CITATION: Green v. Ontario (Human Rights Tribunal), 2025 ONSC 6223
DIVISIONAL COURT FILE NO.: 148/25
DATE: 2025/11/07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Sproat and Lococo JJ.
BETWEEN:
Matthew Green
Applicant
– And –
Human Rights Tribunal Of Ontario, Hamilton Police Services Board, And Andrew Pfeifer
Respondents
– And –
Ontario Human Rights Commission
Intervenor
Nick Papageorge, Wade Poziomka and Justyna Zukowski for the Applicant
Glenn P. Christie and Kathryn L. Meehan, for the Respondents Hamilton Police Services Board and Andrew Pfeifer
Mindy Noble, for the Respondent Human Rights Tribunal of Ontario
Nina Gandhi and Alisha Krishna, for the Intervenor
HEARD at Toronto: October 7, 2025
H. Sachs J.
Overview
[1] Matthew Green, who is Black, alleges that he was discriminated against because Constable Pfeifer of the Hamilton Police subjected him to racial profiling. Mr. Green filed a complaint with the former Office of the Independent Review Director (the “OIPRD”) and with the Human Rights Tribunal of Ontario (the “HRTO”). The HRTO complaint was deferred while the OIPRD complaint proceeded to completion.
[2] As a result of the OIPRD complaint, a disciplinary hearing was conducted under the Police Services Act, R.S.O. 1990, c. P. 15 (the “PSA”). On April 27, 2018, the Hearing Officer determined that Constable Pfeifer had not engaged in discreditable conduct.
[3] Mr. Green reactivated his human rights complaint, but the HRTO dismissed it under s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.15 (the “Code”). In its decision (the “Decision”), the HRTO found “that another proceeding has appropriately dealt with the substance of the application.”
[4] On February 3, 2025, the Tribunal dismissed Mr. Green’s request to reconsider the Decision (the “Reconsideration Decision”).
[5] This is an application by Mr. Green to judicially review the Decision and the Reconsideration Decision. The basis for the application is that the Tribunal failed to apply or reasonably engage with the decision by the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125 (“Penner”) or with the HRTO jurisprudence since Penner. The HRTO has consistently applied Penner to find that it would be unfair to dismiss human rights complaints by operation of s. 45.1 based on findings in a PSA process. This rendered the decisions unreasonable.
[6] The Ontario Human Rights Commission was granted intervenor status and filed material supporting Mr. Green’s position on this application.
[7] For the reasons that follow I would allow the application.
Factual Background
[8] On April 16, 2016, Constable Pfeifer engaged in what Mr. Green (who was a municipal counsellor) alleges is racial profiling by stopping and psychologically detaining him without reasonable grounds.
[9] Mr. Green made a complaint about the incident to the OIPRD, which eventually led to a disciplinary hearing into Constable Pfeifer’s conduct under the PSA. Pursuant to the PSA, the Chief of the Hamilton Police Service selected both the prosecutor and the Hearing Officer for the hearing. (The PSA was repealed and replaced in 2024 by the Community Safety and Policing Act, 2019, S.O. 2019, c. 1, Sched. 1., which requires adjudicators to be appointed by the chair of the Ontario Police Arbitration and Adjudication Commission, not the Chief of Police).
[10] On April 25, 2017, Mr. Green filed a complaint with the HRTO about the incident. In that complaint, he alleged that the incident was a manifestation of systemic racism, and he sought several public interest remedies. The HRTO proceeding was deferred on consent pending completion of the PSA process.
[11] On April 27, 2018, after a five-day PSA hearing in which Mr. Green provided testimony, the Hearing Officer found that Constable Pfeifer had not engaged in discreditable conduct. Essentially, he found that the officer’s decision to stop and question Mr. Green was driven by a concern for his well-being and not by the fact that he was Black.
[12] Mr. Green reactivated his HRTO complaint, and the police Respondents requested a dismissal of this complaint pursuant to s. 45.1 of the Code.
