COURT FILE NO.: 327/05

DATE: 20060222

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O'DRISCOLL, CHAPNIK AND SWINTON JJ.

B E T W E E N:

KERLAN MCLEAN Applicant

• and -

THE ONTARIO HUMAN RIGHTS COMMISSION and PEEL REGIONAL POLICE SERVICES BOARD Respondents

Selwyn Pieters, for the Applicant Amyn Hadibhai, for the Respondent, Ontario Human Rights Commission Michael A. Hines, for the Respondent, Peel Regional Police Services Board

HEARD at Toronto: February 22, 2006

O'DRISCOLL J.: (Orally)

1The applicant brings an application for judicial review to this Court, launched on August 18, 2005, and seeks, in respect of the Ontario Human Rights Commission's (Commission) decision, dated March 16, 2005:

"(a) an Order setting aside and quashing the decision of the Ontario Human Rights Commission dated March 16, 2005, pursuant to section 2 and section 6(1) of the Judicial Review Procedures [sic] Act and referring the matter directly to the Investigation Branch of the Human Rights Commission for a professional unbiased investigation as ordered by the court.

(b) its costs of this application; and

(c) such further and other relief as the applicant may request and this Honourable Court may deem just."

The grounds for the application are thereafter set out in the Notice of Application.

THE BACKGROUND

1. The applicant was a police constable with the Peel Regional Police Services Board (PRPSB) between April, 1989 and April, 2002. On April 30, 2002, the applicant filed a complaint with the Commission alleging discrimination by PRBSB based on his race, colour and place of origin.

2. The applicant complained to the Commission that the PRPSB discriminated against him throughout his career and that he was held to a "more onerous standard of performance" than white police officers. The applicant alleged that there was "constructive and discriminatory dismissal" of the applicant's employment in April, 2002.

3. The applicant's employment ended as a result of an agreement whereby the PRPSB withdrew charges under the Police Services Act (PSA) against him in consideration for the applicant's resignation as a member of the Peel Regional Police Service.

4. The Peel Regional Police Association (Police Association), the applicant's bargaining agent, confirmed that the complainant, Mr. McLean, was advised to seek independent legal advice. The Police Association also confirmed that the applicant told the Police Association's representative that he had obtained such advice.

5. Mr. McLean stated in his resignation letter that he "enjoyed his tenure" with the police service. Pursuant to the Collective Agreement, Mr. McLean had an opportunity to request that the Chief of Police withdraw his resignation within forty-eight (48) hours of tendering his resignation. Mr. McLean did not do so.

6. The PSA charges pending against the applicant at the time of his resignation were not the first set of charges against Mr. McLean. The applicant has had a number of charges laid against him over the course of his career. These charges related to: the loss of evidence, failure to provide disclosures to the Crown, failure to submit reports, notes, documents and court packages required for prosecution, failure to appear at paid duty assignment and failure to arrest and improper arrest. These charges occurred at different times covering many years during the span of his career with the Peel Regional Police Service.

7. In response to the Human Rights complaint, the PRPSB provided the following summary of the applicant's disciplinary record:

• Charged with twelve (12) counts of misconduct in 1994;
• Transferred to the Court Bureau under restricted duty from 1995 to 1997;
• Pled guilty to five (5) counts of neglect of duty in November, 1997;
• Received two (2) discipline reports and was counselled in December, 1998;
• Found guilty of neglect of duty in April, 1999;
• Received three (3) discipline reports in May, June and September, 1999;
• Found guilty of three (3) counts of neglect of duty in December, 1999;
• Found guilty of two (2) counts of neglect of duty on March 7, 2001;
• Participation in paid duty program restricted, September, 2001;
• Received two (2) discipline reports in September, 2001;
• Suspended from participation in paid duty program, October, 2001;
• Charged with two (2) counts of neglect of duty in October, 2001 (resolved via agreement with applicant as noted above);
• A further charge of neglect of duty was pending as of the date of the applicant's Notice of Resignation.

8. In the course of a March, 2001 disciplinary hearing, the Hearing Officer observed that the applicant's discipline record at that point was one of the worst he had ever seen and that the next step in progressive discipline would be dismissal.

