COURT FILE NO.: 327/08

DATE: 20090430

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Crane, SWINTON and karakatsanis JJ.

B E T W E E N:

POLICE CONSTABLE KEVIN COTE, POLICE CONSTABLE DAVID LENCHUK AND STAFF SERGEANT STAN BELZA

Applicants

• and -

ONTARIO HUMAN RIGHTS COMMISSION, RANDY KING,

TORONTO POLICE SERVICES BOARD AND WILLIAM BLAIR, CHIEF OF POLICE, TORONTO POLICE SERVICE

Respondents

Joanne E. Mulcahy, for the Applicants

Anthony D. Griffin, for the Ontario Human Rights Commission

Rosanne Giulietti, for the Toronto Police Services Board

Kalli Y. Chapman and Sie-Wing Khow, for the Chief of Police

Paul J.J. Cavalluzzo and Jo-Anne Pickel, for the Human Rights Tribunal of Ontario

Leslie M. McIntosh, for the Intervenor, the Attorney General of Ontario

HEARD at Toronto: April 7, 2009

SWINTON J.:

Overview

1The applicant police officers seek judicial review of a decision of the Human Rights Tribunal of Ontario (the “Tribunal”) dated June 4, 2008, which ordered the Toronto Police Services Board (“TPSB”) and/or the Chief of Police to make disclosure and production of certain documents in their personnel files.

2The Ontario Human Rights Commission (“the Commission”) and the Tribunal submitted that the application should be dismissed on the grounds of mootness. After hearing oral argument, this Court refused to hear further submissions in the application because of mootness and indicated that reasons for this decision would follow. These are the reasons for that decision.

Background

3In October, 2004, the respondent Randy King filed a complaint under the Ontario Human Rights Code, R.S.O. 1990, c. H.19 against the Toronto Police Service (“TPS”), alleging that he had experienced discrimination on the basis of sexual orientation because of his treatment by named officers of the TPS. Constables Cote and Lenchuk arrested him for being intoxicated in a public place contrary to the Liquor Licence Act, while Staff Sergeant Belza dealt with him at the station where he was booked and detained in a holding cell.

4On December 18, 2007, the Commission referred the complaint to the Tribunal pursuant to s. 33(6) of the Code. At that time, the provision allowed the Commission to refer a matter to the Tribunal if a person refused to comply with a request for production of documents or things.

5In March, 2008, before filing a hearing brief, the Commission filed a request with the Tribunal for an order for production of materials from the TPSB and/or the Chief of Police. Among the information requested were the complete personnel files for the three applicant officers.

6After receiving submissions from the parties, the Chief of Police and the officers, the Tribunal gave an interim decision on June 4, 2008, ordering the TPSB and/or the Chief of Police to make disclosure to the Commission and to the complainant of documents in the officers’ personnel files or from any other location that relate to the complaint in the proceedings or that relate to other complaints or allegations of sexual orientation discrimination against the officers. In coming to its decision, the Tribunal applied the test of “arguable relevance”.

7The police officers then launched this application for judicial review in June 2008. They also requested that the Tribunal stay the part of the production order requiring disclosure from their employment records.

8In a further interim decision dated August 19, 2008, the Tribunal denied the request for a stay and ordered the TPSB and the Chief of Police to comply with the order for production by August 26, 2008. In the reasons, the Tribunal rejected an argument from the applicants that their application for judicial review would be moot if the stay were not granted. The Tribunal observed that if the Divisional Court ruled the documents at issue were not arguably relevant, or the officers’ privacy interests outweighed the probative value of the documents, this would have an impact on determinations of admissibility at a hearing (August Reasons, para. 21).

9By letters dated August 26, 2008, the TPSB and the Chief of Police indicated that no responsive records existed. There are no records of other complaints or allegations of sexual orientation discrimination against the applicants.

10As a result of this information, the Commission and the Tribunal argued that the application had become moot.

The Law Relating to Mootness

11Judicial review is a discretionary remedy. One of the grounds on which a court may decline an application for judicial review is mootness. As the Supreme Court of Canada said in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at para. 15:

The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case.

12The doctrine of mootness requires a two step analysis. First, the court must decide if “the required tangible and concrete dispute has disappeared and the issues have become academic”. Second, if that is the case and there is no longer a live controversy affecting the rights of the parties, the court must decide whether to exercise its discretion to hear the case (para. 16).