[13] On November 23, 2024, the HRTO dismissed Mr. Green’s complaint (reported at 2024 HRTO 1684), because it found that the PSA proceeding had appropriately dealt with the substance of that complaint and that to do otherwise would run the risk of inconsistent findings of fact and undermine the administration of justice by permitting relitigation of the same issue.
[14] Mr. Green requested that the Tribunal reconsider its decision, but that request was denied on February 3, 2025 (reported at 2025 HRTO 281).
[15] On February 27, 2025, Mr. Green filed his application for judicial review seeking to quash both the Decision and the Reconsideration Decision.
The HRTO Decision
[16] The HRTO found that the facts and the issues in both the OIPRD complaint and HRTO complaint “significantly” overlapped. In both proceedings, Mr. Green was alleging that Constable Pfeifer discriminated against him when he was stopped and questioned. The Hearing Officer in the PSA proceeding heard evidence as to what happened that day and made findings of fact that led him to conclude that the officer had good reason to conduct a “well-being check of [Mr. Green].” For the HRTO to preside over a hearing that would essentially relitigate the same evidence would run the risk of inconsistent findings of fact or law, which could bring the administration of justice into disrepute. It was not the HRTO’s role to sit in appeal of the decisions of other administrative decision-makers who deal with discrimination complaints.
Issues Raised
[17] Mr. Green raised two issues on this application:
Did the Tribunal unreasonably fail to apply s. 45.1 of the Code in light of the common law doctrines and jurisprudence governing the application of that section when dealing with HRTO complaints that have been the subject of a PSA proceeding?
Are the Tribunal’s reasons transparent, intelligible and justified?
Standard of Review
[18] There is no dispute that the applicable standard of review is reasonableness and that the HRTO’s decisions are owed considerable deference by this court.
[19] The discretionary power under s. 45.1 and the common law doctrines underlying it are designed to balance finality in litigation with fairness to the parties. In some cases, fairness means not allowing one party to relitigate an issue that has already been decided by another tribunal. In others, fairness demands not using the findings of a vastly different proceeding to bar a subsequent one that involves the same issue: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.
[20] In this case, according to Mr. Green, the Tribunal considered the first kind of fairness without considering the second. This is particularly problematic since both the Supreme Court of Canada and the Tribunal have consistently determined that it would be unfair to use the findings in a PSA proceeding based on discrimination to bar an HRTO complaint based on the same conduct. A decision that departs from established jurisprudence, including the tribunal’s own jurisprudence, without an explanation, cannot be reasonable: Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. at paras. 111-112 and 131.
[21] Mr. Green also alleges that the Tribunal failed to meaningfully grapple with his arguments about the second kind of fairness. In fact, it misapprehended his argument. According to him, the Tribunal’s decisions do no more than “repeat statutory language, summarize arguments made and then state a peremptory conclusion”: Vavilov, para. 102. As such, they do not assist the court in understanding the rationale behind its conclusion that dismissing the complaint would not be unfair. Therefore, Mr. Green argues that the Tribunal’s decisions do not meet the standard of reasonableness.
Analysis
The Governing Jurisprudence
[22] Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
[23] In Penner, the Appellant was arrested for disruptive behaviour in an Ontario courtroom. He filed a complaint against two police officers under the PSA alleging that he was unlawfully arrested and that he was unnecessarily subjected to force. He also sued the officers civilly for damages relating to the same incident. The officers were found not guilty of misconduct in the PSA hearing. The police moved to strike the civil action on the basis of issue estoppel. The Superior Court struck the action, and the Court of Appeal upheld that decision, finding that applying the doctrine would not work an injustice in the Appellant’s case. The Appellant appealed to the Supreme Court of Canada.
[24] The majority of the Supreme Court allowed the appeal. In doing so, it recognized the consequences to the administration of justice of relitigation – it wastes resources, it makes it difficult for the parties to rely on the results of litigation, it exposes the parties to additional costs, and it risks inconsistent adjudicative determinations: Penner, para. 28. For this reason, the common law has developed a number of doctrines to limit relitigation. Issue estoppel is one of them.
