HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Durell Claybourn
Applicant
-and-
Toronto Police Service and Toronto Police Services Board
Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Claybourn v. Toronto Police Service
WRITTEN SUBMISSIONS
Durell Claybourn, Applicant
Bruce Best, Counsel
Toronto Police Service and Toronto Police Services Board, Respondents
David A. Gourlay, Counsel
Introduction
1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a judicial review proceeding in another case, and to deal with other preliminary issues prior to the hearing of the merits of the Application.
BACKGROUND
2On October 19, 2010, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to services because of his race, colour, and age.
3Specifically, the applicant alleged that on January 25, 2010, after he used a pay phone near the apartment building where he lives, two TPS officers stopped, questioned, and searched him. He alleged that the officers profiled him as a drug suspect because he is a young Black person.
4On December 17, 2010, the respondents filed a Response, which denied the allegations of discrimination. Specifically, they stated that the officers interacted with the applicant for non-discriminatory reasons, namely, they were in an area known to be frequented by drug traffickers, and saw the applicant using a pay phone known to be used to facilitate drug transactions.
5The respondents also requested that the Tribunal dismiss the Application on a preliminary basis pursuant to s. 45.1 of the Code because another proceeding had appropriately dealt with the substance of the Application. Specifically, they stated that the applicant had previously filed a complaint under the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”), and that the proceeding under the PSA had appropriately dealt with the substance of the Application.
6The respondents also stated that the TPS is not a legal entity against which an Application can be filed.
7On February 3, 2011, the applicant filed a Reply, which opposed the respondents’ request to dismiss his Application on a preliminary basis. He also filed a Request for an Order During Proceedings (“RFOP”) to amend the Application by adding the Code ground of “sex”.
8On February 25, 2011, the respondents filed a Response to the RFOP, which opposed the applicant’s request to amend his Application.
9On March 1, 2011, the Tribunal issued a Case Assessment Direction (“CAD”), which notified the parties that a hearing would be held to address the preliminary issues raised by the parties.
10On November 18, 2011, the Tribunal issued another CAD, which notified the parties that a joint hearing would be held with several other cases to address the s. 45.1 issue.
11The hearing took place on May 14 and 15, 2012. Three cases were before the Tribunal: (1) the case at hand, (2) Dave Ferguson v. Toronto Police Services Board, and (3) Dean de Lottinville v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Ontario Provincial Police) (“de Lottinville”). In addition to the above parties, a number of intervenors participated.
12On November 19, 2012, the Tribunal issued a further CAD, which notified the parties and the intervenors that it intended to await the decision of the Supreme Court of Canada in Penner v. Niagara Regional Police Services Board (“Penner”) before making its own decision, and that the parties and intervenors would be allowed to make written submissions on the impact of Penner on the s. 45.1 issue.
13On April 5, 2013, the Supreme Court released Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. In April and May 2013, the parties and intervenors filed submissions with the Tribunal on the impact of Penner.
14On July 25, 2013, the Tribunal issued its Interim Decision, 2013 HRTO 1298, which decided that in light of the Supreme Court’s holding in Penner, s. 45.1 of the Code should not be applied 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, and the Applications would therefore be allowed to proceed.
15On September 13, 2013, the Tribunal issued a Notice of Hearing to the parties in the case at hand, which informed them that the hearing was scheduled for March 24, 25 and 26, 2014.
16On December 4, 2013, the respondent in de Lottinville filed a Notice of Application for Judicial Review of the Tribunal’s Interim Decision, 2013 HRTO 1298, with the Superior Court of Justice (Divisional Court). The respondents in the case at hand have not filed a Notice of Application for Judicial Review.
17On December 13, 2013, the respondents filed an RFOP, which requested that the Application be deferred until the Application for Judicial Review in de Lottinville has been disposed of.
18On December 23, 2013, the Applicant filed a Response, which opposed the respondents’ Request.
19On January 7, 2014, the respondents filed written submissions in reply to the applicant’s Response.
ANALYSIS
Deferral
20The Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See section 40 of the Code and Rule 1.1 of the Tribunal’s Rules of Procedure.
21Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules. Rule 14.1 of the Tribunal’s Rules of Procedure provides that the 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. 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.
22In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:
Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
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 type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.
23In their submissions, the respondents stated that the Tribunal should defer consideration of the Application because the Divisional Court’s decision in de Lottinville may quash the Tribunal’s Interim Decision, and either dismiss the three human rights Applications or send them back to the Tribunal for a new s. 45.1 hearing. Therefore, the respondents stated, they would be prejudiced if the Application at hand proceeds to a merits hearing, while there would be no specific prejudice to any party if the Application is deferred because a considerable amount of time has already passed while the Tribunal initially considered the 45.1 issue.