9. After tendering his resignation, Mr. McLean was unsuccessful in securing a position with the Ontario Provincial Police. Mr. McLean alleges that his failure to secure employment was the result of actions by the Peel Regional Police Service. The PRP Service submitted that the applicant signed an authorization allowing disclosure of his personnel file. The evidence also indicated that it was customary for police services to do a thorough background check before hiring potential candidates. As a result, Mr. McLean's disciplinary records came to the attention of the Ontario Provincial Police.

10. Mr. McLean sought to rescind his resignation from the PRPSB after failing to secure employment with the Ontario Provincial Police. On or about April 15, 2002, the PRPSB refused reinstatement and refused to rescind his resignation. The applicant filed his complaint with the Commission on April 30, 2002.

11. On December 18, 2002, the Commission decided"not to deal with" Mr. McLean's complaint. Section 34(1)(b) of the Code permits the Commission not to deal with the complaint if it appears to the Commission that the complaint is "trivial, frivolous, vexatious or made in bad faith". The Commission said:

"The Commission has exercised its discretion under subsection 34(1)(b) of the Code and has decided not to deal with this complaint which alleges discrimination in employment because of colour, place of origin and race for the following reasons:

1. The evidence indicates that the complainant, represented by his association and after receiving advice from legal counsel, submitted his resignation to the corporate respondent pursuant to an agreement between the two parties.

2. The evidence indicates that in consideration for the resignation, the respondent agreed to withdraw a number of outstanding Police Services Act charges against the complainant.

3. The evidence indicates that the complainant had a time-limited opportunity to withdraw his resignation but did not do so.

4. The evidence indicates that the complainant sought to rescind his resignation with the respondent following his failure to secure employment with the Ontario Provincial Police.

5. The evidence indicates that it was only after his failure to gain reinstatement with the respondent that he made allegations that the respondent had infringed his human rights violations.

6. The evidence indicates that the complainant has never previously made any allegation of human rights violations as provided for by the PSA, the board policies and the collective agreement. In his resignation letter, the complainant indicated that he "enjoyed his tenure" with the respondent.

7. Given the totality of the evidence, the complaint can be characterized as vexatious and made in bad faith in that it was filed only in reaction to the respondent's refusal to reinstate his employment."

For the above reasons, the Commission considers that this complaint falls within the provisions of subsection 34(1)(b) of the Code.

Approved and Signed by the Chief Commissioner, Keith C. Norton, Q.C., B.A., LL.B. and dated December 18, 2002."

12. On January 16, 2003, Mr. McLean requested reconsideration of the Commission's decision and provided almost 300 pages of submissions and documents for the Commission's consideration on the reconsideration application.

13. On March 16, 2005, the Commission, while acknowledging its unfettered discretion to reverse its initial decision, decided to uphold its original decision and concluded that the Commission remained of the view that the complaint failed to establish a reasonable basis upon which it could be maintained and the complaint can be characterized as vexatious.

14. The Commission said in its reasons on reconsideration:

"Whereas pursuant to Section 37 of the Human Rights Code the Commission has an unfettered discretion to reverse its original decision;

and whereas the Commission has reviewed its original decision and reasons, and has considered the matters raised in the application for reconsideration;

pursuant to Section 37 of the Code, the Commission has decided to uphold its original decision pursuant to section 34 of the Code for the following reasons:

1. The Commission remains of the view that the evidence indicates that the complainant was represented by his association and after receiving advice from the association's legal counsel submitted his resignation to the corporate respondent, pursuant to an agreement between the parties.

2. The Commission remains of the view that the evidence indicates that in consideration for the complainant's resignation, the respondent agreed to withdraw a number of outstanding Police Services Act charges against the complainant.

3. The Commission remains of the view that evidence indicates that only after the complainant's request to be reinstated was denied that he alleged that the respondent had infringed his rights under the Code.

4. The Commission remains of the view that the complaint fails to establish a reasonable basis upon which it can be maintained and therefore it can be characterized as vexatious.

Accordingly, the Commission remains of the view that this complaint falls within the provisions of subsection 34(1)(b) of the Code.

