Black Action Defense Committee v. Toronto Police Services Board, 2014 HRTO 907

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Black Action Defense Committee

Applicant

-and-

Toronto Police Services Board and Bill Blair

Respondents

DECISION

Adjudicator: David Muir

Date: June 19, 2014

Citation: 2014 HRTO 907

Indexed as: Black Action Defense Committee v. Toronto Police Services Board

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 goods and services because of age, ancestry, association, citizenship, colour, ethnic origin, place of origin, race and reprisal.

2The Application as it was initially filed with the Tribunal described itself as a class action lawsuit. The Application (Form 1) contained no narrative as such but referred to attachments to the Application including a Statement of Claim (Court File No. CV-13-492909) wherein the applicant Black Action Defence Committee made claims against the Toronto Police Services Board and Bill Blair.

3On March 24, 2014 the Tribunal issued a Notice of Intent to Dismiss (“NOID”) the Application pursuant to section 34(11) of the Code because it appeared that a civil proceeding had been commenced in a court in which the applicant was seeking an Order under section 46.1 of the Code. Section 34(11) provides:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

4The applicant responded with very brief submissions, advising: “BADC is withdrawing as an organization from participating in a class action law suit in other forums as individual human representative plaintiffs are replacing BADC. Thus BADC will only now be involved in the claim at the HRTO and nowhere else.” The applicant also filed a revised Application form, which somewhat confusingly continued to refer to the existence of an ongoing civil action based on the same facts of the Application. The narrative describing the allegedly discriminatory events stated only, “A general practice complained of against the respondents is attached. This is a class action law suit that will [be] comprise[d] of many individuals and their individual stories will be filed later.” However, no attachment was included.

5In a Case Assessment Direction issued on May 6, 2014 the Tribunal sought further submissions on the issue of the status of the civil claim and whether there remained a basis to dismiss the application under s. 34(11) of the Code. The Tribunal noted that while the applicant had filed a revised Application form it had not filed any supporting material to demonstrate its change in plaintiff status, and that the basis for the claim that the applicant was not still a plaintiff in a related civil claim remained unclear. Two other preliminary issues were identified:

Does the applicant have standing to file this Application. See D’Orazio v. Ontario Human Rights Commission, 2014 HRTO 111.

If the applicant has standing, is it appropriate to defer this Application pending the conclusion of ongoing related civil claim.

6The Case Assessment Direction went on to provide the following directions:

a. A copy of this Application, the NOID and the applicant’s Response to the NOID will be delivered with this Case Assessment Direction. The respondent need not file a Response unless directed to do so.

b. The applicant will deliver and file its submissions in response to [the] three issues identified above within 14 days of the date of this Direction;

c. The respondents may deliver and file their responding submissions if any within 14 days of receiving the applicant’s materials.

d. The applicant may deliver and file its reply submissions within 7 days of receiving the respondents’ materials.

e. The Tribunal may determine these issues based on the written materials. If the Tribunal considers it appropriate to do so it may schedule an oral hearing.

7The applicant has not responded to these Directions nor has it communicated with the Tribunal in any way.

8The Application is dismissed pursuant to section 34(11) of the Code. In its original Application the applicant, in lieu of a narrative in the Form 1, appended the statement of claim issued in the civil case. In both the original and revised Form 1 the applicant acknowledges in response to the questions in part 12 of the Application that the facts of the case are included in a court action; that the applicant is seeking a remedy based on the discrimination in the court action and that the court action is ongoing, has not been settled or withdrawn. A review of the statement of claim confirms these assertions in the Application. The statement of claim includes the following requests for relief amongst others:

General damages against the Defendants in the amount of $50 million for racial profiling (and carding), which is a violation of [the] constitutional rights of the class of persons represented by the Plaintiff pursuant to the Canadian Charter of Rights and Freedoms (the “Charter”); and the Ontario Human Rights Code.

An Order requiring the Defendants to comply with their obligations under sections 7, 9 and 15 of the Charter; the Ontario Human Rights Code and the Police Services Act as well as relevant provisions of numerous international human rights conventions and instruments and declarations.

An Order requiring the Defendants to desist from engaging in and condoning racial profiling against the Plaintiff and all class members and against all African-Canadians ….

9Although there is no reference to section 46.1 of the Code in the statement of claim the Tribunal has explained on many occasions that such explicit reference is not required. See Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282. It is sufficient that the Tribunal be satisfied that the facts and issues in a court action are the same as those in the Application, and that the plaintiff has asked the court to find an infringement of their rights under the Code and sought damages based on that alleged infringement.

10As indicated earlier the applicant in its response to the Notice of Intent to Dismiss pursuant to section 34(11) asserted that it was withdrawing as plaintiff in the court class action as individual claimants emerge. However this assertion is not supported by any documentation and there is no indication that the applicant has taken any steps to remove itself from the court action. In any case it is not clear how this potential fact changes anything at this stage. In the absence of any evidence that the applicant has withdrawn as the plaintiff in the other proceeding it is clear section 34(11) applies in this circumstance. See Kupiec v. Starburst Coin Machines, 2009 HRTO 75. Although this is a decision in relation to an Application filed pursuant to section 53(3) of the Code I find it persuasive and I adopt its reasoning.

11In the present case there can be no dispute that the applicant has commenced a civil suit in which it is seeking damages for the identical violations of the Code which are raised in this Application. Accordingly this Application must be dismissed pursuant to section 34(11) of the Code. In light of my finding, it is unnecessary to deal with the additional issues raised in the Case Assessment Direction.