.1 of the Code given that the applicant had made a complaint under the PSA arising from the same incident that gave rise to his Application. 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.

5In his Reply to the Response, the applicant submitted that while his complaint under the PSA and his Application both arose out of the events of September 12, 2010, the police investigation of his complaint did not consider or analyze allegations of discrimination under the Code and consequently cannot be said to have appropriately dealt with the substance of the Application and therefore should not be dismissed pursuant to section 45.1.

6On May 3, 2012, The Tribunal issued an Interim Decision, 2012 HRTO 873, informing the parties that the Tribunal was holding the Application in abeyance pending the release of its decision in another case in which it was considering several applications whether in which the issue was whether section 45.1 should be applied where an applicant had previously filed a complaint under the PSA.

7On October 18, 2013, the Tribunal wrote to the parties stating that the Tribunal had now issued its decision in Claybourn v. Toronto Police Services, 2013 HRTO 1298. The Tribunal’s three-person panel in Claybourn determined that section 45.1 should not be applied to dismiss the three applications that the panel had heard together. The Tribunal went on to state in its October 18, 2013 letter that the Application was reactivated and it asked the respondents to confirm whether they were still seeking to pursue their request to dismiss the Application under section 45.1.

8On January 31, 2014, the respondents wrote to the Tribunal. In their letter they indicate that an application for judicial review had been commenced by the provincial crown on behalf of the Ontario Provincial Police, a respondent in de Lottinville v. Ontario (Community Safety and Correctional Services) (“de Lottinville”). De Lottinville is one of three applications the Tribunal heard in Claybourn. The respondents request that the Tribunal defer its decision on its request to dismiss the present Application pursuant to section 45.1 until the Court has finally disposed of the De Lottinville judicial review application. The respondents submit that a deferral would be consistent with the Tribunal’s approach in this matter which has involved holding a number of applications in abeyance pending its decision in Claybourn.

9The respondents further submit that it would be prejudicial to the respondents to proceed with the request to dismiss the application pursuant to section 45.1 while the judicial review application is outstanding. They submit that if the Tribunal was to deny its request to dismiss the Application prior to the Court disposing of the judicial review application the respondents may be left without a remedy, namely a dismissal of the Application pursuant to section 45.1. They submit that on the other hand there is no prejudice to the applicant in deferring their request to dismiss the application pending the decision from the judicial review process.

DECISION AND ANALYSIS

Request to Defer

10The respondents’ request to defer consideration of the request is denied.

11The 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.

12The 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.

13The 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 (“Penner”). I do not find that under these circumstances there are compelling reasons for why I cannot proceed to consider the Application before me.

14It 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.

15The 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.

16The 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.

17A 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.

Request to Dismiss

18The respondents’ request to dismiss the Application pursuant to section 45.1 as set out in their Response is denied.

19In 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 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.

20I am in agreement with the Tribunal’s reasoning and conclusions in Claybourn and choose to follow this reasoning in considering the present Application. 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 am of the view that the present Application has not been appropriately dealt with under the PSA complaints process and should proceed to be considered on its merits.

21As the parties have agreed to mediation the Tribunal will schedule a date for mediation.

22I am not seized of this matter.