Aroda v. Ontario Human Rights Commission, 2010 ONSC 419

CITATION: Aroda v. Ontario Human Rights Commission, 2010 ONSC 419

DIVISIONAL COURT FILE NO.: 215/09

DATE: 20100202

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, LEDERMAN AND SACHS JJ.

B E T W E E N:

Sanjee Aroda, David Wilson, Richard Stavintsky, Nicholas Morris, Peter Shaw, Thomas Hockney, Lorne Bragg and Clayton Campbell

Applicants

– and –

Ontario Human Rights Commission, Lloyd Washington, Julian Fantino, Toronto Police Services Board and Bill Blair, Chief of Police

Respondents

– and –

toronto police association and Attorney General for Ontario

Intervenors

Kevin McGivney/Naomi E. Calla, for the Applicants and Chief of Police

Margaret Leighton/James Schneider, for the Respondent Human Rights Tribunal of Ontario

Anthony D. Griffin, for the Respondent Ontario Human Rights Commission

David B. Butt, for the Toronto Police Association

Leslie McIntosh, for the Attorney General for Ontario

HEARD at Toronto: January 13, 2010

REASONS FOR JUDGMENT

THE COURT:

Nature of Proceeding

1The applicant police officers seek judicial review of two interlocutory decisions of the Human Rights Tribunal of Ontario (the “Tribunal”) concerning documentary disclosure and production. Both decisions were made with respect to a complaint to the Ontario Human Rights Commission by Lloyd Washington. Mr. Washington filed a complaint with the Commission, alleging discrimination on the basis of colour, creed, place of origin and race in the way that he had been treated by a number of police officers during several incidents with the police that took place between June 24, 2002 and June 4, 2004. Eight police officers (the applicants), the Toronto Police Services Board and the Chief of Police were named as respondents to the complaint.

2As part of its investigation of the complaint, the Commission asked the respondents to produce any records that they had concerning any prior complaints that had been made against the applicant police officers where similar allegations had been made. The request was not limited to situations where disciplinary action had been taken against the officers as a result of the complaints.

3The respondents did not comply with the Commission’s request for production and the Commission referred the matter to the Tribunal. On February 27, 2009 the Tribunal ordered that the Chief of Police deliver all records of complaints against the officers alleging racial profiling, racial discrimination and/or racial harassment, and any discipline imposed as a result of any such complaints, to the Tribunal for review. Upon review of the responsive records, on June 16, 2009, the Tribunal released a second decision, ordering that two of these records be produced to all of the parties on condition that the record be used only by the parties and not disclosed to anyone who does not have a direct interest in the proceeding. The applicants seek judicial review of these decisions.

4At issue are records of complaints that have not been evaluated or processed to the point where a charge has been laid under the Police Services Act, R.S.O. 1990, c.P.15.(“PSA”)

5The panel called upon the applicants and the Intervenors, the Toronto Police Association (the “TPA”) and the Attorney General, to address first the question of prematurity in the bringing of the application. Upon the conclusion of argument, this Court quashed the application, for reasons to be delivered. These are the Court’s reasons.

Prematurity

6It is well settled that this Court will quash applications for judicial review of interlocutory decisions of administrative tribunals, absent the showing of exceptional or extraordinary circumstances demonstrating that the application must be heard.

7Callaghan C.J.O.C. expressed the Court’s approach and the reasoning for it in Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 ON SCDC 3430, 11 O.R. (3d) 798:

“This court has a discretion to exercise in matters of this nature. It can refuse to hear the merits of such an application if it considers it appropriate to do so. Where the application is brought prematurely, as alleged by the Attorney General in these proceedings, it has been the approach of the court to quash the application, absent the showing of exceptional or extraordinary circumstances demonstrating that the application must be heard: see Latif v. Ontario (Hospital Resources Commission) (an unreported decision of this court of March 11, 1992; leave to appeal was denied on June 8, 1992 by the Ontario Court of Appeal) and Hancock v. Ontario (Human Rights Commission) (an unreported decision of this court of November 10, 1992).

These decisions follow a long line of authority which has indicted the need to avoid a piecemeal approach to judicial review of administrative action. The board of inquiry in this case has jurisdiction to entertain and determine any of the issues that have been so ably advanced by Ms. Roberts. This includes her argument that bias has tainted the appointment of the board of inquiry. The board of inquiry also, of course, has the jurisdiction to consider the allegation of delay as it has affected these proceedings.

For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion. In particular, at that time, these applicants will have a full right of appeal pursuant to s. 42 of the Human Rights Code, R.S.O. 1990, c.H.19.

While there were constitutional issues raised in the course of this application, I should also point out that this court has followed a policy of not ruling on such issues unless it is absolutely necessary to do so. Whether or not those issues will continue to be of interest at the time of an appeal to this court will depend on the outcome before the board. It may well be that issues foreseen at this time will not exist at the termination of the proceedings. Furthermore, as has been said in many cases in relation to other boards and tribunals, it is preferable to consider issues such as [sic] those raised on this application against the backdrop of a full record, including a reasoned decision by the board or tribunal. Obviously, this is usually available to the court only after the administrative body has conducted a full hearing.”

Applicants’ Position

8The applicants argue that the recent decision of the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3 impacts significantly on the proper use of police records by the Tribunal and this Court should set aside the Orders below and give the Tribunal guidance in this area of the law.

9The applicants submit that the issues have importance well beyond this case because the appropriate use of police records arises repeatedly. Further, they point to the difficulty in obtaining judicial review of interim orders as noted by the Court in McNeil, supra. That feature, combined with the fact that the issues are often moot by the time the proceedings below are concluded, leads to the conclusion that there is not likely to be an early opportunity to have the issues determined by this Court in the context of McNeil, supra. In the meantime there will be many proceedings before the Tribunal without the intervention and guidance of this Court.

Intervenors’ Positions

10The Intervenor, T.P.A., adopts the submissions of the applicants, adds that this is the first case to apply McNeil, supra, to human rights proceedings, and submits that production of such records will be routinely sought in the future.

11The Intervenor also argues that there must be an evidentiary basis to support the order for production – and that here, there was none.

12The Intervenor, Attorney General, submits that the production of unsubstantiated allegations is prohibited by s. 69(9) and 80 of the PSA. The Commission presents a contrary interpretation of those provisions and submits that they do not prohibit disclosure during the course of a human rights investigation.

Analysis

13We acknowledge that this Court has the power to hear applications where the issues are moot, as was the case in McNeil, supra.

14However, we also note the strong privative protections contained in section 45.8 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended and the fact that the Tribunal is dealing with privacy issues on a wide front all the time – e.g. concerning employment records, health records, therapeutic records and child welfare records. It would be disruptive of its work and interfere with the expeditious disposition of human rights complaints if interim orders for production and disclosure could be the subject of judicial review.

15It is argued that once the documents are produced, the “cat is out of the bag”, with the likely infringement of privacy rights, which infringement cannot be reversed. Therefore, this Court should reverse the Orders below to give guidance to the Tribunal on the proper applications of O’Connor and McNeil in the context of the documents at issue here.

16It is important to note that in this case the Tribunal did apply the O’Connor principles and procedures and did take the privacy rights of the applicants into consideration. While doing so, the Tribunal remarked that the application of O’Connor procedures was a matter of discretion. This comment was, in effect, by way of obiter dicta. In a compelling argument, the applicants and the intervenor, the TPA, vigorously challenge that obiter dicta. However, in the instant case, the Tribunal did in fact apply O’Connor. Any possible challenge to an interim order in this context should await a situation where a tribunal refuses to apply O’Connor and gives reasons for declining to do so.

17The applicants further submit that the “record” will never be more complete than it is now on the issue of production of records of mere complaints. This is not necessarily so. There may be some relevance or utility in the records in the development of similar fact evidence. Whether this is so or not will depend on the facts of the particular case. Furthermore, the fact that the records are ordered produced does not mean that they will be admitted into evidence.

Conclusion

18In our view, all of the issues raised should be dealt with in the context of a full record.

19We return to the words of Callaghan C.J.O.C.: there are no exceptional or extraordinary circumstances demonstrating that this application must be heard.

20The application is quashed.

21Given the issues raised and that the applicants were seeking guidance as to how McNeil, supra would be applied in future cases, there will be no order as to costs.

Ferrier J.

Lederman J.

Sachs J.