Claybourn v. Toronto Police Service, 2014 HRTO 367

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Durrell Claybourn

Applicant

-and-

Toronto Police Service and Toronto Police Services Board

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: March 14, 2014

Citation: 2014 HRTO 367

Indexed as: Claybourn v. Toronto Police Service

APPEARANCES

Durrell Claybourn, Applicant

Bruce Best, Counsel

Toronto Police Service and Toronto Police Services Board, Respondents

David Gourlay, 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, sexual orientation and age. This Interim Decision addresses the requests made by the respondents to defer or stay the Application pending the resolution of an application for judicial review or, alternatively, dismiss the Application pursuant to section 45.1 of the Code.

2The Application arises out of two incidents. The Application alleges that on July 18, 2007, the applicant was stopped by two Toronto Police Services’ (“TPS”) officers while walking down a street and subject to verbal abuse and treatment that was discriminatory in nature. The Application alleges that on September 13, 2007, the applicant was stopped by two undercover TPS officers at a downtown Toronto Mall on the basis that they were looking for a tall Black male with a gun. The Application alleges that the decision to stop the applicant was an instance of racial profiling. The Application further alleges the applicant was then searched, inappropriately grabbed and subjected to a racist comment.

3The applicant subsequently filed complaints about these incidents with the TPS under Part V of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”). The complaints were investigated by the TPS and it was determined that there was insufficient evidence to support the applicant’s allegations of police misconduct. The applicant then requested a review of the decision dismissing his complaint about the September 13, 2007 incident from the Ontario Civilian Commission on Police Services (“OCCPS”) as allowed for under the PSA. The OCCPS determined that the investigation and subsequent decision of the TPS were reasonable. The applicant subsequently filed his Application with the Tribunal.

BACKGROUND

4As part of its Response to the Application the TPS requested that the Application be dismissed pursuant to section 45.1 of the Code. Section 45.1 states:

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

5In an Interim Decision dated July 20, 2010, 2010 HRTO 1575, the Tribunal directed the applicant to provide submissions in response to the TPS’s request to dismiss. The Tribunal subsequently received submissions from the applicant and further written reply submissions from the TPS. On February 17, 2011, a teleconference was held to hear the parties’ oral submissions on the issue of whether the Application should be dismissed pursuant to section 45.1.

6On August 17, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) in which it indicated that it was deferring consideration of the respondents’ request to dismiss. The CAD explained that the Tribunal was in the process of deciding several other applications which also raised the issue of whether an application before the Tribunal should be dismissed if the applicant had previously filed a related complaint under the PSA.

7On July 25, 2013, a three-person panel of the Tribunal issued its decision in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298. This is a decision that considers three applications, including a different application made by the applicant. 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 recent decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”).

8As a consequence of the Claybourn decision the Tribunal issued a CAD on September 4, 2013, asking the parties in the present Application to provide submissions on the impact of the decisions in Claybourn and Penner on the respondents’ request to dismiss the Application pursuant to section 45.1.

9The Tribunal has now received written submissions from the respondents and the applicant.

SUBMISSIONS

10On December 4, 2013, the respondents filed submissions asking that the Application be dismissed. They submit Claybourn is not a precedent that binds future decisions of the Tribunal and accordingly, it is open to the Tribunal to dismiss the present Application pursuant to section 45.1. They submit 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. The respondents submit this would be consistent with Penner, which leaves open the possibility that the doctrine of issue estoppel may prevent future civil actions from proceeding after a complaint has been made under the PSA. They submit 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.

11The respondents adopt the written and oral submissions from March 1, 2010 requesting dismissal of the Application pursuant to section 45.1

12The applicant filed submissions (also on December 4, 2010) contending that the respondents’ request to dismiss has no basis in law given the Tribunal’s decision in Claybourn and the Supreme Court’s decision in Penner. The applicant submits that it is clear that a decision in a complaint under the PSA does not preclude an application under the Code. He submits that while it is true that the Court declined to rule in Penner that police disciplinary hearings should be excluded from the application of issue estoppel, the findings of the Court, adopted by the Tribunal in Claybourn, indicate that it would, except for the most unusual circumstances, be unfair to dismiss an application under section 45.1 following a complaint under the PSA. The applicant submits there is nothing in the Application that would support a departure from the analysis in Penner and Claybourn.

13On December 6, 2013, the respondents filed further submissions in which they indicate 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 request 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.

14The respondents submit that a deferral would be consistent with the Tribunal’s approach in this matter, noting that the Tribunal deferred its decision in the present Application for more than two years pending the Tribunal’s decision in Claybourn.

15The 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 in deferring their request to dismiss the application pending the decision from the judicial review process.

16On December 23, 2013, the applicant filed submissions opposing the respondents’ request to defer. The applicant submits that Claybourn is the current law with respect to the interaction of section 45.1 and complaints under the PSA and the possibility that the law may change is not a basis to defer.