Approved and Signed by Keith G. Norton, Q.C., B.A., LL.B., Chief Commissioner, dated March 16, 2005."

15. It is to be observed that while all of the various disciplinary convictions imposed upon the applicant throughout his career could have been appealed by him to the Ontario Civilian Commission on Police Services (OCCPS), in fact, none ever were.

16. Moreover, while all of the alleged acts of discrimination to which the applicant claims to have been subjected could have been the subject of a formal internal complaint system within the Peel Regional Police Service, in fact, none ever were.

17. The standard of review that is applicable on this application is one of patently unreasonable. As this Court said in Gismondi v. Ontario Human Rights Commission et al., 169 O.A.C. 62, 69:

"We are satisfied, however, that the Pushpanathan approach leads to the conclusion that a standard of patent unreasonableness is the appropriate standard of review with respect to discretionary decisions under ss.34, 36 and 37 of the Code. ..."

18. What does the phrase "patently unreasonable" mean? In Canada (Attorney General) v. Public Service Alliance [1993] 1 S.C.R. 947, Cory J. said:

"A patently unreasonable decision is one that is "evidently not in accordance with reason" or "clearly irrational".

19. This Court has also held in Hassaram v. Ontario (Human Rights Commission) [2005] O.J. No. 29, at paragraph [29] that "sections 34, 36 and 37 of the Code give the Commission discretionary powers that the Court should not interfere with or reverse a decision because it might have arrived at a different conclusion."

20. In Way v. Ontario (Human Rights Commission), [2003] O.J. No. 5099 (Div. Ct.), paragraph [14], it was said that s.34(1)(b) of the Code permits the Commission to "not deal with" a complaint where "it appears to the Commission" that the subject matter of the complaint is "trivial, frivolous, vexatious or made in bad faith." In Way, this Court has accepted with respect to s.34(1)(b) that "cases have been held to be vexatious because they were instituted without any reasonable ground."

21. This Court has said in Brome v. Ontario Human Rights Commission (1999), 35 C.H.R.R. D/469 (Div. Ct.), leave to appeal denied: [1999] O.J. No. 2537 (C.A.);

18"The combined effect provided by the legislature in s.34 is to enable the Commission to sift through the complaints and remove a number of them from the time-consuming process of investigation. The power to bar certain complaints from proceeding further, regardless of their merit, reflects the legislature's overriding commitment to considerations of administrative efficiency and to specify policy objectives. The Commission is not under a public duty to proceed with every complaint; it has a discretion which i[t] may exercise depending upon the circumstances."

22. The application of the patently unreasonableness standard to the Commission's discretionary decisions reflects the deference that is owed to the Commission with respect to matters pertaining to its role and function under the Code, having regard to the Commission's well recognized expertise in fact-finding and processing complaints under the Code.

23. The Commission also had evidence before it that the applicant resigned his position in an agreement to avoid further charges and that his complaint was brought only after failing to be hired by the Ontario Provincial Police and only after failing to convince the PRPSB to rescind his resignation.

24. Given the information before the Commission, it cannot be said that the Commission's decisions were patently unreasonable. That is, that its decision to "not deal with" the complaint, given its particular facts, was not "clearly irrational".

25. Given the complainant's extraordinary disciplinary record, which was not in dispute in these proceedings, it was not patently unreasonable for the Commission to conclude that there was no reasonable prospect of proving discrimination on the part of the PRPSB. In other words, the decision that the complaint was vexatious was not patently unreasonable.

26. For these reasons, the application for judicial review is dismissed.

27. With the concurrence of my colleagues, I have endorsed the back of the Application Record as follows: "This application is dismissed for the oral/recorded reasons of even date. Counsel for each respondent asks for costs at $750.00. Counsel for the applicant submits that this application, although about an individual, as far as costs are concerned, should be viewed as "public interest litigation". In our view, the submissions of counsel for the respondents regarding costs are reasonable. The applicant to pay $750.00 costs to each respondent within 30 days of this date."

O'DRISCOLL J.

CHAPNIK J.

SWINTON J.

Date of Reasons for Judgment: February 22, 2006

Date of Release: March 30, 2006

COURT FILE NO.: 327/05

DATE: 20060222

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT