HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Barry Dennison
Applicant
-and-
Toronto Police Service and Starbucks Inc.
Respondents
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Dennison v. Toronto Police Service
WRITTEN SUBMISSIONS
Barry Dennison, Applicant
Self-represented
Toronto Police Service, Respondent
Lauren Elliott, Counsel
1This Interim Decision addresses whether the Application should be deferred pending a decision by the Office of the Independent Police Review Director (“OIPRD”).
2The applicant filed an Application alleging discrimination because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that a female police officer laid a charge against the applicant under the Provincial Offences Act, R.S.O. 1990 c. P. 33, as amended, for her own personal agenda and because the applicant who is male did not show her deference.
3In addition to filing his Application, the applicant also filed a complaint on or about September 8, 2017 to the OIPRD. The complaint addresses substantially the same allegations raised in this Application. On September 8, 2017, the Tribunal sent the parties a Tribunal Notice of Intent to Defer (“NOID”) and requested submissions on the issue of deferral.
4The applicant takes the position that this Application should not be deferred because he does not raise the human rights issues in the OIPRD complaint, and because it would further delay the Tribunal hearing this Application.
5The respondent, Toronto Police Service, takes the position that the Application should be deferred because the subject matter of the Application and the OIPRD complaint are the same. The respondent, Starbucks Inc., did not file submissions.
analysis
6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (see section 45 of the Code and Rule 14.1 of the Tribunal’s Rules of Procedure). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
7The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
8In Stanley v. Toronto Police Services Board, 2015 HRTO 1566 (“Stanley”), at para. 12, the Tribunal stated that the statutory privilege and confidentiality provisions of the Police Services Act, R.S.O. 1990, c. P. 15 as amended (“PSA”), specifically subsections 26.1(11), 83(7)-(8) and section 95, means that materials from the OIPRD proceeding are inadmissible before the Tribunal. These provisions generally relate to the documents and materials used in the PSA proceeding, but decisions made under the PSA are not included in these provisions. Therefore, despite the factual overlap between the two proceedings, the Tribunal did not defer the Application. See also White v. Durham Regional Police Services Board, 2016 HRTO 721 at paras. 6 and 7 and Meynell v. Toronto Police Services Board, 2016 HRTO 1175 at paras. 5 and 6. See also commentary about the statutory privilege and confidentiality provisions of the PSA in McWilliam v. Toronto Police Services Board, 2016 HRTO 934 at paras. 10-13 and 22.
9In Stanley, the Tribunal acknowledged that in the past the Tribunal had deferred consideration of applications pending the outcome of OIPRD proceedings, for example in Preddie v. Regional Municipality of Waterloo Police Services Board, 2013 HRTO 637. However, the Tribunal also pointed out that those decisions were decided prior to 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 (Div. Ct.) (“De Lottinville”).
10In 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 because the applicant does not prosecute the claim under the PSA and there are different interests at stake. The Tribunal took a similar view in Claybourn in which it considered a situation where three applicants each filed Applications after having filed complaints under the PSA. The Tribunal refused to dismiss the Applications under s. 45.1 of the Code due to the previous PSA proceedings.
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. The Tribunal found that any overlap in legal issues did not weigh in favour of deferral after the Penner and Claybourn decisions.
12In Stanley, the Tribunal did not specifically address the issue of whether an OIPRD decision itself is admissible in a Tribunal hearing. It also did not consider whether, if a decision is admissible and contains findings of fact applicable to our process, it should have any bearing on whether or not the Tribunal process is deferred.
13However, even assuming that decisions made under the PSA are admissible in this proceeding, given the SCC’s statement in Penner about the different interests at stake in an OIPRD proceeding versus a parallel civil proceeding (or in this case, an Application to the Tribunal), I find this weighs against deferral.
14It is not appropriate to defer this Application. As such, despite the Tribunal’s Notice of Intent to Defer and the respondent’s position, this Application will not be deferred.
15In making this decision about deferral, I leave for another day a consideration of whether or not any factual findings made in an OIPRD decision are binding on the Tribunal.
no reasonable prospect of success
16Having reviewed the file, the Tribunal has decided to hold a summary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
17The hearing will be scheduled for a half day hearing by conference call. This Case Assessment Direction contains important directions for the parties about the issues above that will be determined at the hearing.
