Hay v. Human Rights Tribunal of Ontario et al.; Ontario Human Rights Commission, Intervenor Council of the Tyendinaga First Nation v. Human Rights Tribunal of Ontario et al.

[Indexed as: Hay v. Ontario (Human Rights Tribunal)]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Then, Dambrot and MacKinnon JJ.

July 3, 2014

121 O.R. (3d) 103 | 2014 ONSC 2858

Case Summary

Human rights — Discrimination — Applicant's appointment as First Nations constable suspended and then terminated after he publicly criticized Ontario Provincial Police — Human rights tribunal reasonably finding that exclusion of First Nations constables from procedural protections of Police Services Act was not discriminatory and that race was not factor in applicant's termination — Tribunal reasonably finding that termination was not act of reprisal under s. 8 of Human Rights Code — Human Rights Code, R.S.O. 1990, c. H.19, s. 8 — Police Services Act, R.S.O. 1990, c. P.15.

Human rights — Procedural fairness — Applicant filing human rights complaint alleging that termination of his appointment as First Nations constable by commissioner of Ontario Provincial Police was discriminatory — Tribunal dismissing complaint and making incidental finding that Council of Tyendinaga First Nation was applicant's employer — Council not entitled to notice of hearing by tribunal as it was not affected by tribunal's decision or reasons.

The applicant was a member of the Mohawks of the Bay of Quinte. After being recruited for the position by the Council of the Tyendinaga First Nation (the "council"), he was appointed as a First Nations constable by the commissioner of the Ontario Provincial Police ("OPP") pursuant to s. 54(1) of the Police Services Act (the "PSA"). When the applicant publicly made statements criticizing the OPP, his appointment was first suspended and then terminated by the commissioner. The applicant filed a complaint under the Human Rights Code alleging that his race, ancestry and ethnic origin were factors in the decision to suspend and ultimately terminate his appointment and that the termination was an act of reprisal contrary to s. 8 of the Code. He also alleged that the exclusion of First Nations constables from the PSA is discriminatory. The vice-chair dismissed the complaint. She considered the identity of the applicant's employer to be relevant to the issue of whether the applicant's exclusion from the PSA discriminated against him, and found that the council (a non-party to the complaint) was his employer. The applicant applied for judicial review of the decision dismissing his complaint. The council applied for judicial review of the decision that it was the applicant's employer, complaining that it was directly affected by that decision and was entitled to notice of the hearing.

Held, the applications should be dismissed.

The vice-chair reasonably concluded that the exclusion of First Nations constables from the PSA is not discriminatory, but rather that First Nations constables were excluded out of respect for the self-government of First Nations [page104] communities. She reasonably concluded that the lack of procedural protections available to the applicant resulted not from his exclusion from the PSA but from the council's failure to develop an appropriate process for dealing with complaints against and disciplining First Nations constables and its failure to act as the applicant's employer. She reasonably concluded that the applicant had failed to establish that the decisions to suspend and terminate his appointment were discriminatory. The suspension allowed the OPP to investigate the applicant's conduct. The applicant was terminated because he made public comments about the OPP which fostered disrespect for police officers and potentially placed them at risk, and interfered with the co-operation necessary for police services to work together. The applicant's public comments were not an assertion of his human rights under the Code. The tribunal reasonably found that his termination was not a "reprisal" for those statements within the meaning of s. 8 of the Code.

The vice-chair's decision had no effect on the council. It was nothing more than a decision that the applicant did not suffer discrimination. Nor could her reasons have any effect on the council. They did not directly determine any of the rights or obligations of the council, and did not require the council to take any action. Her findings were not binding on any other court, adjudicator or even the tribunal. Accordingly, the council was not entitled to notice of the hearing. In any event, the council was aware that the OPP was taking the position that the council was the applicant's employer, and chose to stand silent. It could not now resile from that position and force a new hearing of the matter. Finally, the council's position on the employment issue was known to the vice-chair and considered by her.

Quebec (Attorney General) v. A., [2013] 1 S.C.R. 61, [2013] S.C.J. No. 5, 2013 SCC 5, 2013EXP-288, J.E. 2013-141, EYB 2013-216977, 439 N.R. 1, [2013] W.D.F.L. 746, [2013] W.D.F.L. 814, [2013] W.D.F.L. 776, 21 R.F.L. (7th) 1, 354 D.L.R. (4th) 191; R. v. Kapp, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, 2008 SCC 41, 175 C.R.R. (2d) 185, EYB 2008-135098, J.E. 2008-1323, [2008] 8 W.W.R. 1, 294 D.L.R. (4th) 1, 232 C.C.C. (3d) 349, [2008] 3 C.N.L.R. 347, 376 N.R. 1, 256 B.C.A.C. 75, 37 C.E.L.R. (3d) 1, 58 C.R. (6th) 1, 78 W.C.B. (2d) 343; Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396, [2011] S.C.J. No. 12, 2011 SCC 12, 229 C.R.R. (2d) 329, 412 N.R. 149, 2011EXP-867, 2011EXPT-511, 87 C.C.P.B. 161, J.E. 2011-461, D.T.E. 2011T-181, EYB 2011-187170, [2011] 4 W.W.R. 383, 15 B.C.L.R. (5th) 1, 329 D.L.R. (4th) 193, 300 B.C.A.C. 120, consd

Other cases referred to

Canadian Union of Public Employees v. Canadian Broadcasting Corp., 1992 8644 (ON CA), [1992] 2 S.C.R. 7, [1992] S.C.J. No. 47, 91 D.L.R. (4th) 767, 137 N.R. 7, J.E. 92-918, 54 O.A.C. 161, 4 Admin. L.R. (2d) 294, 92 CLLC Â14,024 at 12136, 33 A.C.W.S. (3d) 736; Chippewas of Kettle & Stony Point First Nation v. Shawkence, [2006] F.C.J. No. 655, 2006 FCA 154, 49 C.C.E.L. (3d) 225, 148 A.C.W.S. (3d) 6, affg [2005] F.C.J. No. 1030, 2005 FC 823, 42 C.C.E.L. (3d) 304, 140 A.C.W.S. (3d) 296; Cybulski v. Ontario (Human Rights Commission), 2005 45194 (ON SCDC), [2005] O.J. No. 5213, 206 O.A.C. 216, 144 A.C.W.S. (3d) 310 (Div. Ct.); Ermineskin Indian Band and Nation v. Canada, [2009] 1 S.C.R. 222, [2009] S.C.J. No. 9, 2009 SCC 9, 384 N.R. 203, J.E. 2009-348, EYB 2009-154400, 302 D.L.R. (4th) 577, [2009] 2 C.N.L.R. 102; Hay v. Ontario Provincial Police, [2012] O.H.R.T.D. No. 2290, 2012 HRTO 2316; Hurd v. Hewitt (1994), 1994 874 (ON CA), 20 O.R. (3d) 639, [1994] O.J. No. 2552, 120 D.L.R. (4th) 105, 75 O.A.C. 205, 28 Admin. L.R. (2d) 165, 51 A.C.W.S. (3d) 199 (C.A.); Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory (Re), 2000 CIRB 64, [2000] C.I.R.B.D. No. 18, [2000] CIRB No. 64, [2001] 1 C.N.L.R. 176; [page105] Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62, EYB 2011-199662, 2012EXP-65, 2012EXPT-54, J.E. 2012-46, D.T.E. 2012T-7, 424 N.R. 220, 340 D.L.R. (4th) 17, 317 Nfld. & P.E.I.R. 340, [2012] CLLC Â220-008, 213 L.A.C. (4th) 95, 38 Admin. L.R. (5th) 255, 208 A.C.W.S. (3d) 435, 97 C.C.E.L. (3d) 199; Ontario (Disability Support Program) v. Tranchemontagne (2010), 102 O.R. (3d) 97, [2010] O.J. No. 3812, 2010 ONCA 593, 222 C.R.R. (2d) 144, 269 O.A.C. 137, 324 D.L.R. (4th) 87, 71 C.H.R.R. D/1, 12 Admin. L.R. (5th) 179, 193 A.C.W.S. (3d) 1267; Peel Law Assn. v. Pieters (2013), 116 O.R. (3d) 81, [2013] O.J. No. 2695, 2013 ONCA 396, 363 D.L.R. (4th) 598, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, 77 C.H.R.R. D/177, 228 A.C.W.S. (3d) 204; Simcoe Muskoka District Health Unit v. Ontario Nurses Assn., [2011] O.J. No. 3140, 2011 ONSC 4045, 282 O.A.C. 292 (Div. Ct.); Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission), 1995 102 (SCC), [1995] 2 S.C.R. 781, [1995] S.C.J. No. 55, 125 D.L.R. (4th) 471, 183 N.R. 161, J.E. 95-1353, 31 Admin. L.R. (2d) 230, 55 A.C.W.S. (3d) 890; Toronto (City) Police Service v. Phipps, [2012] O.J. No. 2601, 2012 ONCA 155, 289 O.A.C. 163, 35 Admin. L.R. (5th) 167, 347 D.L.R. (4th) 616, 75 C.H.R.R. D/ 246, 212 A.C.W.S. (3d) 811

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 15, (1)

Human Rights Code, R.S.O. 1990, c. H.19, ss. 5 [as am.], 8, 34 [as am.]

