Stanley v. Toronto Police Services Board, 2015 HRTO 1566

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Faye Stanley on behalf of Taufiq Stanley Applicant

-and-

Toronto Police Services Board, Mark Saunders and Chris Howes Respondents

AND BETWEEN:

Faye Stanley on behalf of Yusuf Stanley Applicant

-and-

Toronto Police Services Board, Mark Saunders and Chris Howes Respondents

AND BETWEEN:

Faye Stanley on behalf of Yasin Stanley Applicant

-and-

Toronto Police Services Board, Mark Saunders and Chris Howes Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: November 19, 2015 Citation: 2015 HRTO 1566 Indexed as: Stanley v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Toronto Police Services Board, Mark Saunders and Chris Howes, Respondents Antonella Ceddia, Counsel

1This Interim Decision addresses whether the Tribunal should defer consideration of the Application pending the conclusion of a proceeding before the Office of the Independent Police Review Director ("OIPRD"). It also addresses the consolidation of the three Applications filed by the applicant.

Deferral

2The applicant filed three Applications, one on behalf of each of her three sons (the "claimants"). In the Applications, she alleged that the respondents discriminated against the claimants because of race, colour, ancestry, place of origin, ethnic origin and age contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the "Code"). The Application arises out of a raid of the applicant's home carried out by Toronto Police officers in April 2014. The Applicant alleged that the officers' conduct was fuelled by stereotypical assumptions about young black males and their propensity to commit criminal offences and to act violently. In addition to filing the Applications, the applicant filed a complaint to the OIPRD alleging misconduct on the part of the police officers involved in the raid.

3On September 16, 2015, the Tribunal's Registrar sent the parties a Notice of Intent to Defer consideration of the Application pending the conclusion of the OIPRD proceeding. In the Notice, the Tribunal's Registrar invited the parties to make submissions as to whether a deferral is or is not appropriate in this case.

4The respondents filed submissions in favour of deferral. The respondents submitted that deferral is appropriate as the OIPRD proceeding raises the same facts as the Application and the OIPRD is authorized by the Police Services Act to determine issues relating to officer misconduct which, under the police Code of Conduct, includes discrimination based on the Code. The respondents also submitted that the Tribunal has in the past generally deferred applications pending the completion of OIPRD complaints. Finally, the respondents submitted that proceeding with the Application while the OIPRD proceeding is ongoing would be unfair to the respondents and that a deferral would not prejudice the applicant.

5The applicant did not file any submissions in response to the Tribunal's Notice and the time for doing so has now passed.

Analysis and Conclusions

6Section 45 of the Code confirms the Tribunal's authority to defer consideration of an Application. Contrary to the respondents' submissions, deferral is not automatic simply because the parties are engaged in another proceeding that raises all or some of the same issues. In all cases, the Tribunal must consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

7Some 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, whether the decision-making body in the other proceeding has the authority to determine the issues raised in the Application, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties, having regard to the status of each proceeding and the steps that have been taken to pursue them.

8As noted by the respondents, the Tribunal has in the past deferred consideration of applications pending the outcome of OIPRD proceedings. See, for example, Preddie v. Regional Municipality of Waterloo Police Services Board, 2013 HRTO 637. However, those decisions were decided prior to the Supreme Court of Canada's decion in Penner v. Niagara (Regional Police Services Board), [2013] 2 SCR 125, 2013 SCC 19 ("Penner") and the Tribunal's decision in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 ("Claybourn"), upheld in Ontario (Community Safety and Correctional Services) v De Lottinville, 2015 ONSC 3085 ("De Lottinville")

9In Penner, the Supreme Court found that it would be unfair to apply the doctrine of issue estoppel to allow the findings in the Ontario police discipline process to act as a bar to an individual's subsequent civil claim. Claybourn involved a situation where three applicants each filed Applications after having filed complaints under the Police Services Act, RSO 1990, c P.15 ("PSA"). The Tribunal refused to dismiss the Applications under s. 45.1 of the Code due to the previous PSA proceedings.

10Section 45.1 of the Code permits the Tribunal to dismiss an Application if another proceeding has appropriately dealt with the substance of the Application. The Tribunal refused to dismiss the Applications in Claybourn for a number of reasons which are summarized in para. 89 of the Decision:

In our view, 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. Accordingly, in respect of all three Applications before us, we find that these Applications cannot be regarded as having been "appropriately dealt with" under s. 45.1 of the Code and exercise our discretion not to dismiss these Applications but to allow them to proceed in the Tribunal's process.

11As the Divisional Court found in De Lottinville, the Tribunal did not state in Claybourn that proceedings under the PSA can never form the basis of a dismissal under s. 45.1 of the Code. Nevertheless, since Penner and Claybourn, the Tribunal has yet to dismiss an Application under s. 45.1 of the Code based on the result of an OIPRD proceeding. Therefore, I find that any overlap in legal issues does not weigh in favour of deferral after the Penner and Claybourn decisions.

12I do agree with the respondent that there is an overlap in factual issues between this Application and the OIPRD proceedings. It might have been appropriate to defer the Application if materials from the OIPRD investigation were admissible as evidence before this Tribunal. However, that is not the case due to certain statutory privilege and confidentiality provisions contained in the PSA. Pursuant to these provisions, documents generated during the complaint process are inadmissible in other proceedings. These provisions also provide that persons engaged in the administration of the complaints process cannot be forced to testify in civil proceedings about information obtained in the course of their duties and they are obligated to keep information obtained during the process confidential, subject to certain limited exceptions. See 26(11), ss. 83(7)-(8) and 95 of the PSA. Given that materials from the OIPRD proceeding are inadmissible in this proceeding, I do not find find that the overlap in the facts between the two proceedings weighs in favour of deferral.

13Finally, although the respondents claim that it would be unfair to them to proceed with the Application while the OIPRD proceeding is ongoing, they have not pointed to any specific prejudice they might face.

14For the above reasons, I find that, on balance, deferral is not appropriate in the circumstances of this case.

Consolidation of Applications

15Rule 1.7(d) of the Tribunal's Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together.

16Since all three Applications raise the same factual and legal issues, it appears appropriate for the Tribunal to consolidate and hear the Applications together. If any party objects to this consolidation process, they may file written submissions setting out their position on the issue.

ORDER

17The Tribunal will not defer consideration of this Application.

18The respondents shall file their Response(s) within 35 days of the date of this Interim Decision.

19If any party objects to the consolidation of these three Applications, they may file written submissions setting out their position within 14 days of the date of this Interim Decision. If no party objects to the consolidation within this time period, the Tribunal will consolidate the three Applications and hear them together.

20I am not seized of this matter.