13The relevant criteria to be considered in determining whether to hear a matter that is moot are the existence of an adversarial relationship between the parties, the need to promote economy of judicial resources, and a consideration of the proper role of the court (paras. 31, 34 and 40).

Analysis

14In this case, the applicants, supported by the Chief of Police and the TPSB, submit that there is an ongoing live controversy. While no responsive documents have been found to date, the applicants submit that the order is ongoing. The hearing before the Tribunal is scheduled to begin in June, 2009, and should there be further documents relating to complaints or allegations of discrimination, they would have to be produced.

15In addition, the applicants point out that there has been a further request for an order for production made by the Commission in relation to this complaint, this time with respect to personnel records pertaining to Constable Nigel Thomas. A decision on that request has not yet been made.

16The Ontario Court of Appeal has held that the relevance of a court’s pronouncement to future litigation is not sufficient to make a dispute a live controversy. As Doherty J.A. stated in Tamil Co-operative Homes Ltd. v. Arulappah (2000), 49 O.R. (3d) 566 (C.A.) at para. 15:

The mere fact that a party may at some future time resort to the same process which is the subject of the proceedings before the court does not give that party a direct or indirect interest in the litigation so as to give continued life to the controversy which precipitated the litigation.

17In my view, there is no live controversy at this time between the applicants and the respondents. The TPSB and the Chief of Police have complied with the Tribunal’s production order. No documents responsive to the order for production have been found. Therefore, there is, at this time, no live dispute between the applicant police officers and the respondents. Any relief that could be given in this application would have no practical effect with respect to the applicants.

18While the applicants submit that the TPS and Constable Thomas have a continuing interest in the outcome of this application, neither is an applicant in this proceeding. Therefore, the application is moot.

19Despite the mootness of the application, the Court has the discretion to hear it. However, this is not a proper case in which to exercise that discretion. The Supreme Court of Canada and the Ontario Court of Appeal have both held that where the legal issue raised in a moot case is one which will recur in the normal flow of litigation involving real disputes between parties, it is best to determine the issue in a genuine adversarial context (Borowski, supra, at para. 36; Tamil Co-operative, supra at para. 20).

20It is evident that the issues raised in this application will arise in other cases – for example, that of Constable Thomas. Thus, issues relating to production from police personnel records are not evasive of review.

21Moreover, a court should not proceed to hear a moot case where proceeding may be viewed as intruding into the role of the legislative or executive branches. As the Supreme Court said in Borowski, supra at para. 40, the court should “demonstrate a measure of awareness of its proper law-making function”.

22Here, it is particularly inappropriate to determine this application because there have been developments in the jurisprudence since the interim decision under review. Following the release of the decision in issue here, the Supreme Court of Canada released its decision in R. v. McNeil, 2009 SCC 3, [2009] S.C.J. No. 3, clarifying the law applicable to the disclosure and production of police disciplinary records in a criminal case (see, for example, paras. 43-46).

23The Tribunal has issued two further decisions involving production of police officers’ personnel records in light of McNeil: Washington v. Toronto Police Services Board, 2009 HRTO 217 and Goodridge v. Toronto Police Services Board, 2009 HRTO 218. Both of these cases involved requests for production of material from police officers’ personnel records relating to complaints of discrimination against them.

24In Washington, the Tribunal discussed the need to balance the prejudicial effect of disclosure of prior complaints of discrimination against the probative value and adopted an “O’Connor-type procedure”. This requires review of the records in dispute by the Tribunal prior to disclosure to the requesting party, so that the Tribunal can determine arguable relevance and assess the privacy concerns of police officers and third parties who would be affected by disclosure (Washington, at para. 32). The same approach was adopted in Goodridge and is being used in the request for production of Constable Thomas’ records in the present complaint.

25In light of these jurisprudential developments, there is no compelling public interest reason for this Court to exercise its discretion and hear this application. Issues relating to production from police personnel records should and will be determined in a genuine adversarial context.

Conclusion

26While the Court refused to proceed with the application for judicial review, the application was not dismissed outright. The applicants had argued that the production order is continuing and, therefore, may give rise to an obligation to produce records in the future before the Tribunal hearing scheduled for June 16, 2009. As that new requirement to disclose may raise a live issue, the Court decided to adjourn the application.

27The endorsement given on April 7, 2009 stated that the application was adjourned to a date to be set by the Registrar. If the application is not brought back on by July 31, 2009, it shall be dismissed, unless the date has been extended by order of the Administrative Judge of the Divisional Court.

Swinton J.

Crane J.

Karakatsanis J.