Indian Act, R.S.C. 1985, c. I-5 [as am.]

Police Services Act, R.S.O. 1990, c. P.15, ss. 2 [as am.], 5(1) [as am.], 25(1), 54(1), (2), (4), (5), (7), Part V [as am.], ss. 66(1), 67(1) [as am.], 68(1), 76 [as am.], (1) [as am.], (3), (9), 77 [as am.], 78 [as am.], 82 [as am.], 83 [as am.], 84 [as am.], 85 [as am.], 86 [as am.], 87 [as am.], 88 [as am.]

Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 [as am.]

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 6(1)

Authorities referred to

Laforme, Ward, et al., Setting the Context: The Policing of First Nations Communities (Ohsweken, Ont.: First Nations Chiefs of Police Association, 2001)

Linden, Sidney B., Report of the Ipperwash Inquiry (Toronto: Queen's Printer for Ontario, 2007)

APPLICATIONS for judicial review of decisions of the vice-chair of the Human Rights Tribunal.

Peter Rosenthal and Jeff Carolin, for Lawrence Hay.

Brian Blumenthal, for Human Rights Tribunal of Ontario.

Christopher Diana and Sarah Kraicer, for Ontario Provincial Police, the Minister of Community and Correctional Services, the Attorney General for Ontario and Julian Fantino.

Anthony Griffin and Sunil Gurmukh, for Ontario Human Rights Commission.

Ian Dick, for Council of the Tyendinaga First Nation.

The judgment of the court was delivered by

DAMBROT J.: —

[1] Lawrence Hay (the "applicant") is a member of the Mohawks of the Bay of Quinte. After an 18-year career with the [page106] Royal Canadian Mounted Police, he left the force to become a First Nations constable and the chief of police of the Tyendinaga Mohawk Police Service (the "TMPS"). After being recruited and interviewed for the position by the Council of the Tyendinaga First Nation (the "council"), on May 19, 1998 he was appointed as a First Nations constable by the commissioner of the Ontario Provincial Police ("OPP") pursuant to s. 54(1) of the Police Services Act, R.S.O. 1990, c. P.15 ("PSA"), with the approval of the council as required by s. 54(2) of the PSA.

[2] By letter dated January 24, 2008, Commissioner Fantino, then commissioner of the OPP (the "commissioner"), after consulting with the council, terminated the applicant's appointment as a First Nations constable pursuant to s. 54(1) and (5) of the PSA.

[3] The applicant applied to the Human Rights Tribunal of Ontario (the "tribunal") for a determination that the termination of his employment contravened the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). On December 10, 2012, Vice-Chair Scott dismissed the application [ [2012] O.H.R.T.D. No. 2290, 2012 HRTO 2316]. I will refer to this application as the first application. The applicant applies to this court for judicial review.

[4] In the course of her decision, Vice-Chair Scott concluded that, while Commissioner Fantino had the authority to terminate the applicant's appointment as a First Nations constable, the council was the applicant's employer. The council brings its own application for judicial review from the decision of the vice-chair (the "second application"). It complains that it was directly affected by the decision of the tribunal, specifically the determination that it was the applicant's employer, and was entitled to notice of the hearing. It says that the failure to give it notice was a denial of natural justice. For the sake of clarity, I will refer to Lawrence Hay as the applicant throughout these reasons, including when I discuss the second application.

Background

The Tyendinaga Mohawk Police Service

[5] The TMPS is a First Nations police service that is governed by the Ontario First Nations Policing Agreement (the "OFNPA"), a tripartite agreement of the federal government, the Province of Ontario and First Nations communities. Under the agreement, the federal and Ontario governments provide funding for First Nations policing. The Aboriginal Policing Bureau of the OPP administers the funding under the OFNPA. [page107] The original term of the OFNPA was from 1991 to 1996, but has been extended by amending agreements. The OFNPA was in effect in 2007 and 2008, the relevant time period in these applications.

[6] Paragraph 2 of the OFNPA provides that the primary goal of First Nations policing arrangements in Ontario is for First Nations, with the financial support of Canada and Ontario, to provide effective and efficient policing services which are culturally sensitive and appropriate for First Nations communities. This includes First Nations members providing policing services and serving on police governing authorities responsible for providing such services.

[7] Paragraph 3 of the OFNPA provides that the primary objective of First Nations policing arrangements is to provide a level and standard of police services at least equivalent to that provided in non-First Nations communities. Paragraph 4 permits First Nations governments, by negotiated agreement with Canada and Ontario, to choose the type of First Nations policing arrangements to be implemented on their territories. The arrangements may consist of, but are not limited to, a series of examples listed in that paragraph.

[8] The Tyendinaga First Nation negotiated an agreement for a police service supplemented by the OPP within the meaning of para. 4(a)(iv) of the OFNPA:

(iv) by agreement with the municipal or regional police service involved or with the O.P.P., a First Nations police service supplemented by a municipal or regional police service or the O.P.P. in a manner not inconsistent with the Police Services Act of Ontario e.g. it is intended that First Nations should have the option of policing with First Nations Constables supported by a municipal or regional police service or by the O.P.P.

[9] The OFNPA has acted as a transition to self-administered ("SA") First Nations police services. As the large regional SA services came into being, the number of First Nations communities and officers under the OFNPA decreased. At the present time, only 19 First Nations communities, including the Tyendinaga First Nation, remain under the OFNPA.

[10] Paragraph 21(a) of the OFNPA requires SA First Nations police services to develop procedures for dealing with complaints against and the discipline of First Nations constables. It states:

The police governing authority referred to in sub-paragraph 4(a)(i) or 4(a)(ii) shall forthwith develop procedures for dealing with complaints against, and the discipline of, First Nations Constables and consult with the Commissioner thereon prior to making any final decision. Unless the parties to the arrangements agree otherwise, such procedures for discipline and complaints shall not be inconsistent with the principles set out in the Police Services Act of Ontario and the regulations made thereunder. [page108]

[11] Paragraph 21(b) of the OFNPA requires First Nations governments to develop similar disciplinary procedures when their police services are supplemented by the OPP or another municipal or regional force. It reads:

A First Nations Government or group of First Nations Governments choosing a police service referred to in subparagraphs 4(a)(iii), 4(a)(iv) or 4(a)(v) shall develop procedures referred in subparagraph 21(a) by agreement with the police service it chooses to police that First Nations Territory.

[12] The council did not develop a complaints process for dealing with complaints against and the discipline of TMPS officers as required under para. 21(b) of the OFNPA.

[13] The OFNPA also provides that, where a First Nations police service is supplemented by the OPP, the First Nations government is the employer of the First Nations constables and civilian staff. Paragraph 33(c) of the OFNPA states:

In arrangements referred to in sub-paragraphs 4(a)(iii) or 4(a)(iv), the First Nations Government shall be the employer of the First Nations Constables and civilian staff and the Commissioner or relevant Chief of Police shall administer First Nations policing arrangements jointly with the First Nations Governments concerned.