[25] Even if the necessary preconditions exist to apply the doctrine of issue estoppel, the court retains a discretion not to apply the doctrine if doing so would work an injustice: Penner, paras. 29-30. The doctrine applies to administrative decisions: Penner, para. 31.
[26] In Penner, the Supreme Court agreed that all of the preconditions for applying the doctrine of issue estoppel existed. Therefore, it focused on “the Court of Appeal’s exercise of discretion in determining whether it would be unjust to apply the doctrine of issue estoppel in this case”: Penner, para. 36.
[27] The Supreme Court identified two ways (“which overlap and are not mutually exclusive”) in which unfairness can arise. The first is if the prior proceedings were unfair to a party (which was not alleged in Penner and is not alleged in this case). The second is described as follows:
[42] The second way in which the operation of issue estoppel may be unfair is not so much concerned with the fairness of the prior proceedings but with the fairness of using their results to preclude the subsequent proceedings…This may occur, for example, where there is a significant difference between the purposes, processes or stakes involved in the two proceedings. [Emphasis in original.]
[28] The wording of the statute in setting up the administrative scheme and the purpose of that scheme are two factors that are highly relevant to the second type of fairness analysis. If little is at stake for the complainant in the prior proceeding they may have less incentive to vigorously participate in it: Penner, para. 45. As well, “[t]o apply issue estoppel based on a proceeding in which a party reasonably expected that little was at stake risks inducing future litigants to either avoid the proceeding altogether or to participate more actively and vigorously than would otherwise make sense. This could undermine the expeditiousness and efficiency of administrative regimes and therefore undermine the purpose of creating the tribunal.”: Penner, para. 46.
[29] The Supreme Court found that while the Court of Appeal was correct in finding that the PSA proceeding in Penner was a fair one and that the Appellant meaningfully participated in that proceeding, it also found that the Court of Appeal failed to focus on fairness in the second sense.
[30] The Supreme Court then turned its mind to whether the legislative scheme that governed the PSA proceeding intended to foreclose parallel proceedings and found that it did not. The Court also found that the purpose of the PSA proceeding was very different than the purpose of a civil action. It noted that “a person in Mr. Penner’s position might well think it unlikely that a proceeding in which he or she had no financial stake could preclude a claim for damages in his or her civil action.”: Penner, para. 58. It found that the two proceedings have a different standard of proof. In a PSA proceeding, the prosecutor must establish misconduct on the higher standard of “clear and convincing evidence.” In a civil proceeding, the standard of proof is balance of probabilities. Penner, at para. 60.
[31] Finally, the Supreme Court found that the role of the Chief of Police in the PSA proceeding was an important consideration in assessing the fairness of “using the results of the disciplinary proceedings to preclude Mr. Penner’s civil claims”: Penner, para. 65. Among other things, the Chief of Police appoints the investigator, the prosecutor and the hearing officer. Therefore, “applying issue estoppel against the complainant here had the effect of permitting the Chief of Police to become the judge of his own case, with the result that his designate’s decision had the effect of exonerating the Chief and the police service from civil liability. In our view, applying issue estoppel here is a serious affront to basic principles of fairness”: Penner, para. 66.
[32] Taking into account all of these factors, the Supreme Court allowed the appeal and overturned the Court of Appeal’s finding that issue estoppel could be applied to preclude Mr. Penner’s claim for damages.
[33] In Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, 78 C.H.R.R. 314, the HRTO convened a panel of three adjudicators to review three decisions where the Tribunal had dismissed human rights applications pursuant s. 45.1 on the basis that the same complaint had been appropriately dealt with pursuant to the PSA process. All of these decisions predated the Supreme Court’s decision in Penner.
