Briggs v. Durham Regional Police Services Board, 2015 HRTO 133

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Briggs Applicant

-and-

Durham Regional Police Services Board, Paul Grigoriou and Joseph Kehoe Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: January 28, 2015 Citation: 2015 HRTO 133 Indexed as: Briggs v. Durham Regional Police Services Board

WRITTEN SUBMISSIONS

Joseph Briggs, Applicant Mindy Noble, Counsel

Durham Regional Police Services Board, Respondent David Cowling, Counsel

1This Application dated October 8, 2013, alleges reprisal with respect to services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The reprisal allegations raised in the Application arise out of certain events that occurred at 19 Division of the Durham Regional Police Service in the early morning hours of October 10, 2012, consequent to the applicant’s arrest, during which the applicant alleges that he was physically assaulted by the personal respondents on multiple occasions.

2The issue to be addressed in this Interim Decision arises out of a complaint made by the applicant under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”), arising from these same circumstances. This complaint was the subject of a disciplinary hearing against the personal respondent Officer Grigoriou that resulted in a judgment issued by the Hearing Officer on October 9, 2014, finding Officer Grigoriou not guilty on the charge of unlawful or unnecessary exercise of authority arising out of his interactions with the applicant at the relevant time.

3By Case Assessment Direction (“CAD”) dated November 19, 2014, I invited written submissions from the parties regarding the admissibility and relevance of the Hearing Officer’s judgment. In this CAD, I raised concerns about the scope of s. 83(8) of the PSA, and specifically whether this judgment constitutes a document prepared as the result of a complaint made under Part V of the PSA, whether a human rights proceeding is properly regarded as a “civil proceeding” within the meaning of that provision, and/or whether there is any statutory or other exception that would allow me to receive the judgment into evidence.

4Having reviewed the submissions of the parties and particularly in light of the public nature of the Hearing Officer’s judgment, it is my view that a judgment issued by a Hearing Officer following a disciplinary hearing under the PSA is not a “document” prepared as the result of a complaint made under Part V of the PSA within the proper scope of s. 83(8). As a result, I find that there is no statutory bar under the PSA to this Tribunal receiving the judgment into evidence.

5The more vexing issue is the purpose for which this judgment may be relied upon by the respondents in this proceeding. The respondent Board states in its submissions that it intends to rely upon the Hearing Officer’s judgment to assert that the applicant ought not to be permitted to argue that Officer Grigoriou used excessive force in his interactions with the applicant, either on the basis of issue estoppel or on the basis that it would be an abuse of process to allow the applicant to do so, and will also ask that the Tribunal accept the finding of facts made by the Hearing Officer regarding the level of force used by Officer Grigoriou.

6In Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, this Tribunal addressed the issue of whether a human rights application may properly be dismissed under s. 45.1 of the Code on the basis that the substance of the application already had been appropriately dealt with as a result of a complaint under Part V of the PSA. Relying upon the Supreme Court of Canada’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, this Tribunal held that a human rights application should not be dismissed on this basis, stating (at para. 89):

… 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.

7The respondent Board seeks to distinguish Claybourn on the basis that it is not seeking to invoke s. 45.1 of the Code, but rather is relying upon the common law doctrines of issue estoppel and abuse of process. In my view, this is a distinction without a difference. As stated in Claybourn, the common law doctrines of issue estoppel and abuse of process underlie and inform this Tribunal’s interpretation of s. 45.1 of the Code. I also note that the Supreme Court of Canada’s decision in Penner, above, expressly deals with the doctrine of issue estoppel and rejects the application of this doctrine in the context of a situation, not unlike the present case, where the substance of a plaintiff’s allegations in a civil claim already had been the subject of an unsuccessful disciplinary hearing under the PSA. In my view, given that an individual has the right to choose to pursue human rights allegations in court as opposed to before this Tribunal for an order pursuant to s. 46.1 of the Code, it would be anomalous for the court to reject the application of issue estoppel in such circumstances on the basis of the Penner decision but for this doctrine to be applied by this Tribunal in the very same circumstances.

8The respondent Board submits that it is not seeking to apply issue estoppel or abuse of process for the purpose of having the instant Application dismissed in its entirety, as the disciplinary hearing did not address the alleged actions of the personal respondent Special Constable Kehoe. In this regard, I note that s. 45.1 of the Code does not merely empower this Tribunal to dismiss human rights applications in their entirety on the basis that they already have been appropriately dealt with in another proceeding, but also empowers this Tribunal to dismiss an application in part. While not formally invoking s. 45.1 of the Code in the instant case, the effect of the application of issue estoppel or abuse of process sought by the respondent Board essentially would require this Tribunal to dismiss the instant Application in part.

9I take the point made by applicant counsel that the allegation of reprisal raised in the instant proceeding is a different legal issue than was addressed by the Hearing Officer under the PSA. However, in practical terms, if this Tribunal were to grant the respondent Board’s request and estop the applicant from asserting that he was subjected to the use of excessive force by Officer Grigoriou and accept the findings of fact made by the Hearing Officer regarding the level of force used by Officer Grigoriou, the effect of this would be to dismiss the Application in part as it relates to the alleged actions of Officer Grigoriou. In the absence of a finding that Officer Grigoriou used excessive force against the applicant in the course of conducting the search and when escorting the applicant to his cell (which is what is alleged by the applicant in his Application), it is difficult for me to conceive how Officer Grigoriou properly could be regarded as having engaged in an act of reprisal against the applicant, as opposed merely to fulfilling his proper role and function as a police officer in accordance with his training.

10As a result, in my view, the requests being made by the respondent Board arising out of the Hearing Officer’s judgment in substance represent a request for dismissal of the Application against Officer Grigoriou by the invocation of issue estoppel and abuse of process rather than under s. 45.1 of the Code, which is seeking to achieve the same result under a different guise. For the reasons articulated in Penner and Claybourn, I decline to use or rely upon the Hearing Officer’s judgment for the purposes sought. I will, however, receive the Hearing Officer’s judgment into evidence at the hearing and will consider the Hearing Officer’s findings in determining the issues before me.

11I appreciate that this decision will necessitate that certain evidence that was already led in the disciplinary proceeding before the Hearing Officer will need to be heard again by this Tribunal in the context of this proceeding. But in my view, that is the inescapable effect of the Penner and Claybourn decisions, for all of the reasons articulated in those decisions. However, as stated by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77: “There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system” including “when fairness dictates that the original result should not be binding in the new context” (at para. 52).