17The applicant further submits that the respondents are essentially seeking a stay of proceedings pending judicial review. He submits that the Tribunal has an established test for granting a stay as set out in Phipps v. Toronto Police Services Board, 2009 HRTO 733 (“Phipps”). He submits the respondents have not addressed the requirements of this test in their submissions and consequently have not provided a sufficient basis to grant a stay.

18The applicant submits that the respondents’ contention that they would be prejudiced if the matter proceeds because they might not have the benefit of any changes to the law made by the Divisional Court is without merit and relies on Phipps, which dismissed a similar concern. The applicant also submits that any further delay would be a prejudice to the applicant given that the incident underlying the Application occurred over six years ago.

19On January 6, 2014, the respondents replied to the applicant’s submissions on the issue of deferral. They submit that a deferral would be consistent with the Tribunal’s deferral not only of the present Application but of numerous section 45.1 cases involving the PSA until the Claybourn decision was rendered. They submit that in deferring these cases the Tribunal has acknowledged that determining whether an application should be dismissed pursuant to section 45.1 is a threshold issue that needs to decided prior to the merits of an application being considered. The respondents submit that the most fair, expeditious and just approach to this issue would be to defer the Application.

20The respondents disagree with the applicant that their request can be characterized as a stay. They submit that typically a stay of proceedings would be ordered by the court to prevent a Tribunal application from proceeding; alternatively a stay may be ordered by the Tribunal to delay the effect of a particular order. They submit that in this case the Tribunal is being asked to temporarily delay its consideration of one application until another matter has been determined. They submit that their request is properly described as a request for a deferral.

21In the alternative the respondents submit that if the Tribunal finds that the respondent’s request is actually a request for a stay rather than a request to defer, the respondents submit that their request is for a temporary stay of these proceedings and that the test for a stay applied by the Tribunal in Phipps and other cases is no longer applicable. They submit that since Phipps the courts have recognized that a party seeking a temporary stay of proceedings must satisfy a different test with a lower threshold, a threshold which is set out in Hollinger International Inc. v. Hollinger Inc. [2004] O.J. No. 3464 (S.C.J.) (leave to Ct. refused, [2005] O.J. No. 708 (Div. Ct) (“Hollinger”). The respondents submit that their request meets this test. In the further alternative the respondents submit that their request also meets the requirements of the test used in Phipps that is set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.

22I would note here that the respondents’ submissions on the impact of Claybourn and the de Lottinville judicial review application on the present Application are similar, in part, to submissions that the TPSB has made in a number of other applications that the Tribunal held in abeyance pending the decision in Claybourn and which I have recently considered. I have come to similar conclusions in each one of these cases although I have considered carefully the separate submissions made in each one of these applications.

ANALYSIS AND DECISION

Request to Defer or Stay

23The 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.

24The 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.

25The 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 respondents, is not binding on other Tribunal decision-makers. I do not find that under these circumstances there are compelling reasons for why I should grant a deferral rather than proceed to consider the Application before me.

26It 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.

27The 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.

28The respondents submit that it would be prejudicial to them if the Tribunal was to proceed to a consider 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.

29A decision to proceed to consider and indeed deny the respondents’ request to dismiss the Application pursuant to section 45.1 would mean the Application would proceed to be considered on its merits. However, 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 respondents 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.

30The respondents have clearly stated that in their view their request is for a deferral and not a stay but in the event the Tribunal was to find that their request does constitute a request for a stay it asks the Tribunal to consider its further submissions. In my view it is generally incumbent on a party to identify what action they are asking the Tribunal to take when making a formal request and not to leave it to the Tribunal to define or interpret the party’s intentions. That said I am prepared for the purposes of this decision to additionally consider the respondents’ request as a request for a stay.

31As noted the Tribunal has considered requests to stay an application pending the outcome of an application for judicial review. Usually it is an interim decision the requesting party wishes to stay. See, for example, King v. Toronto Police Services Board, 2008 HRTO 55, and Washington v. Toronto Police Services Board, 2009 HRTO 640. In Phipps the respondents requested the application be stayed pending the judicial review of an interim decision in another application.

32As noted by the respondents, the Tribunal, in considering a request for a stay, has generally applied the legal test set out by the Supreme Court in RJR-MacDonald Inc. v. Canada (Attorney General), above. This test entails determining whether the party seeking the stay has demonstrated that there is a serious issue to be tried; has convinced the Tribunal that it will suffer irreparable harm if the relief is not granted; and has persuaded the Tribunal that the balance of convenience favours the granting of the stay. I will first consider the respondents’ request for a stay under this test.