[14] Under the OFNPA, First Nations constables are selected for appointment by their own communities. Section 54(1) of the PSA authorizes the commissioner of the OPP to appoint First Nations constables to perform specified duties. Section 54(2) provides that, where the specified duties relate to a reserve as defined in the Indian Act, R.S.C. 1985, c. I-5, the appointment requires the approval of the reserve's police governing authority or band council. Section 54(5) provides that the power to appoint a First Nations constable includes the power to suspend or terminate the appointment. Section 54(4) precludes the commissioner from suspending or terminating the appointment of a First Nations constable, whose specified duties relate to a reserve, without first consulting with the police governing authority or band council that approved the appointment.

[15] Section 54(7) provides that, before a First Nations constable's appointment is terminated, he or she shall be given reasonable information with respect to the reasons for the termination and an opportunity to reply, orally or in writing, as the commissioner may determine.

The occupation

[16] On March 22, 2007, an occupation of a gravel quarry (the "quarry") on the Culbertson Tract commenced. The Culbertson Tract is a piece of land encompassing part of the Town of [page109] Deseronto. The Mohawks of the Bay of Quinte have submitted a land claim to the federal government for the Culbertson Tract. The occupation was in response to the removal of stone from the quarry. By agreement with the detachment commander of the OPP Napanee Detachment, although the quarry is not located on the Tyendinaga reserve, the TMPS undertook the responsibility of frontline policing of the occupation.

The interview

[17] On April 11 or 12, 2007, a student journalist interviewed the applicant, who made the following comments:

I left the RCMP after Oka and I realized just what a racist organization the RCMP was, and I came here to learn that the OPP and the SQ (Sureté de Quebec) are no different. It's deep-seated racism, and they will do all kinds of things to show that it isn't so, but we know better. Our so called partners in policing are simply out to undermine us and to discredit us . . . We asked them to help us out with a porta-potty so our officers wouldn't have to hide behind the cruiser when they relieved themselves, and the bottom line to that was, if it's not OPP pee, forget it . . . They (OPP) want to at least create the impression, to satisfy the Canadian taxpayer, that the police have the situation under control, when in fact, if they were here, it would be nothing but an escalation of violence.

[18] These comments were published in Online Pioneer, a Loyalist College publication, on April 14, 2007. The applicant advised Chief Donald Maracle, the chief of the Tyendinaga Nation ("the chief"), about the comments shortly after he made them. The chief suggested to the applicant that he recant the comments and apologize so as to not jeopardize his policing career.

The suspension

[19] On April 18, 2007, the commissioner suspended the applicant's appointment as a First Nations constable under s. 54(5) of the PSA. The commissioner advised the applicant that his comments to the press had called into question the appropriateness of his appointment as a First Nations constable and that an investigation would take place. The commissioner advised the applicant that the results of the investigation would be shared with him and he would be provided with an opportunity to respond to the findings. At the end of the process, the commissioner would either remove the suspension or terminate the applicant's appointment. Finally, the commissioner advised the applicant that any issues or concerns relating to his status as an employee should be directed to his employer, the Tyendinaga First Nation, and that he was only dealing with his appointment as a First Nations constable. The OPP suspended the applicant with full pay. [page110]

[20] On April 20, 2007, OPP Superintendent Blair wrote to the chief about the applicant's suspension and confirmed that on April 18, 2007, he had advised the chief of the commissioner's intention to suspend Mr. Hay's appointment as a result of a conduct-related matter. He confirmed that the council would be consulted with regard to the final disposition of this matter.

[21] On April 23, 2007, Chief Maracle notified Fantino of his "serious disappointment" with the absence to consultation prior to Hay's suspension.

[22] On May 3, 2007, Staff Sergeant Chris Newton of the OPP Professional Standards Bureau ("PSB") notified the applicant that an internal complaint had been filed against him. He was advised that Detective Sergeant Reema Abdo would investigate the complaint.

[23] By letter dated May 15, 2007, Michael O'Shaughnessy, counsel for the applicant, wrote to Staff Sergeant Newton advising him that the applicant would not attend any meetings or be involved in any process until the "illegal" suspension was revoked.

[24] On May 23, 2007, the applicant issued a notice of claim under the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. The notice of claim challenged the applicant's suspension on the basis that there was no consultation with the council.

[25] By letter dated May 31, 2007, M. MacLachlan of the PSB wrote to Mr. O'Shaughnessy and advised him that the PSB had been assigned to conduct an investigation into the remarks allegedly made by the applicant and his conduct in relation to his appointment as a First Nations constable. The letter advised Mr. O'Shaughnessy that his client would be contacted by Detective Sergeant Abdo. It said that, if the applicant chose not to speak with the investigator, the investigation would proceed without the benefit of his response to the allegations. A report of the findings and conclusions of the investigation would be prepared for the commissioner.

[26] The PSB investigation was delayed by the need to reassign the investigation, but was completed in August 2007 and delivered to the commissioner on August 31, 2007. The report made the following findings:

(1) the applicant made the impugned comments to the press;

(2) the appointment of the applicant as police chief deteriorated the relationship between the OPP and the TMPS;

(3) the applicant made it clear to the members of the TMPS that he had a dislike of the OPP as an organization; [page111]

(4) the applicant stated to members of the TMPS that the OPP are "Fucking Idiots" and "a bunch of cowboys";

(5) there was a clear division within the TMPS as to how the occupation site should be policed;

(6) the applicant created division within the TMPS office;

(7) the applicant's attitude towards the OPP and the comments to the media created a safety concern for some members of the TMPS. They felt OPP officers would be hesitant to come to the reserve for backup.

[27] The PSB report was shared with the council on September 7, 2007.

The termination

[28] By letter dated December 12, 2007, the commissioner advised the applicant that he was considering the termination of his appointment as a First Nations constable based on the investigation findings that the applicant had made the comments attributed to him by the press. The commissioner told the applicant that he had consulted with the council, and that while the council did not condone the applicant's behaviour, the council did not regard termination as warranted. The council suggested that a lesser form of discipline would be appropriate, but was not prepared to take any action. The commissioner advised the applicant that his conduct was inconsistent with the roles and responsibilities of a First Nations constable. He stated that broad unsubstantiated public allegations of this nature, about other police services in Ontario, were unacceptable, particularly when made by an officer in uniform and on duty. He stated further that the applicant's comments fostered disrespect for those responsible for law enforcement and could potentially place those individuals at risk. Finally, he stated the applicant's comments frustrated the ability of all police services in the province to work together and likely led to a lack of trust and respect amongst the applicant's policing partners. The comments were more concerning given the applicant's supervisory role with the police service in his community. The applicant was invited to reply to these concerns within three weeks of the December 12, 2007 letter.

[29] On January 15, 2008, Mr. O'Shaughnessy wrote to the commissioner and advised him that the applicant would not participate in the investigation and would not reply to the allegations until the suspension was revoked. [page112]

[30] On January 22, 2008, the commissioner, Deputy Commissioner Lewis and Superintendent Blair met with the council to discuss the findings of the PSB report.

[31] By letter dated January 24, 2008, the commissioner terminated the applicant's appointment as a First Nations constable for the reasons outlined in his December 12, 2007 correspondence.

[32] By letter dated January 24, 2008, the commissioner wrote to the chief to advise him of the decision to terminate the applicant's appointment as a First Nations constable. The commissioner advised the chief that he was not terminating the applicant's employment. He stated that any impact this decision may have on the applicant's employment status was for his employer, the Tyendinaga First Nation, to resolve.

[33] The chief responded to the commissioner's letter on April 2, 2008, more than two months after the termination. He took the position the applicant was an OPP employee and, as a result, the termination of his appointment as a First Nations constable was a termination of his employment by the OPP.

[34] On July 8, 2008, Superintendent Blair responded to this letter and reiterated that the applicant was employed by the Tyendinaga First Nation by virtue of para. 33(c) of the OFNPA.

The Human Rights Tribunal hearing

[35] The applicant brought an application under s. 34 of the Code in relation to the suspension and termination of his appointment as a First Nations constable. He alleged that his race, ancestry and ethnic origin were factors in the decisions to suspend and ultimately terminate his appointment, violating s. 5 of the Code, and that the termination was an act of reprisal contrary to s. 8 of the Code. He also alleged that the exclusion of First Nations constables from the PSA is discriminatory contrary to s. 5 of the Code.