[34] In Claybourn, the HRTO panel applied Penner and found that s. 45.1 should not have been applied to dismiss the applications before it. The HRTO found that the argument about the reasonable expectation of the parties applied equally to human rights complaints as they did to civil actions. Parties would not reasonably expect that making a complaint against a police officer, which could result in a disciplinary hearing for the police officer, would preclude the complainant from making a complaint to the human rights tribunal for the same conduct. A human rights complainant can seek no personal or systemic remedy in the public complaints process under the PSA. In addition, the HRTO found that all of the policy considerations that the Supreme Court applied in Penner were equally applicable to the human rights applications before it. The Divisional Court judicially reviewed and affirmed the Claybourn approach in Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085, 125 O.R. (3d) 732.
[35] The decision that is the subject of this application for judicial review is the first and only case since Penner where the HRTO has dismissed a human rights application under s. 45.1 because of a previous police disciplinary proceeding.
The Position of the Respondents
[36] The Respondents emphasize that the Decision is the result of an exercise of discretion and that there is no precedent that states that the results of a prior PSA proceeding can never form the basis of a dismissal of a human rights application under s. 45.1. In fact, both the Supreme Court of Canada and the HRTO have been explicit that no such rule exists, and each case must be assessed on a case-by-case basis.
[37] According to the Respondents, Mr. Green and the Intervenor, the OHRC, are effectively asking the Tribunal to apply an absolute rule.
[38] The Respondents also assert that the Tribunal did consider fairness, including the second kind of fairness in its decision. It cited all of the relevant jurisprudence and was clearly aware of the principles emerging from that jurisprudence. However, it decided, based on the facts before it, that in this case, it would not be unfair or unjust to dismiss Mr. Green’s complaint.
The Tribunal’s treatment of established jurisprudence was not reasonable
[39] As noted above, an administrative decision that “fail[s] to explain or justify a departure from a binding precedent in which the same provision had been interpreted” may be unreasonable: Vavilov, para. 112. While administrative decision makers are not bound by their previous decisions in the way that courts are, they must be concerned with the consistency of their decisions. “Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker – expectations that do not evaporate because the parties are not before a judge”: Vavilov, para. 129. Thus, where a decision maker does depart from established internal authority “it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable”: Vavilov, para. 131.
[40] At para. 20 of the Decision, the Tribunal acknowledges the Applicant’s argument that there had to be a “compelling reason” to depart from the Tribunal’s jurisprudence that a PSA proceeding was not a proper basis for dismissing a human rights complaint under s. 45.1. I note, however, that the Tribunal frames the Applicant’s argument as being that it can never form the basis for a dismissal. It is clear that this was not the Applicant’s argument, nor could it be as Tribunal jurisprudence adopts the Supreme Court’s position in Penner that each case must be analyzed on its own facts.
[41] At para. 22 of the Decision, the Tribunal summarizes the Respondents’ arguments as to why there were compelling reasons to depart “from the Penner/Claybourn approach. The arguments were:
(a) “Penner involved Issue Estoppel not s. 45.1 of the Code;
(b) the Supreme Court in Penner found that Issue Estoppel was met but it was not fair to apply their discretion in the circumstances. Importantly, the Court expressly stated at para. 35, that there was no rule precluding the applicability of issue estoppel to police disciplinary hearing; and
(c) the instant application is the exception that was clearly recognized by the Divisional Court in De Lottinville and Claybourn, the applicants filed complaints pursuant to the PSA, which resulted in administrative investigations conducted by the OIPRD. However, an OIPRD investigation is more akin to an administrative review process; in those cases, no hearing with viva voce sworn evidence occurred. Unlike De Lottinville and Claybourn, the applicant in the instant Application participated in a full hearing process represented by legal counsel, testimony heard from five witnesses, which both parties were entitled to cross-examine, and documentary evidence was submitted.”
[42] At para. 23 of the Decision, the Tribunal summarizes the Respondents’ submission that there was no suggestion that the prior proceeding was unfair and at para. 24, the Tribunal notes their submission that Mr. Green was seeking no personal remedy before the human rights tribunal.
[43] Other than reciting the parties’ arguments, the Decision is not explicit as to which of those arguments it adopts or rejects. It then goes on to make its finding that the facts and issues in both proceedings overlap and that relitigation should be avoided. These findings deal with the first aspect of fairness that must be applied in relation to a s. 45.1 application. They do not deal with the second.
