SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: Jit Khassria v. Toronto Police Service, Toronto Police Services Board and Human Rights Tribunal of Ontario
BEFORE: Justices Kiteley, Swinton and Pomerance
COUNSEL: Jit Khassria, for the Applicant
Glen Chu, counsel for the Respondents Toronto Police Service and Toronto Police Services Board
Andrea Cole, counsel for the Human Rights Tribunal of Ontario
HEARD AT TORONTO: November 20, 2012
E N D O R S E M E N T
Pomerance J:
1The Applicant seeks judicial review of a decision of the Human Rights Tribunal of Ontario summarily dismissing his complaint against the Toronto Police Service (“TPS”) and Toronto Police Services Board (“TPS Board”). In his claim, advanced under s.34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), the Applicant alleged that the TPS discriminated against him on the basis of his mental disability and on the basis of race and country of origin. He also alleged that the police threatened him with reprisals for bringing the claim, by stating that they would report that he was paranoid and mentally ill.
2On March 27, 2012 the Tribunal directed that a summary hearing be conducted. The Tribunal directed the Applicant to make argument about why the Application should not be dismissed, in whole or in part, as having no reasonable prospect of success and he directed the Applicant to point to the evidence on which he relied to prove a link between the actions of the Respondents and the grounds cited. On June 5, 2012, the Applicant filed 90 pages of documents that included written submissions, his affidavit and 19 exhibits. The summary hearing was conducted by conference call on July 12, 2012. In a written decision dated July 12, 2012, the Tribunal dismissed the application on the basis that there was no reasonable prospect that the Application would succeed.
Standard of Review
3In Shaw v. Phipps, 2012, ONCA 155 at para. 10 affirming 2010 ONSC 3884, it was held that the reasonableness standard governs review of an Adjudicator’s conclusion on discrimination following a hearing. More recently, this Court applied that same standard when reviewing the refusal of the Tribunal to order an early dismissal based on jurisdiction and the absence of a prime facie case. In City of Toronto v. The Dream Team, 2012 ONSC 3904 at paras. 15-20, the Divisional Court held that the standard was one of reasonableness rather than correctness, “given the task of the Tribunal, the procedural nature of the question decided, and the expertise of the Tribunal in matters of human rights” (see para.20).
4That same standard governs the review of the summary determination made in this case. As was observed in The Dream Team, the factors that command a deferential approach apply equally at the stage of a summary hearing. The summary procedure differs from a full hearing in that it involves a review of the record and asks whether there is a reasonable prospect of success. However, the summary determination requires the application of the very principles at play on a full hearing. The fundamental nature of the adjudication is the same. In both instances, the subject matter falls squarely within the specialized expertise of the Tribunal.
Analysis
5In this case, it was entirely reasonable for the Tribunal to conclude that there was no evidence of discrimination on grounds set out in the Code. The evidence established that the TPS conducted a thorough investigation into the Applicant’s allegations of criminal harassment. While officers perceived that the Applicant was suffering from a mental illness, this observation was shared in the context of the investigation and subsequent review by the Office of the Independent Police Review Director (“OIPRD”). There is no evidence that the observation was offered for discriminatory purposes or that it resulted in discrimination against the Applicant. To the contrary, as noted by the Tribunal, the TPS conducted a detailed investigation of the applicant’s complaints notwithstanding its concern about the validity of his complaints.
6Similarly, it was reasonable for the Tribunal to conclude that there was no evidence of discrimination on the basis of the Applicant’s race, country of origin or ethnic origin, and that there was no evidence of the Applicant having been threatened with reprisals as a result of making his complaint.
7The Adjudicator provided thorough and careful reasons in support of his conclusion. While certain aspects of the Applicant’s case were not expressly mentioned, the law does not require that every document or every item of evidence be exhaustively canvassed. It is apparent from the reasons that the Adjudicator reviewed and considered the whole of the record, including the specific evidence and representations of the Applicant.
8Finally, there is no basis for intervention on grounds of procedural fairness. The Applicant was given full opportunity to make factual and legal representations before the Tribunal. He filed 90 pages of documents in an effort to prove a link between the actions of the Respondents and the grounds of discrimination he cited. The Applicant was not given the opportunity to cross-examine witnesses. However, this is consistent with the nature and purpose of a summary hearing. It is a screening mechanism designed to determine whether a full evidentiary hearing is warranted.
9The Tribunal applied the principles set out by the Tribunal in the case of Dabic v. Windsor Police Service 2010 HRTO 1994 at paras. 8-10. It concluded that, taking the Applicant’s case at its highest, there was no reasonable prospect that violations of the Code could be made out. There was no evidence either in the Applicant’s possession, or reasonably available to him, that could establish an infringement of the Code. Implicit in this finding is a conclusion that cross-examination would not have assisted the Applicant in making out his claim. This is a reasonable conclusion in light of the record in this case. There was accordingly no basis on which to permit the examination of witnesses.
10The Applicant has raised the issue of actual or apprehended bias. Having reviewed the extensive documentation filed by the Applicant before the Tribunal and the reasons for decision, we are not persuaded that there has been actual or apprehended bias. The Tribunal conducted a thorough and impartial assessment of the Applicant’s claims, in the proper exercise of its statutory authority. The Applicant disagrees with the reasons and with the decision but that does not establish actual or apprehended bias.
11In all of these circumstances, the Application for Judicial Review must be dismissed.
Costs
12At the conclusion of the hearing, we heard from the parties as to costs. Counsel for the Tribunal advised that she would not be seeking costs in the event that the Applicant was unsuccessful. Counsel for the TPS and TPS Board advised that he would be seeking costs in the amount of $8,402.00. We find that costs should be awarded, but conclude that a more modest award is appropriate given the circumstances of the Applicant.
ORDER TO GO AS FOLLOWS:
13The Application for Judicial Review of the decision by the Human Rights Tribunal of Ontario dated July 12, 2012 is dismissed. The Applicant shall pay costs to the Respondents TPS and TPS Board fixed in the total amount of $1,500.
Pomerance J.
Kiteley J.
Swinton J.
DATE: November 22, 2012