24In his submissions, the applicant stated that the Tribunal should not defer consideration of the Application because the Tribunal’s Interim Decision is the current law with respect to the interaction between s. 45.1 of the Code and the public complaints process under the PSA, and the possibility that the law may change in the future is not a basis to defer the Application. He also stated that the judicial review proceeding before the Divisional Court is only dealing with the de Lottinville case, and that he would, in fact, be prejudiced by a further delay in hearing his Application before the Tribunal because the incidents at issue occurred in January 2010.
25In my view, deferral is not the most fair, just and expeditious way of proceeding with the Application. Although the concurrent proceedings before the Divisional Court and the Tribunal raise the possibility that the proceeding before the Tribunal may ultimately be nullified, this factor is outweighed, in my view, by other factors. Specifically, the parties in the case at hand are not parties in the judicial review proceeding before the Divisional Court, the Tribunal scheduled the merits hearing in the case at hand before the respondent in de Lottinville filed a Notice of Application for Judicial Review, the proceeding before the Divisional Court and any related appeals before higher courts may take years to resolve, and the incidents at issue in the hearing before the Tribunal occurred more than four years ago.
26Accordingly, the Tribunal shall not defer consideration of the Application pending the conclusion of the de Lottinville proceeding before the courts, and the hearing scheduled for March 24, 25 and 26, 2014 shall proceed as scheduled.
Other Preliminary Issues
Amend Application
27Based on my review of the file, it appears that the applicant’s request to amend his Application by adding the Code ground of “sex” was not dealt with at the s. 45.1 hearing.
28In determining a request to amend a pleading, the Tribunal will consider a number of factors, including the nature of the requested amendment, the conduct of the party seeking the amendment, the prejudice to the other party, and the impact on the course of the hearing. See Boldt-Macpherson v. The Hoita Kokoro Centre et al, 2008 HRTO 16; Dube v. Canadian Career College, 2008 HRTO 336; Wozeilek v. 7-Eleven Canada, 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
29In his submissions, the applicant stated that his request should be granted because it was made early in the process before the Tribunal, and the respondents will not suffer any prejudice because they can be provided with an opportunity to respond to the amendment.
30In their submissions, the respondents stated that the applicant’s request should not be granted because it is an abuse of process (i.e. it was filed to undermine the respondents’ request to dismiss the Application on a preliminary basis by introducing a new allegation that was not part of the applicant’s complaint under the PSA), it is untimely (i.e. it was filed outside the one-year time limit set out in s. 34(1) of the Code, and the applicant has not demonstrated that the delay was incurred in good faith), and it is a substantive change to the Application.
31In my view, the applicant’s request should be granted because it is fairly a simple and straightforward amendment (in essence, he is requesting that his allegation that the TPS officers profiled him as a drug suspect because he is a young Black person be amended to the officers profiled him as a drug suspect because he is a young Black man), the respondents had notice of the applicant’s request early in process before the Tribunal, and the Tribunal will provide the respondents with a fair opportunity to respond to the amendment.
32The respondents are directed to inform the Tribunal before, or at the outset of, the hearing how they intend to respond (i.e. through written submissions and/or presenting their case), and whether they require additional leeway (i.e. a further hearing day or an extension of time to provide written submissions) to have a fair opportunity to respond.
Naming of Respondents
33It also appears that respondents’ position that the TPS is not a legal entity against which an Application can be filed has not been dealt with. I would note that in other cases, the Chief of Police has accepted some degree of liability for the acts of individual police officers. See, for example, Shaw v. Phipps, 2010 ONSC 3884.
34The parties are directed to consult with each other, and address this issue before, or at the outset of, the hearing.
ORDER
35The Tribunal therefore makes the following orders and directions:
The respondents’ request that the Application be deferred until the Application for Judicial Review in de Lottinville has been disposed of is denied.
The hearing scheduled for March 24, 25 and 26, 2014 shall proceed as scheduled.
The applicant’s request to amend his Application by adding the Code ground of “sex” is granted.
The respondents are directed to inform the Tribunal before, or at the outset of, the hearing how they intend to respond to the amendment of the Application (i.e. through written submissions and/or presenting their case), and whether they require additional leeway (i.e. a further hearing day or an extension of time to provide written submissions) to have a fair opportunity to respond.
The parties are directed to consult with each other, and address the issue of naming the correct respondents before, or at the outset of, the hearing.
Dated at Toronto, this 19th day of March, 2014.
“Signed by”
Ken Bhattacharjee
Vice-chair