Ng v. Chief of Toronto Police Service, 2015 HRTO 1409

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Ng

Applicant

-and-

Chief of Toronto Police Service, Office of the Independent Police Review Director, and Her Majesty the Queen in Right of Ontario as Represented by

the Ministry of the Attorney General, College Park Courts

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: October 22, 2015

Citation: 2015 HRTO 1409

Indexed as: Ng v. Chief of Toronto Police Service

1This Application alleges reprisal and discrimination with respect to services because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application names three respondents. This Interim Decision determines how the Application will be dealt with in respect of these three respondents.

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of the Attorney General

3The allegations about this respondent relate to decisions made by a Crown Attorney with respect to charges laid against the applicant. In its Response, the respondent notes that the decisions made by a Crown Attorney in the course of performing the duties of a Crown Attorney are protected by the doctrine of prosecutorial immunity. The respondent asked that the Application be dismissed as against it on that basis.

4The applicant replied to this submission. In an email dated September 5, 2015, the applicant referred to the decision of the Supreme Court of Canada in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 SCR 170. He noted that the Court determined that the doctrine of prosecutorial immunity was not absolute.

5In Proulx v. Quebec (Attorney General), 2001 SCC 66, the Supreme Court stated, at paragraph 4:

Under our criminal justice system, prosecutors are vested with extensive discretion and decision-making authority to carry out their functions. Given the importance of this role to the administration of justice, courts should be very slow indeed to second-guess a prosecutor’s judgment calls when assessing Crown liability for prosecutorial misconduct. Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, affirmed unequivocally the public interest in setting the threshold for such liability very high, so as to deter all but the most serious claims against the prosecuting authorities, and to ensure that Crown liability is engaged in only the most exceptional circumstances.

(See also Henry v. British Columbia (Attorney General), 2015 SCC 24.)

6In Inward v. Toronto (City), 2010 HRTO 2127, the Tribunal stated, at paragraph 12:

[U]nless there are allegations of a Code violation in which the prosecutor had “a motive that involved an abuse or perversion of the system of criminal justice for ends it was not designed to serve” (Nelles at p. 199), prosecutorial immunity applies.

7In this case, the applicant alleges that the conduct or decisions of the prosecutor was motivated by discriminatory views and opinions about men and suggests that the prosecutor should therefore not be protected by immunity.

8In the present case, the applicant was charged with offences by the police in March. According to the respondent, the Crown Attorney to whom the allegations relate became involved in the applicant’s case on November 12, 2014. On December 3, 2014, the Crown Attorney determined that the charges should be dropped because there was no reasonable prospect of a conviction.

9The conduct on the part of the Crown in this case does not constitute the sort of circumstances that the Supreme Court has identified as prosecutorial conduct that would justify not giving immunity to the actions of a Crown Attorney for decisions made in the course of her duties.

10I therefore find that the doctrine of prosecutorial immunity applies and the Application as against Her Majesty the Queen in Right of Ontario as Represented by the Ministry of the Attorney General, College Park Courts is dismissed on that basis.

Office of the Independent Police Review Director and Toronto Police Services

11The allegations concerning the Office of the Independent Police Review Director (OIPRD) relate to the decision by the OIPRD to not investigate complaints the applicant made against the Toronto Police Service. The OIPRD filed a Response to the Application, denying that it discriminated against the applicant. It also filed a Request for Order During Proceedings, asking that the Application against it be dismissed because the Application is an attempt to have this Tribunal review the decisions of the OIPRD. The OIPRD submits that the Application against it is a collateral attack on its decisions and that the appropriate remedy for the applicant is to seek a judicial review rather than bringing this Application.

12The allegations against the Toronto Police Service relate to the arrest that proceeded the involvement of the Crown Attorney. The allegations are not very clear. However, it appears that they are essentially that the police did not believe the applicant and believed a woman and that this shows discrimination on the grounds of sex and that there was subsequent reprisal.

13From the information provided by the applicant, it is not clear how he will be able to successfully show that he was discriminated against on the basis of sex or reprisal by the police or by the OPIRD.

14When it appears to the Tribunal that an Application may have no reasonable prospect of success, the Tribunal may schedule a summary hearing. The summary hearing process is discussed in Rule 19A of the Tribunal’s Rules and in a Practice Direction. The Tribunal’s Practice Direction on Summary Hearings states:

A summary hearing usually considers:

• whether, assuming all of the allegations are true, the Application has no reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation; and/or

• whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.

15Rule 19A and the Tribunal’s Practice Direction on Summary Hearing Requests are available on the Tribunal’s website at www.sjto.gov.on.ca/hrto/.

16A summary hearing is usually held by telephone conference call. The Tribunal does not usually hear evidence during a summary hearing. Instead, the hearing allows the applicant to explain what evidence is available that will show that the discrimination that he alleges occurred. If the applicant cannot show that such evidence is available, the Application will be dismissed. If he can show that such evidence exists, the Tribunal will continue to process the Application.

17In addition to the issue of whether the Application as against the OPIRD and/or the Toronto Police Service has a reasonable prospect of success, the summary hearing will also consider the issue raised by the OPIRD of whether this Tribunal has jurisdiction to consider the decisions the OPIRD has made in this case. In regard to this issue, section 45.1 of the Code provides:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

18In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), the Supreme Court of Canada has explained that a human rights tribunal should not place itself in the position of reviewing decisions or other decision making bodies.

19At the summary hearing, the parties may address the issue of whether the Application should be dismissed as having no reasonable prospect of success and also of whether the Tribunal has jurisdiction to consider the applicant’s complaints about the OPIRD decisions.

20The Tribunal Registrar will schedule a half-day telephone conference call summary hearing. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon for this portion of the hearing no later than 35 days after the date of this CAD.

The applicant’s conduct

21The Tribunal’s Rules of Procedure require that all persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the Tribunal and other participants in the proceeding (Rule A7). Some of the applicant’s communications are neither courteous nor respectful. The applicant must ensure that all future communications are courteous and respectful to both the other party and the Tribunal. Failure to do so could result in a dismissal of the Application because of an abuse of the Tribunal’s process.