Court File and Parties
COURT FILE NO.: 264/08
DATE: 20080717
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
TORONTO POLICE SERVICES BOARD
Applicant
- and -
ONTARIO HUMAN RIGHTS COMMISSION and ROSHAN FERNANDO
Respondents
Michele Wright, for the Applicant
Brian Smith, for the Ontario Human Rights Commission
HEARD at Toronto: July 17, 2008
Oral Reasons for Judgment
LAX J.: (Orally)
[1] I am satisfied that the applicant has satisfied the three-part test for the granting of a stay. On the record before me, there is a serious question as to whether the Board was accorded procedural fairness when the Commission decided under s.33(6) that the Board had refused to comply with its production request and the complaint was referred to the Tribunal.
[2] In exercising its limited discretion under s.34(1)(d) of the Code, the Commission had no information from the complainant to explain the more than six month delay in filing the complaint. The basis on which the Commission exercised its discretion to decide to deal with the complaint is therefore unknown. The Board was given no opportunity to address potential prejudice arising from the delay. This also raises a serious issue.
[3] The Commission is bringing a motion before the Tribunal to compel the Board to produce the documents that the Board alleges it has no obligation to produce until it has been provided with an amended complaint so that it knows the case it has to meet. If the Tribunal is permitted to proceed, the essential issues in the judicial review application would be rendered moot. This amounts to irreparable harm.
[4] On the balance of convenience, the respondent submits that no practical purpose would be served by the judicial review application because the human rights legislative regime is in a transitional period and since June 30th, 2008, the Commission no longer has responsibility for deciding whether to refer new complaints to the Tribunal. However, this is not a new complaint. There are transitional provisions dealing with continuing complaints and it is speculative to know what the complainant may decide to do or how the Commission will decide to address this complaint once the judicial review application is disposed of.
[5] I have considered the recent decision of this Court in Jeremiah v. Ontario Human Rights Commission, but do not find it assists me in resolving the issues before me. In my view, there is a serious question raised that the Tribunal lacks jurisdiction and the balance therefore favours the applicant.
[6] I am advised that the Board has perfected the judicial review application. The parties consent to an expedited hearing and I so direct. Costs are reserved to the panel hearing the judicial review application.
LAX J.
Date of Reasons for Judgment: July 17, 2008
Date of Release: July 22, 2008
COURT FILE NO.: 264/08
DATE: 20080717
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
TORONTO POLICE SERVICES BOARD
Applicant
- and -
ONTARIO HUMAN RIGHTS COMMISSION and ROSHAN FERNANDO
Respondents
ORAL REASONS FOR JUDGMENT
LAX J.
Date of Reasons for Judgment: July 17, 2008
Date of Release: July 22, 2008