[36] In her decision, Vice-Chair Scott identified the following issues [at para. 57]:

a. Was the suspension and termination of the applicant's appointment as a First Nations Constable discriminatory?

b. Was the applicant's termination a form of reprisal?

c. Was the investigation conducted by PSB discriminatory?

d. Is the exclusion of First Nations Constables from the PSA discriminatory?

I propose next to summarize the vice-chair's conclusions about each of these issues. [page113]

A preliminary issue -- who was the applicant's employer?

[37] Before reaching the four issues raised in the application, the vice-chair considered certain preliminary issues, including the determination of who was the applicant's employer. She noted that, because the parties agree that the applicant's allegations were "with respect to his employment" within the meaning of s. 5 of the Code, there is no issue regarding the application of the Code to the applicant's complaint of discrimination. In other words, a finding that the council was the applicant's employer would not preclude consideration of the applicant's claim.

[38] The vice-chair also noted that, consistent with the terms of the OFNPA, the parties all took the position that the council was the applicant's employer. However, she acknowledged that the council, although not a party to the application, had asserted that the OPP was the applicant's employer. The vice-chair resolved the issue because she believed that the identity of the applicant's employer was relevant to the fourth issue raised in the application, namely, whether the exclusion of the applicant from the PSA discriminated against him.

[39] She made reference to Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory (Re), 2000 CIRB 64, [2000] C.I.R.B.D. No. 18, [2000] CIRB No. 64, a decision of the Canadian Industrial Relations Board ("CIRB") relied on by the chief in a letter to the commissioner on April 2, 2008. In that case, although the CIRB held that the council was responsible for the appointment, discipline and termination processes of First Nations constables, the financial aspects of the relationship between the First Nations constables and the OPP were conclusive of the employer/employee relationship. The CIRB found the OPP was the employer because it controlled the salary, overtime pay, insurance, and pension rights of First Nations constables.

[40] However, the vice-chair preferred the decision of the Federal Court in Chippewas of Kettle & Stony Point First Nation v. Shawkence, [2005] F.C.J. No. 1030, 2005 FC 823, 42 C.C.E.L. (3d) 304, affd on other grounds [2006] F.C.J. No. 655, 2006 FCA 154, 49 C.C.E.L. (3d) 225. In its decision, the court held that the Kettle & Stony Point First Nation was the employer of First Nations constables. The court stated that to hold otherwise would remove the ability of the KSP First Nation to hire its own police constables. The court distinguished the CIRB decision on the basis that it involved the certification of a bargaining unit, not unjust dismissal, and did not involve officers who were first employed by the individual First Nation communities. [page114]

[41] She found further support for her view that the council was the applicant's employer in the paper Setting the Context: The Policing of First Nations Communities (Ohsweken, Ont.: First Nations Chiefs of Police Association, 2001), prepared by the First Nations Chiefs of Police Association in partnership with Human Resources Development Canada, where it was stated, at p. 115:

To be clear, First Nations constables employed under the OFNPA or a tripartite arrangement between a First Nation, the province and Canada, are not employees of the OPP (or other provincial police service). If they are appointed under the OFNPA and are not members of a self-administered police service, they are defined as employees of the First Nations Council, governed by the terms of their own policing agreement. The officers are accountable to an established police governance board in addition to the members of the First Nations members that they serve. The police governance board acts as a sounding board for the community's concerns.

[42] I turn next to the vice-chair's consideration of the four issues raised in the application before her.

1. Was the suspension and termination of the applicant's appointment as a First Nations constable discriminatory?

[43] With respect to this issue, the applicant argued that (a) his suspension and termination were discriminatory because they were imposed without consultation with the council; (b) the termination of his appointment was discriminatory because he was treated more harshly than the OPP officers who made racist comments and distributed racist material relating to the protest by First Nations in Ipperwash Provincial Park during which Dudley George was shot in 1995; and (c) the suspension and termination were influenced by racism because the commissioner himself is culturally insensitive or racist towards First Nations people.

[44] The vice-chair rejected these allegations.

(a) The failure to consult

[45] While the commissioner did not consult with the council prior to making the decision to suspend the applicant's appointment as required by s. 54(4) of the PSA, the vice-chair concluded that this decision was not influenced by the applicant's race. Rather, it reflected the seriousness with which the commissioner perceived the applicant's conduct. She concluded that the decision was made quickly and without consultation due to the nature of the applicant's comments and the commissioner's [page115] assessment of their impact on the broader policing community having regard to the volatility of the times both in relation to the occupation of the quarry and other land disputes that were taking place in the province. She acknowledged that the tribunal has no authority to judicially review the commissioner's breach of his statutory duty as that was within the exclusive jurisdiction of the courts.

[46] With respect to the decision to terminate, the vice-chair concluded that the commissioner properly consulted with the council before making his final decision. As a result, the decision to terminate cannot be found to be discriminatory on this basis.

(b) The treatment of non-Aboriginal officers

[47] The applicant argued that the termination of his appointment was discriminatory because he was treated more harshly than the OPP officers who made racist comments and distributed racist material relating to Ipperwash. He said that his appointment was terminated for drawing attention to racism within the OPP while OPP officers who had engaged in racist conduct received inconsequential discipline and continued to be employed. In particular, the applicant relied on the treatment of two specific officers.

[48] The vice-chair concluded that there were a number of variables that make the applicant's comparative analysis impossible, including the dissimilarity of the misconduct; the fact that the applicant was a senior officer while the others were constables; the fact that the other officers participated in the investigation while the applicant did not; and the fact that the other officers expressed remorse while the applicant did not. She concluded that, even if they could be compared, there were too many variables to make the comparison reliable.

[49] The vice-chair also rejected the suggestion that the delay of the PSA hearing that resulted in the discharge of the officer who caused the death of Mr. George was evidence of racism in the OPP. She thought that the length of time required for his appeals from his conviction for criminal negligence causing death was a more likely explanation.

[50] The vice-chair ultimately found that the comparison between the applicant and the conduct of other non-Aboriginal officers who engaged in racist conduct could not form the basis of a reliable comparison as the conduct involved was too dissimilar. Any real comparison would need to be with a senior OPP officer who publicly criticized the OPP while in uniform and on duty, and refused to explain or justify the criticism. There was an [page116] absence of any such examples. The vice-chair accepted that the OPP's reaction to a non-Aboriginal senior officer going to the press with serious criticisms of the OPP would not have differed from their response in this case.

(c) The alleged cultural insensitivity of the commissioner

[51] The vice-chair concluded that the applicant's evidence was insufficient to draw an inference that the commissioner held culturally insensitive views towards First Nations and that those views influenced his treatment of the applicant. She explained in detail why the matters relied on by the applicant did not lead her to that conclusion. I will not review those matters again. In the end, she found that the commissioner responded to the applicant because of the seriousness with which he viewed his public comments to the press, and not because of racist or culturally insensitive attitudes held by him.

(d) Conclusion on this issue

[52] The vice-chair concluded that the applicant failed to establish that the decisions to suspend and terminate his appointment were discriminatory. The commissioner suspended the applicant's appointment because his comments put into question the appropriateness of his appointment as a First Nations constable. The suspension allowed the OPP to investigate his conduct. The commissioner consulted with the council prior to terminating the applicant's appointment. While it is unknown whether the commissioner would have acted differently had the council taken disciplinary action, the decision to terminate was based on non-discriminatory reasons. The applicant was terminated because he made public allegations against the OPP and other police services while in uniform and on duty. The comments were unsubstantiated because the applicant refused to explain them. The comments fostered disrespect for police officers and potentially placed them at risk. They interfered with the co-operation necessary for police services to work together. The comments were more concerning because they were made by the chief of police. She said that these were the reasons given in the termination letter and that they were not discriminatory.

2. Was the applicant's termination a form of reprisal for claiming his human rights?

[53] The applicant alleged that his termination contravened s. 8 of the Code, which provides: [page117]

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

[54] The vice-chair rejected this argument on the basis that the applicant was not asserting his rights under the Code when he spoke to the press. The applicant was clear in his evidence that he did not have a complaint as an individual officer; his complaint was systemic in nature. While some systemic complaints may involve individual complaints of discrimination, that is not the case here. The applicant's police resourcing complaint was not an assertion of his rights under the Code. In fact, the applicant himself did not see the police resourcing complaint as a human rights issue. His legal counsel consistently responded, both in correspondence and in litigation documents that the suspension was illegal because the statutory requirement to consult with the council had not been met.

