HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zuhail Khan
Applicant
-and-
Toronto Police Services Board and Vignarajah Ganesh
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Khan v. Toronto Police Services Board
WRITTEN SUBMISSIONS
Toronto Police Services Board and Vignarajah Ganesh, Respondents
Amy Murakami, Counsel
1This Interim Decision addresses the respondents’ request to defer the Application pending the completion of a judicial review proceeding in a different case.
2In an Application filed on July 3, 2013, the applicant alleged that the respondents discriminated against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application arises out of incidents that occurred when the applicant was arrested and placed into custody on or around June 20 and 21, 2013.
3On July 3, 2013 the applicant made a complaint about these incidents to the Office of the Independent Police Review Director (“OIPRD”) under the Police Services Act (“PSA”). By letter dated September 27, 2013, the OIPRD advised the applicant that it was taking no further action in regards to his complaint because Toronto Police Services (“TPS”) had stated that the personal respondent was not a police officer but a court officer. The OIPRD advised the applicant that the TPS was conducting an internal investigation of the incident raised in the complaint.
4In their Response to the Application, the respondents requested that the Tribunal defer consideration of the Application pending the outcome of a judicial review proceeding in Her Majesty the Queen in Right of Ontario v. de Lottinville. The respondents claim that the allegations contained in the Application have already been investigated and dismissed under the Police Services Act complaint. They claim they would be severely prejudiced if the Application were to proceed before a decision is made in the de Lottinville judicial review.
5De Lottinville was one of three applications addressed by the Tribunal in its Interim Decision in Claybourn v. Toronto Police Services, 2013 HRTO 1298 (“Claybourn”). In Claybourn, a three-person panel of the Tribunal dealt with three requests to dismiss Applications pursuant to s. 45.1 of the Code. Under s. 45.1 of the Code, the Tribunal has the power to dismiss applications if another proceeding has appropriately dealt with the substance of the application. In Claybourn, the Tribunal determined that, in light of the Supreme Court’s holding in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, 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. Therefore, the Tribunal allowed the three applications before it to proceed.
6The respondent to the de Lottinville application, Majesty the Queen in Right of Ontario, sought judicial review of the Claybourn decision. The respondents in this case are seeking a deferral of the Application pending the outcome of the de Lottinville judicial review.
Analysis
7The Tribunal has consistently denied requests to defer applications pending the completion of the de Lottinville judicial review in circumstances such as those in the present case. See Claybourn v. Toronto Police Service, 2014 HRTO 386; Permaul v. Toronto Police Services Board, 2014 HRTO 365; Smith v. Toronto Police Services Board, 2014 HRTO 366, Lawrence v. Ontario Provincial Police, 2014 HRTO 364, and Ferguson v Toronto Police Services Board, 2014 HRTO 369.
8The respondents have not provided any reasons that would cause me to reach a different conclusion. For all the reasons set out in these above-cited Decisions, I find that deferral of this Application pending the outcome of judicial review application in de Lottinville is not appropriate.
ORder
9The respondents’ deferral request is denied.
10I am not seized of this matter.
Dated at Toronto, this 12th day of May, 2014.
“signed by”
Jo-Anne Pickel
Vice-chair