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Human Rights (Ont) - Competing Proceedings. Green v. Ontario (Human Rights Tribunal)
In Green v. Ontario (Human Rights Tribunal) (Ont Div Ct, 2025) the Ontario Divisional Court granted a JR, this brought against an HRTO decision "that another proceeding has appropriately dealt with the substance of the application" [HRC s.45.1 'Dismissal in accordance with rules'] - here an OIPRD decision.
The court considers the 'competing proceeding' issue estoppel doctrine from Penner (SCC, 2013), here in a police complaint context:[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.
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[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.
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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.
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[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.
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