HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Doug Surh
Applicant
-and-
Toronto Police Services Board
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed As: Surh v. Toronto Police Services
WRITTEN SUBMISSIONS
Doug Surh, Applicant
Self-represented
Toronto Police Services Board, Respondent
David Gourlay, Counsel
1The applicant filed this Application alleging that he had been detained, questioned and his vehicle searched by police officers in contravention of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2This Interim Decision addresses a request by the respondent, the Toronto Police Services Board (the "Board"), that this Application be deferred pending the completion of judicial review proceedings in a different Application. It also addresses a request made by the applicant for the names of three officers he proposes to name as individual respondents, as well as for a publication ban.
decision and analysis
Deferral
3In its Response to the Application, the respondent requests that the Tribunal defer consideration of the Application pending the outcome of judicial review proceedings in Her Majesty the Queen in Right of Ontario v. De Lottinville ("De Lottinville"). The respondent submits that the allegations in the present Application have already been investigated and dismissed in a Police Services Act ("PSA") complaint made by the applicant. The respondent further submits that it would be severely prejudiced if this Application were to go forward before a decision is made in the De Lottinville judicial review.
4De Lottinville was one of three Applications addressed by the Tribunal in its Interim Decision in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 ("Claybourn"). In Claybourn, the Tribunal dealt with requests to dismiss three separate Applications, pursuant to s. 45.1 of the Code, where complaints had also been filed under the PSA. 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 allowed the three Applications before it to proceed. The Tribunal held that, in light of Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, s. 45.1 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. The respondent to the De Lottinville Application, Her Majesty the Queen in Right of Ontario, subsequently filed an application for judicial review of the Tribunal's decision.
5In his Reply to the Response, the applicant sought disclosure of the PSA complaint file, but otherwise made no submissions on the merits of the request.
6The Tribunal has consistently denied requests to defer applications pending the completion of the De Lottinville judicial review proceedings in circumstances similar to those in the present case. See: Claybourn v. Toronto Police Service, 2014 HRTO 367; 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; Ferguson v. Toronto Police Services Board, 2014 HRTO 369; and, Claybourn v. Toronto Police Service, 2014 HRTO 386.
7There is no basis in the respondent's submissions suggesting a different conclusion should be reached in this case. Accordingly, the Board's request to defer is denied. It is unnecessary to address the applicant's request for the disclosure of the PSA complaint file in light of the Tribunal's decision denying the deferral request.
Individual Respondents
8The applicant brought a Request for an Order During Proceedings asking for the name of three individual officers who were present at the time of the incident that gave rise to this Application. He was aware of the name of a fourth. The respondent Board provided this information in its Response to the Application, making it unnecessary for me to rule on this Request.
9It is clear from the Request and Application that the applicant wishes to name these individuals, whom he identifies as "respondents" in his Request. The respondent states that, although it is prepared to provide the names, it is not agreeing to them being added as individual respondents. It notes that these individual officers have not been notified of the Request, and that it would be improper for the Tribunal to rule on this issue until the applicant delivers a request to them and they are provided an opportunity to make submissions.
10I agree that the applicant should deliver a Request for an Order to the individual officers if he wishes to name them as respondents in this Application. As the applicant is aware from previous Applications, when individual officers are named, they often have separate representation and the applicant cannot presume that the counsel for the organizational respondent represents their interests.
11I would note that the organizational respondent accepts that it is liable for the actions of its individual police officers done in the course of their duties. Therefore, adding the individual officers as respondents may be unnecessary.
Publication Ban
12In the same Request for an Order in which the applicant seeks the names of the three officers, he also attaches a request on a separate piece of paper stating the following:
Additional information: for applicant complaint application. Applicant requests publication ban.
13He does not provide any further information or submissions on this request, and there is nothing on the face of the Application that would support such an extraordinary order. It is, therefore, denied.
order
14I have made the following orders:
a. The Toronto Police Services Board's request for deferral of this Application pending the judicial review in Her Majesty the Queen in Right of Ontario v. De Lottinville is denied.
b. The applicant's request for a publication ban is denied.
15For reasons set out above, it is unnecessary to deal with the other requests.
Dated at Toronto, this 31st day of March, 2015.
"Signed by"
Naomi Overend
Vice-chair