IS THERE NO REASONABLE PROSPECT THAT THE APPLICATION OR PART OF THE APPLICATION WILL SUCCEED?
18The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondents' adverse treatment of the applicant is based, at least in part, on the applicant’s race, gender, disability or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.
19Where it appears that all or part of an application may have no reasonable prospect of success the Tribunal may determine it is appropriate to hold a “summary hearing” on that issue. The summary hearing gives the applicant an opportunity to more fully explain the allegations contained in the Application and to hear argument from the parties before the Tribunal makes its decision about whether all or part of the Application has no reasonable prospect of success.
20Rule 19A of the Tribunal’s Rules of Procedure sets out specific guidelines for this type of hearing and it is important because the procedures for a summary hearing are slightly different than other types of preliminary hearing issues. Most importantly, the parties are not expected to submit documents or call witnesses to testify for the purpose of a summary hearing.
21Unlike other preliminary matters, which are determined on a “balance of probabilities”, the test the Tribunal applies at a summary hearing is whether an application has “no reasonable prospect of success.” If, after examining the allegations and hearing the parties’ submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not dismiss an application, it will continue in the Tribunal’s process. In some cases, the Tribunal may find that only part of the application will move ahead, while part of it is dismissed.
22There are a number of reasons why the Tribunal may decide to hold a summary hearing. In this case the Tribunal has decided to hold a summary hearing because:
a. it appears that the applicant may be unable to prove that there is a connection between what the respondents are alleged to have done, and the grounds of disability and age cited in the Application. That is, although the applicant may believe that the conduct of the respondents is connected to the ground, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain.
23At a summary hearing, unless there is some clear evidence to the contrary, the Tribunal assumes the facts alleged by the applicant to be true. For example, if an applicant alleges they were fired from their employment or denied a service, the Tribunal will assume this to be true for the purposes of the summary hearing. However, accepting that someone experienced adverse treatment does not include accepting the applicant’s assumptions or belief about why they were treated this way.
24The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s belief that the disadvantageous treatment he experienced arises from discrimination. In order to warrant proceeding to a full hearing of the merits some evidence must exist, which goes beyond the applicant’s feeling or belief that a prohibited ground of discrimination played a role in what he/she experienced. As noted above, the parties will not be submitting evidence for the purposes of the summary hearing portion of the preliminary hearing. However, the applicant should be prepared to explain to the Tribunal what the proposed evidence will be if the Application is allowed to proceed to a hearing on the merits.
25The proposed evidence may come in a variety of forms, either as direct or circumstantial evidence. Circumstantial evidence is evidence arising from the circumstances surrounding the alleged discriminatory treatment that might lead the Tribunal to infer that the alleged disadvantageous treatment was linked to a prohibited ground. However, if the applicant is unable to point to evidence, beyond their own assumptions or belief, an application may be found to have no reasonable prospect of success and be dismissed. The Tribunal is mindful of the fact that in some cases an application should proceed further in the hearing process because the respondent is the party who has control over the evidence by which the applicant might prove his or her case.
26While the primary focus in the summary hearing is on the applicant’s proposed evidence, the respondents’ allegations may also be considered where the facts are not in dispute or where it is plainly obvious that a fact must be true. However, the Tribunal is careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondents have an alternative explanation of the events.
Next Steps AND DIRECTIONS
27The Registrar will schedule a half day summary hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the hearing. Although scheduled for a half day, not all summary hearings require a half day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.
For the Summary Hearing
28The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests available on the Tribunal’s website at www.sjto.gov.on.ca/hrto/.
29No witnesses will be called during the summary hearing but the Tribunal will hear the parties’ arguments about whether all or part of the Application should be dismissed because it has no reasonable chance of success. The applicant will generally proceed first during this summary hearing and must be prepared to address the issues discussed above.
30The 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.
31I am not seized with this matter.
order and next steps
32The Application is not deferred and will continue in the Tribunal’s process.
33The parties shall comply with the instructions set out in paragraph 30, above.
Dated at Toronto, this 27th day of December, 2017.
“Signed by”
Dawn J. Kershaw
Vice-chair