[55] The applicant also argued that his suspension was in reprisal for policing the occupation of the quarry in a culturally sensitive manner. The vice-chair found that there was no evidence to support this allegation. To the contrary, she noted, the evidence before the tribunal was to the effect that the OPP thought the TMPS was doing a good job policing the occupation of the quarry. There were no criticisms regarding how the TMPS was performing in this role.

[56] The vice-chair concluded that the applicant's comments to the press were not an assertion of his human rights under the Code and, as a result, he did not have access to the protections found in s. 8.

3. Was the investigation conducted by PSB discriminatory?

[57] The applicant argued that the PSB investigation into his conduct was unfair for the following reasons: both Superintendent Blair and the deputy commissioner functioned as complainants; Superintendent Blair was involved in the investigation; the applicant did not see the PSB report; the OPP did not answer questions from the applicant's legal counsel; the investigation took too long; the applicant was never informed of allegations relating to sharing information with Shawn Brant and his records-management system; and there were deficiencies in the investigation report.

[58] The vice-chair commented that the applicant made no submissions as to how the investigation was discriminatory. While the applicant said that the investigation was so unfair [page118] that it supports a finding of racial discrimination, he provided no explanation for this bald assertion.

[59] The vice-chair concluded that the tribunal does not have jurisdiction over allegations of unfairness unrelated to the Code. The mere fact that unfairness has been caused to a person protected by the Code is insufficient. The applicant must establish a link between the unfairness and his race. He failed to do so and, as a result, this claim was dismissed.

4. Is the exclusion of First Nations constables from the PSA discriminatory?

[60] Part V of the PSA, entitled "Complaints and Disciplinary Proceedings", contains detailed provisions governing the handling of complaints about police force policies and police officers' conduct. In particular, ss. 76-78 concern internal complaints, and ss. 82-88 concern hearings.

[61] Section 76(1) permits a chief of police to make a complaint under that section about the conduct of a "police officer employed by his or her police force", and to cause it to be investigated and reported on in writing. Section 76(3) requires prompt notice of the substance of a complaint about a police officer to be given to the police officer.

[62] Section 76(9) provides that if at the conclusion of an investigation and on review of the report the chief of police believes on reasonable grounds that the police officer's conduct constitutes misconduct, he or she shall hold a hearing into the matter.

[63] Section 82 provides for the appointment of a prosecutor at a hearing held under s. 76(9), and s. 83 provides that the hearing will be conducted in accordance with the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and establishes the procedure for such a hearing. Section 84 provides that if, at the conclusion of the hearing, misconduct has been proved on clear and convincing evidence, the chief of police shall take any action described in s. 85. Section 85 provides for dismissal, demotion, suspension, forfeiture of pay or time off, reprimand, counselling, treatment or training, and participation in a specified program or activity.

[64] Section 87 provides for an appeal to the Ontario Civilian Police Commission (the "commission"). Section 88 provides for an appeal from a decision of the commission to the Divisional Court.

[65] These provisions concerning complaints and disciplinary proceedings in relation to the conduct of police officers do not apply to a First Nations constable because the definition of [page119] a "police officer" in s. 2 of the PSA excludes "a special constable, a First Nations constable, a municipal law enforcement officer or an auxiliary member of a police force".

[66] The applicant argued the exclusion of First Nations constables from the definition of "police officer" under the PSA is discriminatory because it denies them the procedural protections under Part V of the PSA. Notably, a police officer who is the subject of a complaint has a right to an oral hearing and a right to appeal.

[67] The applicant also argued that s. 54(5) of the PSA is discriminatory because it limits the commissioner's authority to suspension and termination. The applicant asserted that he was denied the range of disciplinary options available to non-First Nations constables under Part V. It is clear that the arguments relating to the exclusion of First Nations constables under the PSA and the commissioner's limited authority under s. 54(5) are interrelated.

[68] The vice-chair rejected this argument as well. She noted that while differential treatment as a result of the express exclusion of First Nations constables from the definition of "police officer" under the PSA is apparent on the face of the legislation, the issue is whether their exclusion is discriminatory.

[69] She said that proving discrimination requires more than simply identifying a distinction based on a prohibited ground of discrimination and a negative impact. Not every distinction that creates a disadvantage is discriminatory. For differential treatment to be discriminatory, it must create disadvantage in the sense that it perpetuates historic disadvantage, prejudice or stereotyping. In many cases, a more nuanced inquiry is required to determine whether differential treatment based on a prohibited ground of discrimination results in substantive discrimination.

[70] The vice-chair noted that she heard evidence that there is no consensus in the First Nations community regarding the applicability of provincial policing legislation to First Nations policing. Many First Nations governments believe their relationship is with the federal, not the provincial, government and they are concerned about the impact of provincial policing legislation on Aboriginal and treaty rights.

[71] She further noted that First Nations constables were excluded from the PSA out of respect for the self-government of First Nations communities. Their exclusion, in conjunction with the OFNPA, gives First Nations governments autonomy over their police services, including how to deal with complaints against and the discipline of First Nations constables in [page120] a culturally sensitive way. It promotes the equality of First Nations governments and First Nations constables and is the very antithesis of substantive discrimination. She reached this conclusion based on a review of the proceedings before the standing committee on the administration of justice on June 12, 1990 recorded in Hansard, when the PSA was before the legislature.

[72] She stated that the argument advanced by the applicant is really one of formal equality. The applicant wanted to be treated the same as non-First Nations constables. She found that this argument ignores the specific needs of First Nations communities and fails to recognize that, for real equality to be achieved, differential treatment is often required.

[73] She went on to note that, as the applicant's employer, the council had the authority to discipline the applicant unconstrained by statutory limitations. Had the council disciplined the applicant, the commissioner might have felt it unnecessary to act. While she was unprepared to find that the commissioner would not have acted given the seriousness with which he viewed the applicant's conduct, had he acted in spite of the council's discipline, the applicant's case might have been very different. But the fact was that the council remained steadfast that it would take no steps to discipline the applicant.

[74] As a result, the vice-chair found that the lack of procedure and disciplinary options available to the applicant did not result from his exclusion from the PSA or the limited authority given to the commissioner under s. 54(5). It resulted from the council's failure to develop the appropriate process for dealing with complaints against and the discipline of its First Nations constables, and its failure to act as the applicant's employer.

[75] Finally, she concluded that the exclusion of First Nations constables from the PSA is consistent with the First Nations policing scheme as a whole and supports the right of self-determination by allowing First Nations to control their own police services, and is not discriminatory.

The First Application

The standard of review

[76] There is no dispute that the standard of review on an application for judicial review of the decision of the tribunal with respect to determinations of fact and the interpretation and application of human rights law is reasonableness. To succeed on [page121] judicial review in this case, it is necessary to show that the tribunal could not have reasonably arrived at the decision it did. In deferentially considering the tribunal's decision, a reviewing court should analyze whether the outcome was within the range of reasonable outcomes in light of the evidence: see Toronto (City) Police Service v. Phipps, [2012] O.J. No. 2601, 2012 ONCA 155, 289 O.A.C. 163, at para. 10; Peel Law Assn. v. Pieters (2013), 116 O.R. (3d) 81, [2013] O.J. No. 2695, 2013 ONCA 396, at para. 132; and Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62, at paras. 12-18.

The issues

[77] The issues raised by the applicant on this application largely tracked the issues considered by the tribunal. He worded them as follows:

1. Does the difference in disciplinary procedures between First Nations Constables and other police officers discriminate against First Nations Constables?

2. Does the failure of the Commissioner of the OPP to fulfil statutory duties owed to First Nations Constables provide circumstantial evidence of racial discrimination?

3. Was race a factor in the termination of the applicant's appointment as a First Nations Constable?

4. Was the suspension or termination of the applicant an act of "reprisal" under the Code?

[78] I will consider these issues in turn.

Does the difference in disciplinary procedures between First Nations constables and other police officers discriminate against First Nations constables?

