In the past, people who experienced discrimination or harassment by police had to decide whether to file an officer misconduct complaint under the Police Services Act (“PSA”) or an application with the Human Rights Tribunal of Ontario (“HRTO”). The PSA provides a public complaints process, revised through amendments in 2009 which also established the Office of the Independent Police Review Director (“OIPRD”). If they filed both, there was a real risk that their HRTO application would be dismissed.
In de Lottinville, the HRTO considered the interpretation and application of section 45.1 of the Human Rights Code (the “Code”) in the context of previously filed public complaints about officer misconduct under the PSA. Section 45.1 provides that the HRTO may dismiss an application, in whole or in part, if it is “of the opinion that another proceeding has appropriately dealt with the substance of the application”.
The HRTO considered police complaints filed by three applicants: Dean de Lottinville, Durrell Claybourn and Dave Ferguson. Mr. de Lottinville’s police complaint was filed prior to the amendments of the PSA, whereas Mr. Claybourn and Mr. Ferguson’s police complaints were filed after the amendments. All three of their HRTO applications alleged racial discrimination by the police.
Prior to the hearing, the African Canadian Legal Clinic, the Metro Toronto Chinese & Southeast Asian Legal Clinic and the South Asian Legal Clinic of Ontario (the “Coalition”), the Ontario Human Rights Commission (the “Commission”), and the OIPRD were permitted to intervene. Mr. de Lottinville was represented by the Human Rights Legal Support Centre.
In its precedent-setting decision, a three-person panel of the Tribunal found that section 45.1 should not be applied to dismiss an HRTO application on the basis that the allegations of police misconduct underlying the application have been addressed through a PSA complaint.
The Ontario Provincial Police filed an application for judicial review at the Divisional Court challenging the HRTO’s decision. The Commission is intervening again. At issue is the interpretation of section 45.1 of the Code and access to justice for human rights claimants, specifically, the right of human rights claimants to pursue officer misconduct complaints under the PSA and human rights applications at the HRTO. The Commission will also be making submissions in Kodama, another judicial review application dealing with the interpretation of section 45.1, but in the context of complaints to the College of Physicians and Surgeons of Ontario. Both cases will be heard on April 20-22, 2015 at Osgoode Hall, 130 Queen Street West in Toronto.