Smith v. Toronto Police Services Board, 2014 HRTO 366

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Smith

Applicant

-and-

Toronto Police Services Board, Martin Engel, and Alexander Yuandis

Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: March 14, 2014 Citation: 2014 HRTO 366 Indexed as: Smith v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Peter Smith, Applicant Kate Sellar, Counsel

Toronto Police Services Board, Respondent David Gourlay, Counsel

Martin Engel and Alexander Yuandis, Respondents Naomi Calla, Counsel

BACKGROUND

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 and colour. This Interim Decision addresses two requests made by the respondents; to defer the Application and also to dismiss it pursuant to section 45.1 of the Code.

2The Application arises from two incidents in February 2009. On February 7, 2009, the applicant was stopped by two Toronto Police Services (“TPS”) officers and issued a ticket for smoking in a bus shelter. The applicant alleges that the decision to stop and to issue him a ticket was racially motivated. On February 16, 2009, the applicant was followed then stopped on the street by TPS Officers Engel and Yuandis, the named personal respondents, and questioned as a possible suspect in a domestic assault that had just taken place nearby. The applicant alleges that the decision to follow and question him was racially motivated and a form of harassment.

3The applicant subsequently filed complaints with the TPS under Part V of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”) about the February 7 and 16 incidents. Both complaints were investigated by the TPS with the TPS determining that there was insufficient evidence to support the applicant’s allegations of police misconduct. The applicant then filed his Application with the Tribunal.

4Respondents Engel and Yuandis and the Toronto Police Services Board (“TPSB”) subsequently filed Requests for an Order During Proceeding asking that the Application be dismissed 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.

5Both the personal and institutional respondents submitted that as the applicant had previously filed complaints that were considered under the PSA complaints process, he had already been subject to proceedings that had appropriately dealt with the substance of the Application and therefore his Application should be dismissed pursuant to section 45.1.

6On March 1, 2011, the Tribunal held a preliminary hearing to consider the respondents’ requests to dismiss the Application pursuant to section 45.1.

7On August 17, 2011, the Tribunal issued a Cases Assessment Direction (“CAD”) in which it indicated that it was deferring consideration of the respondents’ request to dismiss pending the Tribunal’s decision in three other Applications (Claybourn v. Toronto Police Service; Ferguson v. Toronto Police Services Board, and Shallow v. Toronto Police Services Board) that were also considering whether an Application before the Tribunal should be dismissed if the applicant had previously filed a related complaint under the PSA.

8In a CAD dated November 18, 2011, the Tribunal’s Associate Chair determined that a three-person panel would be convened to hear five applications together, including the three mentioned above, given the significance of the issue of whether a complaint under the PSA constitutes a proceeding that can be said to have appropriately dealt with the substance of an Application later filed with the Tribunal. Accordingly, the Tribunal continued to defer its decision in the present Application.

9On July 25, 2013, the Tribunal’s three-person panel issued its decision, Claybourn v. Toronto Police Services, 2013 HRTO 1298. In Claybourn the Tribunal determined that section 45.1 should not be applied to dismiss the applications before it on the basis that the same underlying allegations have been addressed as a result of a complaint under the PSA. In its decision the Tribunal refers at length to the significance of the Supreme Court of Canada’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”).

10On September 5, 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.

11The Tribunal has now received written submissions from the personal respondents, the TPSB and the applicant.

SUBMISSIONS

12The personal respondents and the TPSB indicate in their respective submissions that an application for judicial review has been filed in de Lottinville v. Ontario (Community Safety and Correctional Services), one of the three applications decided in Claybourn. They ask that the Tribunal defer its decision on whether to dismiss the Application pursuant to section 45.1 until the Court has finally disposed of this application for judicial review. They submit that 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. They submit that if the Tribunal was to proceed the respondents may be left without a remedy (namely a dismissal of the Application pursuant to section 45.1). They submit there is no prejudice to the applicant in a deferral.

13The TPSB further submits that a deferral would be consistent with the Tribunal’s own approach to the issue of determining whether section 45.1 should apply in situations in which an applicant had previously filed a complaint under the PSA. It notes that the Tribunal deferred consideration of the present Application for over two years pending the Claybourn decision. Given these circumstances it argues a further deferral is appropriate.

14The TPSB also filed submissions requesting that the Application be dismissed pursuant to section 45.1.

15The TPSB submits that Claybourn should not be considered a precedent that should bind future Tribunal decisions and that it is open to the Tribunal in the present case to consider a request to dismiss the application under section 45.1 on its own merits and in its own context. The TPSB submits that even though Penner determined that that it would be unfair for a person who had filed a complaint under the PSA to be precluded from later pursuing a civil action arising from the same facts, that it explicitly declined to find that in all cases of police discipline that a person would necessarily be allowed to continue with a civil action. Accordingly, the TPSB submits that the Tribunal should not foreclose the possibility that a complaint under the PSA could trigger a dismissal based on section 45.1 in the appropriate circumstances. This would be, in the TPSB’s opinion, consistent with Penner, which leaves open the possibility that the doctrine of issue estoppel may prevent future civil actions from proceeding. The TPSB submits the Tribunal must have regard for the principles underlying the doctrine of issue estoppel and must, pursuant to these principles, analyse each case on its merits.

16Both the personal respondents and the TPSB also rely on their earlier submissions from October 2010 requesting that the Application be dismissed pursuant to section 45.1.

17The applicant submits that the respondent’s request to dismiss under section 45.1 has no basis in law, given the Tribunal’s decision in Claybourn and the Supreme Court decision in Penner. He submits the law is now clear that a decision in a public complaint under the PSA does not preclude an application under the Code. He submits there is nothing in the present Application that would support a departure from the analysis in Claybourn and Penner and consequently the respondents’ request to dismiss the application under section 45.1 should be refused. The applicant’s submissions pre-date those of the respondents and do not address the issue of deferral.

18Similar 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

19The 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.

20The 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.

21The 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. And Claybourn, as noted by the TPSB, 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.

22It 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.

23The 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 has 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.

24The respondents submit that it would be prejudicial to them if the Tribunal was to proceed to deny the request to dismiss the Application pursuant to section 45.1 and to proceed to a hearing on the Application’s merits 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.

25I am of the view that a decision to deny the respondents’ request to dismiss and to proceed to consider the Application on its merits would not necessarily leave the respondents without remedies. In 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

26The respondents’ requests to dismiss the Application pursuant to section 45.1 of the Code are denied and a hearing will be scheduled to consider the Application on its merits.

27In 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.

28I am in agreement with the Tribunal’s reasoning and conclusions in Claybourn and choose to follow this reasoning in considering the present Application. The 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, distinguishes 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

29The Application will now be scheduled for hearing.

30I am not seized of this matter.