[44] In its Reconsideration Decision, the Tribunal, with no analysis, rejected the suggestion that its Decision was in conflict with established jurisprudence and found that the Applicant was using the reconsideration process to reargue his case, which was not an appropriate basis for reconsideration.
[45] Thus, I find that the Applicant is correct that the Tribunal did not meet its burden to justify departing from its own internal jurisprudence since the Penner decision. This jurisprudence goes much further than stating that each case must be decided on its own facts. It finds that it would be unfair to use a PSA proceeding as the basis for a dismissal under s. 45.1 because:
the purposes of the two proceedings are very different;
given the statutory language of the PSA, it would not be within the reasonable expectation of the parties that a proceeding under the PSA would limit parallel proceedings based on the same facts;
the standard of proof for establishing discrimination in a PSA proceeding is higher than the standard of proof for establishing discrimination in a human rights proceeding;
applying s. 45.1 could undermine the purpose of the PSA by discouraging people from making complaints against the police; and
given the role of the Chief of Police in the PSA process, using a finding under that process to bar a human rights complaint would be unfair.
[46] All of these factors were present in the instant case and none of them were addressed.
[47] Even if the Decision can be read as impliedly accepting the Respondents’ arguments as to why the Tribunal departed from the established jurisprudence, which I do not accept, that argument also has no merit. The fact that Penner involved issue estoppel and not s. 45.1 is of no consequence, since s. 45.1 is essentially a statutory codification of the common law doctrine of issue estoppel. Moreover, since the Supreme Court’s decision in Penner, all of the Tribunal jurisprudence with respect to s. 45.1 (except for the instant case) has applied the reasoning in Penner. While there is no absolute rule that says that Penner applies in every s. 45.1 application based on a prior PSA proceeding, this does not mean that each adjudicator can disregard the second type of unfairness that the Supreme Court and the Tribunal jurisprudence have identified.
[48] The fact that Mr. Green is not claiming any damages in the human rights complaint ignores the fact that he is claiming systemic remedies directed at remedying racial profiling in the Hamilton Police force. These remedies were not available in the PSA proceedings. The rights that the Code protects are quasi-constitutional and one of the goals of human rights proceedings is to prevent discriminatory behaviour. Systemic remedies are an important means of achieving that goal.
[49] Finally, while Claybourn did not involve a full PSA hearing, Penner did, and it is Penner’s approach to fairness that the Tribunal has consistently adopted in its jurisprudence concerning s. 45.1.
The Tribunal’s reasons are not transparent, intelligible or justifiable
[50] As the above summary illustrates, the Tribunal’s reasons, when it came to the second kind of fairness, just repeated the statutory language, summarized the parties’ arguments and then stated its conclusion that it would not be unfair to dismiss Mr. Green’s application. As Vavilov anticipated, this left the Court with no understanding as to the Tribunal’s rationale for its decision with respect to the central issue in dispute. By failing to meaningfully grapple with Mr. Green’s arguments on this issue, the Tribunal’s decision does not meet the threshold of reasonableness, which requires that the reasoning process leading to a decision be transparent, intelligible and justified.
Conclusion
[51] For these reasons, the application for judicial review is granted. The Decision and the Reconsideration Decision are set aside and the matter is sent back to the Tribunal to be heard by a different adjudicator. None of the parties to the application seek costs.
Sachs J
I agree _______________________________
Sproat J
I agree _______________________________
Lococo J
Released: November 7, 2025
CITATION: Green v. Ontario (Human Rights Tribunal), 2025 ONSC 6223
DIVISIONAL COURT FILE NO.: 148/25
DATE: 2025/11/07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Sproat and Lococo JJ.
BETWEEN:
Matthew Green
Applicant
– and –
Human Rights Tribunal of Ontario, Hamilton Police Services Board, and Andrew Pfeifer
Respondents
– and –
ontario human rights commission
Intervenor
REASONS FOR JUDGMENT
H. Sachs J.
Date: November 7, 2025