[79] The applicant challenged the vice-chair's conclusion that the absence of procedural safeguards available to police officers, particularly the right to a hearing and an appeal, was not discriminatory because this failing rests with the band council. He submitted that this might be arguable if the commissioner could not terminate the appointment of a First Nations constable if the band had imposed a lesser discipline, but that is not the case. He said that the vice-chair's comment that, had the commissioner acted in spite of the council's discipline, the case might have been different, is not rational.

[80] The applicant further argued that even if, as the vice-chair concluded, the exclusion of First Nations constables from [page122] the PSA supports the right of self-determination by allowing First Nations to control their own police services, depriving First Nations constables of procedural fairness by permitting the commissioner to summarily terminate them even in the face of council opposition does not further that objective.

[81] In the end, it was the applicant's position that the different procedural treatment afforded to the applicant was discriminatory.

[82] The Ontario Human Rights Commission ("OHRC") supported the applicant on this issue.

[83] Counsel argued that the vice-chair erred when she stated that, although there was differential treatment of First Nations constables under the PSA, before it can be discriminatory, "it must create disadvantage in the sense that it perpetuates historic disadvantage, prejudice or stereotyping". The Supreme Court clarified in Quebec (Attorney General) v. A., [2013] 1 S.C.R. 61, [2013] S.C.J. No. 5, 2013 SCC 5, at paras. 331-42 that claimants under s. 15 of the Canadian Charter of Rights and Freedoms are not required to prove that a distinction perpetuates prejudice or stereotyping. While these are indicia that may help demonstrate discrimination, they are not free-standing requirements. The OHRC further argued that here the focus must be on the effect of the scheme, not its intention.

[84] In particular, the OHRC argued that the commissioner's ability to suspend or terminate a First Nations constable appointed under the PSA without the procedural rights afforded to a police officer under that Act, regardless of the presence or absence of any First Nations government discipline procedure, meets the test for prima facie discrimination because of their First Nations ancestry.

[85] I will begin with the OHRC's argument.

[86] When the vice-chair came to consider the express exclusion of First Nations constables from the definition of "police officer" under the PSA, she began by noting that differential treatment is apparent on the face of the legislation, but the "issue is whether their exclusion is discriminatory". She then stated [at para. 137]:

Proving discrimination requires more than simply identifying a distinction based on a prohibited ground of discrimination and a negative impact. The law is clear that not every distinction that creates a disadvantage is discriminatory. For differential treatment to be discriminatory, it must create disadvantage in the sense that it perpetuates historic disadvantage, prejudice or stereotyping.

[87] As I have noted, the OHRC argued that this formulation is erroneous, because claimants under s. 15 of the Charter are [page123] not required to prove that a distinction perpetuates prejudice or stereotyping.

[88] The vice-chair's formulation of what is required to prove discrimination is consistent with the formulation adopted in the Code context in Ontario (Disability Support Program) v. Tranchemontagne (2010), 102 O.R. (3d) 97, [2010] O.J. No. 3812, 2010 ONCA 593, a decision the vice-chair specifically relied on. Similarly, in R. v. Kapp, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, 2008 SCC 41, at para. 17, and Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396, [2011] S.C.J. No. 12, 2011 SCC 12, at para. 30, both of which were judgments of McLachlin C.J.C. and Abella J., the Supreme Court endorsed the following two-part test for assessing a s. 15(1) Charter claim: (1) does the law create a distinction that is based on an enumerated or analogous ground; and (2) does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

[89] Despite this, as I have noted, counsel for the OHRC argued that the vice-chair erred when she stated that before differential treatment can be discriminatory, "it must create disadvantage in the sense that it perpetuates historic disadvantage, prejudice or stereotyping". In making this argument, counsel relied on Quebec (Attorney General) v. A. In that case, Abella J., speaking for the majority on this issue, clarified, at paras. 331-42, that claimants under s. 15 of the Charter are not required to prove that a distinction perpetuates prejudice or stereotyping. While these are indicia that may help demonstrate discrimination, they are not free-standing requirements. I do not doubt that this same reasoning applies to a Code allegation of discrimination: see Tranchemontagne, at para. 84.

[90] In considering this argument, it must be recalled that the vice-chair's decision was delivered on December 10, 2012, while the decision in Quebec (Attorney General) v. A. was delivered on January 25, 2013. The vice-chair cannot be faulted for formulating the test for discrimination in a manner consistent with binding authority, and for failing to follow a clarification of the law in a decision not yet rendered.

[91] Further, I note, in Quebec (Attorney General) v. A., at paras. 325-27, Abella J. made it clear that she was not purporting to overrule Kapp and Withler. Instead, she explained, despite the reference to prejudice and stereotyping in the second step of the test for discrimination, the court was not purporting to create a new s. 15 test. She noted, at para. 325, that "Withler is clear that '[a]t the end of the day, there is only one question: Does the challenged law violate the norm of substantive equality in s. 15(1) of the Charter?'" (emphasis in original). It seems to me that the [page124] clarification provided in Quebec (Attorney General) v. A that prejudice and stereotyping are indicia of discrimination, rather than discrete prerequisites, is simply meant to ensure that courts not impose overly formalistic obstacles in assessing claims of discrimination. In other words, the formulation of the test in Kapp and Withler, properly understood, does not reflect error.

[92] I am satisfied the vice-chair's adoption of the test in Kapp and Withler does not reflect the error that concerned Abella J. in Quebec (Attorney General) v. A. Indeed, in the very next sentence after the impugned passage of the vice-chair's decision, the vice-chair stated [at para. 137], "In many cases, a more nuanced inquiry is required to determine whether differential treatment based on a prohibited ground of discrimination results in substantive discrimination," echoing closely what I have just noted was said in Withler, and specifically adopted in Quebec (Attorney General) v. A.: "[a]t the end of the day there is only one question: Does the challenged law violate the norm of substantive equality in s. 15(1) of the Charter?"

[93] Finally, on this point, even if it could be said that the vice-chair erred in her formulation of the test for discrimination, in this case, the error is harmless. As Abella J. noted, in para. 327 of Quebec (Attorney General) v. A., the focus must be on discriminatory impact or effect, not on discriminatory attitudes. The ultimate focus of the vice-chair's decision on this issue was in fact on discriminatory impact. Her decision did not turn on the question of whether or not the applicant had proved that the distinction between police officers and First Nations constables in the PSA perpetuates prejudice or stereotyping. Her bottom line was that the lack of procedure and disciplinary options available to the applicant did not result from his exclusion from the PSA or the limited authority given to the commissioner under s. 54(5). It resulted from the council's failure to develop the appropriate process for dealing with complaints against and the discipline of its First Nations constables and its failure to act as the applicant's employer. In other words, the distinction made in the PSA was not the source of any discriminatory impact suffered by the applicant.

[94] Of course, my conclusion that the vice-chair applied the correct test for discrimination does not resolve the argument made by the applicant and the OHRC that the difference in disciplinary procedures between First Nations constables and other police officers discriminates against First Nations constables and violates the Code. But the application of the test to the facts of this case falls to be reviewed on the basis of a test of reasonableness. This brings me back to the applicant's argument. [page125]

[95] To repeat, the applicant argued that the vice-chair's conclusion that the absence of procedural safeguards available to police officers, particularly the right to a hearing and the right to an appeal was not discriminatory because this failing rests with the council was unreasonable, particularly since the commissioner can terminate the appointment of a First Nations constable even if the council imposes a lesser discipline. In addition, he says that the vice-chair's comment that, had the commissioner acted in spite of the council's discipline, the case might have been different, is not rational.

[96] I do not agree. In my view, the vice-chair's decision on this issue is entirely reasonable. The vice-chair began her analysis by noting that the differential treatment of First Nations constables in the PSA is that they are excluded from the definition of "police officer". It is worth taking a moment to examine the pertinent consequence of this differential treatment.

[97] As a result of the exclusion of First Nations constables from the definition of "police officer", complaints about the conduct of a First Nations constable are not dealt with in accordance with the complex provisions of the PSA. Complaints about the conduct of police officers are subject to (1) investigation and inquiry into their conduct or the performance of their duties by the commission pursuant to s. 25(1) of the PSA; (2) investigation into complaints about their conduct by the Independent Police Review Director pursuant to s. 68(1) of the PSA; (3) investigation about such complaints by a chief of police, including the OPP commissioner, upon referral by the Independent Police Review Director by the commission pursuant to ss. 66(1) or 67(1); and (4) investigation of internal complaints about the conduct of a police officer made by the chief of police of the police force that employs the officer, including the commissioner of the OPP. The PSA also includes procedural safeguards for a police officer who is investigated under these various provisions.

