Human Rights Tribunal of Ontario
B E T W E E N:
Robert White Applicant
-and-
Durham Regional Police Services Board and Toby Sebaaly Respondents
INTERIM DECISION
Adjudicator: Laurie Letheren Date: May 26, 2016 Citation: 2016 HRTO 721 Indexed as: White v Durham Regional Police Services Board
WRITTEN SUBMISSIONS
Robert White, Applicant Marisa Scotto di Luzio, Counsel
Durham Regional Police Services Board and Toby Sebaaly, Respondents Ian Johnstone, Counsel
Introduction
1This Interim Decision addresses the issue of whether the Tribunal should dismiss the Application or defer consideration of the Application. It also addresses the issues of whether the applicant’s request to amend the Application should be granted; and whether the hearing should be bifurcated between liability and remedy stages.
Deferral
2The respondents have made a Request for Order During Proceedings (Request) that the hearing of this Application be deferred pending the conclusion of the proceeding against the individual respondent under the Police Services Act (“PSA”). They submit that it would not be an efficient use of the parties resources to require them to prepare for a hearing of this Application while the PSA proceeding is ongoing.
3In addition, the respondents submit that since the applicant has filed a Request to amend the Application, it would be more sensible to delay the disclosure requirements set out in the Notice of Hearing until the pleadings are finalized.
4The applicant opposes the deferral request. He submits that although the facts in the two proceedings may overlap, the legal issues differ. The applicant relies on the Supreme Court of Canada’s decision 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”) in which it was determined that it would be unfair to the applicant if the Tribunal allowed a PSA proceeding to act as a bar to the Application.
5Section 45.1 of the Code permits the Tribunal to dismiss an Application if another proceeding has appropriately dealt with the substance of the Application. In Claybourn, the Tribunal refused to dismiss the Applications for a number of reasons as stated 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