33The respondents submit that it is not disputed that there is a serious issue to be tried given that the applicant has acknowledged this to be the case. They submit they would suffer irreparable harm if the application was to proceed to a hearing before the threshold issue of whether the application should be dismissed pursuant to section 45.1 is resolved. They submit the respondents would suffer a harm if they have to go through a hearing process unnecessarily and would suffer a more significant harm if the Tribunal was to make an adverse finding that might include the awarding of damages against the respondents. They submit this would constitute irreparable harm. They submit that the balance of convenience favours a stay in that the inconvenience of a delay is relatively minor when weighed against the irreparable harm that would be suffered by the respondents.

34I agree that there is a serious issue to be tried in the present case – whether section 45.1 should be applied when the applicant filed a related complaint under the PSA. However, I do not accept that irreparable harm will occur if a stay is not granted and that the balance of convenience favours granting a stay.

35In the event the Application proceeds to a hearing on its merits the respondents will be required to expend resources to participate in this hearing. However, I do not find that this expenditure of resources constitutes irreparable harm. I also do not accept that the respondents would suffer irreparable harm if a stay is not granted and at a later date the Court was to uphold the judicial review application in de Lottinville. I am of the view that in these circumstances the respondents would be able to bring this change in the law to the Tribunal’s attention and the Tribunal could address the issue at that time. The respondents’ irreparable harm argument also assumes that the Tribunal would reach a finding that the respondents did violate the applicant’s Code rights, which has yet to be determined.

36I am of the further view that the balance of convenience does not clearly favour the respondent. In considering which party would suffer the greater harm from the granting or refusal of the request for a stay, I find that a further delay in considering the Application of an indeterminate length of time would harm the applicant given the inordinate delays to date in considering his Application. And, as stated, I am also of the view that proceeding with the Application would not necessarily preclude the respondents from raising their interests in the future in the event that the Court was to uphold the application for judicial review in de Lottinville.

37The respondents have also submitted that reliance on an alternative test for a “temporary stay” has emerged in the common law since the Tribunal’s decision in Phipps. They submit that since a test for a temporary stay was set out in Hollinger in 2005 which was applied to contemporaneous proceedings outside of Ontario the Court has extended the application of the Hollinger approach to cases of concurrent domestic proceedings including proceedings involving different parties.

38It is not immediately evident to me that the “Hollinger approach” should be applied here given the Tribunal, as an administrative tribunal, does not necessarily rely on civil superior court precedents and the fact that the Tribunal has, to date, relied on a test set out by the Supreme Court in order to determine whether to grant a stay. However, I do not need to make this determination. I am of the view that even if I was to apply the test cited by the respondents in Hollinger for the granting of a temporary stay, I would not grant the respondents’ request for such a stay.

39Hollinger sets out the issues that courts have considered in deciding to exercise their discretion in issuing a temporary stay of a proceeding. These issues are:

a) whether there is substantial overlap of issues in the two proceedings;

b) whether the two cases share the same factual background;

c) whether issuing a temporary stay will prevent unnecessary and costly duplication of judicial and legal resources;

d) whether the temporary stay will result in an injustice to the party resisting the stay.

40The respondents submit that there is a substantial overlap of issues between the Application and the de Lottinville judicial review and the two matters share the same factual background. They submit a temporary stay will prevent an unnecessary duplication of judicial and legal resources as success in the application for judicial review in de Lottinville may reduce the issues to be determined in the Application and may render outstanding issues substantially moot. They submit that a temporary stay will not do an injustice to the applicant as the only prejudice he complains of is delay. The respondents submit that while delay should be avoided, delay alone cannot be considered an injustice for the purposes of a temporary stay given that delay is inherent in the very concept of a deferral or a temporary stay.

41I accept that there is an overlap on one substantial issue between the Application and the de Lottinville judicial review – whether an applicant who has filed a complaint under the PSA can subsequently pursue a related application with the Tribunal. The factual backgrounds of the two cases are similar rather than the same given that they involve different parties and different events. I do not accept that the issuing of a temporary stay will prevent unnecessary duplication of judicial and legal resources, only that it may do so in the event that the de Lottinville judicial review is upheld.

42And I am of the view that a temporary stay would be an injustice to the applicant. I disagree with the respondent that delays on their own cannot constitute an injustice, particularly in this matter where the incidents that gave rise to the Application occurred in 2007. Moreover, the applicant is potentially being required to await the outcome of a proceeding in which he is not a party and which will not necessarily resolve or assist in narrowing issues in the present Application. Conversely, proceeding with the Application will not, in my view, not necessarily preclude the respondents from, as I have said, raising their interests in the future with the Tribunal or the Court in the event that the Court was to uphold the application for judicial review in de Lottinville.

43For these reasons I choose not to exercise my discretion to stay the Application.

Request to Dismiss

44The respondents’ request to dismiss the Application pursuant to section 45.1 of the Code is dismissed and a hearing will be scheduled to consider the Application on its merits.

45In 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 in 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.

46I am in agreement with the Tribunal’s reasoning and conclusions in Claybourn and choose to follow this reasoning in considering the present Application.

47The 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.

48The Application will now be scheduled for hearing.

49I am not seized of this matter.