[98] Of course, looking at the PSA tells us nothing about how complaints about the conduct of First Nations constables are dealt with, and nothing about the procedural safeguards that exist in that process. Only with that contextual information can it be determined if there is discrimination. For that reason, the vice-chair undertook [at para. 137] "a more nuanced inquiry . . . to determine whether differential treatment based on a prohibited ground of discrimination results in substantive discrimination". Specifically, she considered how investigations into complaints about the conduct of First Nations constables are investigated, what procedural safeguards exist for First Nations constables and [page126] why the process is different than the scheme in the PSA. This was a proper approach to the issue.

[99] As stated in Ermineskin Indian Band and Nation v. Canada, [2009] 1 S.C.R. 222, [2009] S.C.J. No. 9, 2009 SCC 9, at paras. 193-94:

The question of whether discrimination exists is to be determined with regard to context, looking beyond simply the legislation in question. In R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296, this Court stated:

In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context.

This Court's statement in Turpin signals the importance of addressing the broader context of a distinction in a substantive equality analysis.

[100] Similarly, in Withler, the court stated the following, at para. 38:

Without attempting to limit the factors that may be useful in assessing a claim of discrimination, it can be said that where the discriminatory effect is said to be the perpetuation of disadvantage or prejudice, evidence that goes to establishing a claimant's historical position of disadvantage or to demonstrating existing prejudice against the claimant group, as well as the nature of the interest that is affected, will be considered. Where the claim is that a law is based on stereotyped views of the claimant group, the issue will be whether there is correspondence with the claimants' actual characteristics or circumstances. Where the impugned law is part of a larger benefits scheme, as it is here, the ameliorative effect of the law on others and the multiplicity of interests it attempts to balance will also colour the discrimination analysis.

[101] Based on her review of the applicant's circumstances, the vice-chair recognized that there was in fact no process or procedure in place for the consideration of complaints about the conduct of the applicant, and as a result no procedural safeguards and no disciplinary options. But based on a review of the terms of the OFNPA, other source material and the relevant case law, she concluded that the lack of procedure and disciplinary options available to the applicant did not result from his exclusion from the PSA or the limited authority given to the commissioner under s. 54(5). It resulted from the council's failure to develop the appropriate process for dealing with complaints against and the discipline of its First Nations constables and its failure to act as the applicant's employer. This is an entirely reasonable conclusion.

[102] It will be remembered that the Tyendinaga First Nation negotiated an agreement for a police service supplemented by the OPP within the meaning of para. 4(a)(iv) of the OFNPA; that, [page127] pursuant to para. 21(a) and (b) of the OFNPA, the Tyendinaga First Nation was required to develop procedures for dealing with complaints against and the discipline of its constables. I underscore that the Tyendinaga First Nation was obliged to develop procedures for dealing with complaints against and the discipline of its constables whether or not it is viewed as the applicant's employer.

[103] The vice-chair also examined the underlying reason for the exclusion of First Nations constables from the definition of peace officers. She noted that when the PSA was before the standing committee on the administration of justice on June 12, 1990, Grand Chief Cheechoo of the Nishnawbe-Aski Nations ("NAN") testified that, although the First Nations wanted their constables to have full police officer status, they did not want them to be subject to all of the employment, disciplinary and complaints procedures that other constables are subject to, which they considered too complex for their small and isolated communities. They wanted to design simple procedures which would apply to their constables, but which would address the same basic issues. The Solicitor General was responsive to this concern, and as a result, First Nations constables were excluded from the definition of "police officer".

[104] On the evidentiary record before her, it was entirely reasonable for the vice-chair to conclude that [at para. 140]

First Nations Constables were excluded from the PSA out of respect for the self-government of First Nations communities. Their exclusion, in conjunction with the OFNPA, gives First Nations Governments autonomy over their police services, including how to deal with complaints against and the discipline of First Nations Constables in a culturally sensitive way. It promotes the equality of First Nations Governments and First Nations Constables and is the very antithesis of substantive discrimination.

[105] In turn, it was reasonable for her to conclude that the applicant's argument ignores the specific needs of First Nations communities and fails to recognize that, for real equality to be achieved, differential treatment is often required.

[106] I recognize that there remains one feature of the PSA that is open to criticism. While the PSA excluded First Nations constables from the definition of "police officer" in order to leave the development of employment, disciplinary and complaints procedures to the First Nations, it left the appointment of First Nations constables in the hands of the commissioner, and, more importantly, left the termination in the hands of the commissioner after consulting with the relevant band council.

[107] In the Report of the Ipperwash Inquiry (Toronto: Queen's Printer for Ontario, 2007), Commissioner Linden recommended [page128] that the PSA be amended to allow a First Nations police service or board to appoint its own officers. It was his opinion that there is no good rationale for giving this power to the commissioner.¹

[108] But even if there is no good reason for giving this power to the commissioner, it was the vice-chair's view that the lack of procedure and disciplinary options available to the applicant did not result from the limited authority given to the commissioner under s. 54(5). It resulted from council's failure to develop the appropriate process for dealing with complaints against and the discipline of its First Nations constables. Once again, this conclusion is a reasonable one.

[109] I note that the applicant argued that the vice-chair's comment that, had the commissioner acted in spite of the council's discipline, the case might have been different is not rational. Again, I do not agree. I understand the vice-chair to be saying, hypothetically, that if the council had created a procedure with disciplinary options as it was required to do, and had the council disciplined the applicant short of termination, then a decision by the commissioner to terminate the applicant's appointment might raise concerns about discrimination not present on this record. Aside from the fact that this comment is obiter, it seems entirely reasonable to me.

[110] As a result, it was open on the record before the vice-chair to conclude that the lack of procedure and disciplinary options available to the applicant did not result from his exclusion from the PSA but rather from the council's failure to fulfil its responsibilities under para. 21(b) of the OFNPA, responsibilities that were given to the council for sound reason. As a result, she was entitled to conclude that the differential treatment was not discriminatory.

Does the failure of the commissioner of the OPP to fulfil statutory duties owed to First Nations constables provide circumstantial evidence of racial discrimination?

[111] It will be recalled that on April 18, 2007, the commissioner suspended the applicant's appointment as a First Nations constable under s. 54(5) of the PSA. On April 20, 2007, OPP Superintendent Blair wrote to the chief about the applicant's suspension and confirmed that on April 18, 2007, he had advised the chief of the commissioner's intention to suspend the applicant's appointment as a result of a conduct-related matter. [page129]

[112] While the commissioner did not consult with the council prior to making the decision to suspend the applicant's appointment as required by s. 54(4) of the PSA, the vice-chair concluded that this decision was not influenced by the applicant's race, but reflected the seriousness with which the commissioner perceived the applicant's conduct. She acknowledged that the tribunal has no authority to judicially review the commissioner's breach of his statutory duty as that is within the exclusive jurisdiction of the courts.

[113] The applicant argued that the failure of the commissioner to properly consult before suspending him has a racial aspect simply because the subject matter relates to First Nations constables. There is no merit to this argument, but in any event, the vice-chair's finding of fact on this issue is reasonable and entitled to deference.

[114] The applicant also argued that, contrary to the vice-chair's finding, the commissioner did not consult with the council prior to terminating the applicant's appointment. The vice-chair found that while the commissioner had decided to terminate prior to consulting, he did not formally do so until after consulting, in compliance with the PSA. In my view, there is a sufficient evidentiary basis for this finding of fact. But even if the applicant is correct that this amounts to a violation of the PSA, the vice-chair's finding that the commissioner's did not have a racial aspect was reasonable and entitled to deference.

Was race a factor in the termination of the applicant's appointment as a First Nations constable?

[115] On this issue, the applicant argued that it was unreasonable for the vice-chair to find that race was not a factor in the termination of the applicant's appointment as a First Nations constable. The applicant argues that the vice-chair compartmentalized the evidence and did not draw an inference that race was a factor based on the whole of the evidence. The applicant alleges that the lack of a hearing or other procedural protections provided to the applicant, the alleged unfairness of the investigation into his conduct, the commissioner's attitude, and the fact that the commissioner initially suspended the applicant before consulting with the council contrary to s. 54(4) of the PSA imply that race was a factor in the termination of the applicant.

