Dave Ferguson v. Toronto Police Services Board, 2014 HRTO 369

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dave Ferguson

Applicant

-and-

Toronto Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: March 14, 2014

Citation: 2014 HRTO 369

Indexed as: Ferguson v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Dave Ferguson, Applicant

Grace Vaccarelli, Counsel

Toronto Police Services Board, Respondent

Michele Wright, Counsel

Introduction

1This Application is scheduled to be heard by the Tribunal on March 24, 25 and 26, 2014.

2This Interim Decision addresses a Request for an Order During Proceedings (“RFOP”) brought by the respondent, Toronto Police Services Board (“TPSB”), on February 13, 2014, seeking: (i) deferral of this Application pending the outcome of an application for judicial review; (ii) dismissal of some allegations in the Application on the basis of delay; and (iii) bifurcation of any hearing in this matter so that public interest remedies are only considered, if appropriate, following a finding of liability.

3The applicant filed a Response to the RFOP on February 28, 2014, and the respondent and the applicant filed further submissions on March 12 and 13, 2014, respectively.

Background

4The applicant, Dave Ferguson, filed this Application on February 24, 2011, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to services, on the basis of race, colour, ancestry, place of origin and ethnic origin.

5In an earlier Interim Decision, 2013 HRTO 1298, the Tribunal explained that this Application arises out of incidents on March 3 and September 3, 2010, involving the applicant and Toronto Police Service (“TPS”) officers. The applicant alleges that he has been mistreated by police and stopped repeatedly because he is a Black Jamaican man with dreads.

6The applicant also filed a complaint under the Police Services Act, R.S.O. 1990, c. P.15, as amended (the “PSA”) in relation to the March 3, 2010 incident. The complaint was assigned to the TPS for investigation, and the investigation report found that the applicant’s complaint was unsubstantiated. The applicant did not request review by the Independent Police Review Director. In regard to the September 3, 2010 incident, the applicant filed a PSA complaint with the IPRD, but withdrew it before any investigation was conducted.

7The respondent sought dismissal of the allegations in the Application related to the March 3, 2010 incident, pursuant to s. 45.1 of the Code, on the basis that the substance of the allegations had been appropriately dealt with by the investigation under the PSA.

8In its earlier Interim Decision dated July 25, 2013, 2013 HRTO 1298, the Tribunal re-examined its approach to the interpretation and application of s. 45.1 of the Code where an applicant previously filed a public complaint about the conduct of a police officer under the PSA. In its Interim Decision, the Tribunal determined that this Application, as well as two other Applications filed by other individuals, could not be regarded as having been appropriately dealt with, within the meaning of s. 45.1 of the Code, by complaints filed under the PSA. The Applications were allowed to proceed in the Tribunal’s process.

RFOP

Deferral

9The respondent explains in its RFOP that an application for judicial review of the Tribunal’s July 25, 2013 Interim Decision, referred to above, has now been commenced by the respondent in one of the other Applications that was addressed by the Tribunal’s Interim Decision. The respondent, TPSB, seeks deferral of the hearing of this Application pending the outcome of the judicial review in “Her Majesty the Queen in Right of Ontario et al. v. DeLottinville, Court File No. 534/13” (“DeLottinville”).

10The respondent submits that the decision of the Court in DeLottinville will, or should, also apply in the present case, and that deferring the Application at this time will not result in any prejudice to the applicant. The respondent submits that, on the other hand, there is potential prejudice to the respondent if the matter proceeds. In particular, if a hearing of the Application proceeds and the Court subsequently does not uphold the Tribunal’s Interim Decision, or issues directions to the Tribunal regarding s. 45.1 of the Code, the respondent submits that it will be precluded from making submissions that the Court’s reasons in DeLottinville should be applied in the present Application.

11The applicant submits that it would be unfair to defer the Application. The applicant submits that the respondent is not a party to the judicial review application in DeLottinville, that the judicial review application has not been perfected, and that it is unknown when the application will be heard and when a decision might be issued. The applicant submits that deferral would result in an unfair delay of this proceeding. The applicant also submits that the respondent wants to be able to re-litigate the Tribunal’s decision to proceed with the present Application should there be a change in the law, and that this is speculative.

12Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules. Rule 14.1 of the Tribunal’s Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

13A deferral is not ordered automatically when parties are involved in other legal proceedings. The Tribunal has explained, however, that deferral of an application is often appropriate to ensure that proceedings dealing with the same issues do not run concurrently as that raises the possibility of inconsistent findings. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them. See I.K. v. Children’s Aid Society of Toronto, 2014 HRTO 120. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

14In all of the circumstances, I find that deferral of this Application pending the outcome of an application for judicial review in another Application is not appropriate. To begin with, the Tribunal issued its Interim Decision, determining that this Application could not be regarded as having been appropriately dealt with, within the meaning of s. 45.1 of the Code, and that this Application could proceed in the Tribunal’s process, on July 25, 2013. On September 17, 2013, the Tribunal issued a Notice of Hearing in this matter for March 24, 25 and 26, 2014. The respondent only filed its RFOP to defer this Application on February 13, 2014. While the hearing of the merits of this Application is scheduled to take place imminently, it appears that the judicial review application in DeLottinville has not been perfected, and it is not clear if and when a decision will be issued in that matter, and, if a decision is issued, if it will be subject to any appeals.

15In addition, the parties to this Application are not parties to the judicial review application in DeLottinville. The respondent submits that the outcome of the judicial review proceeding in DeLottinville could significantly influence the very essence of the Application with the Tribunal. In my view, however, it is not entirely clear how the outcome of the judicial review application in DeLottinville could influence this Application, as the parties to this Application are not parties to the judicial review application, and there does not appear to be any judicial review application of the Tribunal’s July 25, 2013 Interim Decision as it relates to this Application.

16To the extent that the respondent is effectively seeking a stay of this Application pending the outcome of the judicial review application in DeLottinville, I also find for the reasons set out above that the balance of convenience does not favour granting a stay. See Washington v. Toronto Police Services Board, 2009 HRTO 1038.

17The respondent’s request that this Application be deferred pending the outcome of the judicial review application in DeLottinville is dismissed.

Delay

18In its RFOP, the respondent also seeks dismissal of allegations in the Application relating to three incidents alleged to have occurred on or about May 24, 2007, spring 2008 and April 2009, on the basis of delay.

19In his response to the RFOP, the applicant submits that these alleged incidents do not form part of the allegations in the Application, and were only included as “background”. The applicant states that he agrees that he will only give evidence in relation to the two incidents within the “limitation period”.

20In the circumstances, it does not appear necessary to determine this aspect of the respondent’s RFOP at this point in time, and any outstanding concerns regarding the timeliness of allegations in the Application can be addressed at the hearing if necessary.

Bifurcation

21The respondent submits that the applicant’s request for public interest remedies is very broad, and that the applicant also asserts that he reserves the right to request further public interest remedies based on what he learns about existing measures taken by the TPS. The respondent submits that a review of all the materials to address the public interest remedies sought would be very costly, in terms of time and resources, for the TPS to prepare, and that it would also take considerable resources for the applicant to review, and for the Tribunal to hear evidence in regards to. In its RFOP, the respondent requests that the hearing be bifurcated so that the issues of liability and personal damages are dealt with by the Tribunal first, and public interest remedies are only considered, if appropriate, following a finding of liability. The applicant consents to bifurcation as requested.

22In the particular circumstances of this case, and in light of the applicant’s consent, the respondent’s request to bifurcate the hearing is granted.