[116] I content myself with saying that the vice-chair's findings of fact in this regard are reasonable and entitled to deference. [page130]

Was the suspension or termination of the applicant an act of "reprisal" under the Code?

[117] The vice-chair rejected this argument on the basis that the applicant was not asserting his rights under the Code when he spoke to the press. She said that the applicant was clear in his evidence that he did not have a complaint as an individual officer; his complaint was systemic in nature. The vice-chair acknowledged that some systemic complaints may involve individual complaints of discrimination, but concluded that is not the case here. The applicant's police resourcing complaint was not an assertion of his rights under the Code. In fact, the applicant himself did not see the police resourcing complaint as a human rights issue. The consistent response of his legal counsel, both in correspondence and in litigation documents, was that the suspension was illegal because the statutory requirement to consult with the council had not been met.

[118] The applicant also argued his suspension was in reprisal for policing the occupation of the quarry in a culturally sensitive manner. The vice-chair found that there was no evidence to support this allegation. To the contrary, she noted, the evidence before the tribunal was to the effect that the OPP thought the TMPS was doing a good job policing the occupation of the quarry. There were no criticisms regarding how the TMPS was performing in this role.

[119] In concluding that the applicant's comments to the press were not an assertion of his human rights under the Code and that, as a result, he did not have access to the protections found in s. 8, once again I content myself with saying that the vice-chair's findings of fact in this regard are reasonable and entitled to deference.

Disposition of the first application

[120] For these reasons, the first application is dismissed.

The Second Application

[121] The second application was brought by the council. It complains that it was directly affected by the decision of the tribunal, specifically its finding that the council was the applicant's employer, and was entitled to notice of the hearing. It says that the failure to give it notice was a denial of natural justice.

Additional background

[122] Chief Maracle was aware from an early date that the applicant was contemplating either a civil action or an application [page131] to the tribunal. Ultimately, the applicant's counsel advised the council that the applicant had decided to commence a proceeding in the tribunal because it was less costly.

[123] On July 7, 2009, the applicant commenced his application to the tribunal. A few months before the hearing, counsel for the applicant asked Chief Maracle to be a witness. He was not specifically told that the identity of the employer would be an issue before the tribunal. Chief Maracle insisted on being summoned because it was the council's position that it was not the applicant's employer. Chief Maracle was aware that the applicant was seeking, as a remedy, reinstatement of his status as a First Nations constable in the Tyendinaga community.

[124] A significant part of the examination-in-chief and cross-examination of Chief Maracle at the hearing related to the employment issue. In an affidavit filed on this application, Chief Maracle swears that during his evidence, the vice-chair asked counsel for Ontario why he was questioning the witness on this issue when it was not an issue she would be deciding.

[125] On the other hand, the affidavit of Samantha Orr, a lawyer who assisted counsel for the Ministry of Community Safety and Correctional Services at the hearing before the tribunal, was filed on this application by the respondents. She took comprehensive notes of the evidence, including the evidence of Chief Maracle, and appended a true copy of her notes of the evidence of Chief Maracle to her affidavit. According to Ms. Orr's notes, Chief Maracle testified that the council has always taken the position that the OPP was the employer of the TMPS constables, despite the clause in the OFNPA that says the council was the employer. During the course of cross-examination of Chief Maracle by counsel for the respondents on the issue of employment, the vice-chair asked why he was exploring who the employer was, and how the resolution of that issue would help her decide whether or not there was discrimination in the decision to suspend and terminate.

[126] I note that the court admitted both affidavits into evidence on the hearing of this application, on the basis that they were relevant to the denial of natural justice argument advanced by the council.

[127] Having reviewed the affidavits with care, I conclude that, while there is very little difference between the evidence of Chief Maracle and the evidence of Ms. Orr on the issue at hand, Ms. Orr's contemporaneous and detailed notes without question better capture the nuances of the discussion between the vice-chair and counsel, and in particular of the purport of the vice-chair's comments. While the vice-chair wanted to know why [page132] Chief Maracle was being cross-examined on the employment issue, and expressed some frustration with not understanding why, she ended by saying words to the following effect:

But you need to convince me, how is it helping me do my job? The issue before me is whether the suspension was D [presumably discrimination].

[128] She in no way precluded the possibility that a determination of the issue might be relevant to the issues at hand.

Analysis

[129] When dealing with an allegation of a denial of natural justice, this court has generally taken the view that there is no applicable standard of review. It is the role of the reviewing court to determine whether the rules of procedural fairness have been respected in the circumstances: see Simcoe Muskoka District Health Unit v. Ontario Nurses Assn., [2011] O.J. No. 3140, 2011 ONSC 4045, 282 O.A.C. 292 (Div. Ct.), at para. 18.

[130] Section 6(1) of the Statutory Powers Procedure Act provides that a party to a proceeding shall be given reasonable notice of the hearing by the tribunal. In addition, the rules of natural justice require that a person liable to be directly affected by a proposed decision be given adequate notice of what is proposed so that they may be in a position to make representations, appear at any hearing and answer the case they have to meet.

[131] However, principles of natural justice do not require formal notice to be given to any person with a general interest in the outcome of the proceeding. A person must be significantly affected or directly and necessarily affected by a decision to have the right to participate: Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission), 1995 102 (SCC), [1995] 2 S.C.R. 781, [1995] S.C.J. No. 55, at para. 31.

[132] In this context, it is important to distinguish between decisions and reasons. The right to notice arises when a decision of a tribunal will significantly (Canadian Union of Public Employees v. Canadian Broadcasting Corp., 1992 108 (SCC), [1992] 2 S.C.R. 7, [1992] S.C.J. No. 47) or directly and necessarily (Telecommunications Workers Union, at para. 31) affect a person. Non-parties whose conduct is raised in the evidence adduced in an administrative proceeding, and which may be commented on in the tribunal's reasons, are not entitled to notice or to participate in the proceeding for that reason alone: see, e.g., Cybulski v. Ontario (Human Rights Commission), 2005 45194 (ON SCDC), [2005] O.J. No. 5213, 206 O.A.C. 216 (Div. Ct.), at para. 7. Finally, there is no absolute duty on a decision maker to afford non-parties the opportunity to be heard before making adverse findings against them: Hurd v. Hewitt (1994), 1994 874 (ON CA), 20 O.R. (3d) 639, [1994] O.J. No. 2552 (C.A.), at paras. 26-28, 41. [page133]

[133] In this case, the vice-chair's decision can have absolutely no effect on the council at all. It is nothing more than a decision that the applicant did not suffer discrimination. Nor can the reasons have any effect on the council. They do not directly determine any of the rights or obligations of the council. They do not require the council to take any action. Moreover, the findings are not binding on any other court, adjudicator or even the tribunal. Another proceeding may yield a different finding. At most, the vice-chair's reasons may prove to be persuasive in some other proceeding. This is very far from a decision of a tribunal that will significantly or directly and necessarily affect the council. The council was not entitled to formal notice of the proceeding before the tribunal.

[134] In any event, even if I am wrong, the council cannot now complain that it was not given notice. In this case, there can be no doubt that the council was aware of the proceeding, that the council was aware that the OPP took the position that the council was the employer, and that, when he was called as a witness at the hearing, Chief Maracle became acutely aware that the identity of the employer was a live issue. But far from asking for standing, and consistent with its approach to that date, the council maintained a firm distance from the matter and stood silent. The council chose not to pursue intervention. It cannot now resile from that position and force a new hearing of this matter, a hearing in which the employment issue will play a small role at best, and will certainly not be dispositive, simply because the council did not receive formal notice. Finally, I note that the council's position on the employment issue was known to the vice-chair, and considered by her.

[135] For these reasons, the second application is also dismissed.

Disposition

[136] Both applications are dismissed. If any party is seeking costs, they may make submissions in writing within 21 days of the release of these reasons. The remaining parties will have an additional 14 days to reply.

Applications dismissed.

Notes

1 Ipperwash Report, Record of Proceedings, p. 1648.

End of Document