Aiken v. Ottawa Police Services Board et al., 2015 ONSC 3793

JudgeLederman, Molloy and Corbett, JJ.
CourtSuperior Court of Justice of Ontario (Canada)
Case DateApril 13, 2015
JurisdictionOntario
Citations2015 ONSC 3793;(2015), 337 O.A.C. 157 (DC)

Aiken v. Police Services Bd. (2015), 337 O.A.C. 157 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AU.002

Chad Aiken (applicant) v. Ottawa Police Services Board, Ottawa Police Association, Ontario Human Rights Commission, and Human Rights Tribunal of Ontario (respondents)

(DC-554/13; 2015 ONSC 3793)

Indexed As: Aiken v. Ottawa Police Services Board et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Lederman, Molloy and Corbett, JJ.

June 15, 2015.

Summary:

Aiken, an African-Canadian male, filed a human rights complaint in 2005, alleging that he had been discriminated against by the Ottawa Police Service. He had been driving his mother's Mercedes when he was stopped by police. He claimed that he was a "victim of discrimination, racial profiling and systemic anti-Black racism". A remedy sought by the Human Rights Commission was an order requiring the Ottawa Police to collect race-based data for all "traffic stops" for three years. Following mediation (before the same adjudicator who would conduct the hearing), the Commission and the Ottawa Police entered into an agreement with respect to the issue of data collection on traffic stops. The Commission withdrew as a party. Aiken did not agree to the proposed resolution. The adjudicator ordered that there would be no hearing, and disposed of the complaint in accordance with the agreement reached between the Commission and the Ottawa Police. Aiken applied for judicial review.

The Ontario Divisional Court, on the standard of reasonableness, set aside the Tribunal's decision, and remitted the matter to the Tribunal for hearing before a different adjudicator.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - Aiken, an African-Canadian male, filed a human rights complaint in 2005, alleging that he had been discriminated against by the Ottawa Police Service - He had been driving his mother's Mercedes when he was stopped by police - A remedy sought by the Human Rights Commission was an order requiring the Ottawa Police to collect race-based data for all "traffic stops" for three years - The Commission and the Ottawa Police entered into an agreement with respect to the issue of data collection - Aiken did not agree to the proposed resolution - The adjudicator ordered that there would be no hearing, and disposed of the complaint in accordance with the agreement reached between the Commission and the Ottawa Police - Aiken applied for judicial review - The Ontario Divisional Court held that the nature of the hearing in this case fully complied with principles of procedural fairness and natural justice - "[S]ubstantial systemic remedies had been agreed upon between the Ottawa Police and the Commission. All that remained was the extent of those systemic remedies. ... Subjectively, Mr. Aiken may have had an expectation of a full hearing. ... However, 'legitimate' expectations must also be objectively reasonable. In light of the greater flexibility in the new regime and the significant reduction in issues to be determined in this particular complaint, a more truncated proceeding could and should have been anticipated. ... Mr. Aiken knew the case he had to meet and was given a full opportunity to present written evidence and both written and oral submissions." - See paragraphs 30 to 35.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See Administrative Law - Topic 2266 ].

Administrative Law - Topic 8930

Boards and tribunals - Powers - Procedure - [See Administrative Law - Topic 2266 ].

Administrative Law - Topic 9013.1

Boards and tribunals - Jurisdiction - General - Human rights legislation - Aiken, an African-Canadian male, filed a human rights complaint in 2005, alleging that he had been discriminated against by the Ottawa Police Service - The discriminatory act involved a vehicular traffic stop (Aiken, then 18, had been driving a Mercedes) - A remedy sought by the Human Rights Commission was an order requiring the Ottawa Police to collect race-based data for all "traffic stops" for three years - The Human Rights Commission accepted a compromise, and withdrew as a party - Aiken did not agree to the proposed resolution - An adjudicator on the Human Rights Tribunal dismissed Aiken's complaint - The adjudicator rejected one of Aiken's key requests (data collection for pedestrian stops) on the grounds that she had no jurisdiction to order it and that permitting such a request would cause extreme prejudice to the Ottawa Police - The Ontario Divisional Court, on the standard of reasonableness, set aside the Tribunal's decision - Aiken was entitled to have his complaint heard on its merits, including what type of systemic remedy would be appropriate - "The cumulative effect of this failure to make an independent assessment and deferring instead to the Commission cannot be said to be reasonable. When this is added to the refusal of other remedies due to speculation about prejudice and a completely unreasonable view of jurisdiction, the entire decision becomes tainted. The Adjudicator seemed to be of the view that if this settlement was good enough for the Commission, she was not going to interfere. That is not, in my view, a reasonable approach to decision-making." - See paragraphs 67 to 69.

Administrative Law - Topic 9052

Boards and tribunals - Jurisdiction of particular boards and tribunals - Provincial human rights commission - [See Administrative Law - Topic 9013.1 ].

Civil Rights - Topic 7046

Federal, provincial or territorial legislation - Commissions or boards - General - Duty of fairness - [See Administrative Law - Topic 2266 ].

Civil Rights - Topic 7063

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Remedies - [See Administrative Law - Topic 9013.1 ].

Civil Rights - Topic 7070.3

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaint against police - [See Administrative Law - Topic 9013.1 ].

Civil Rights - Topic 7109

Federal, provincial or territorial legislation - Practice - Procedure - [See Administrative Law - Topic 2266 ].

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - [See Administrative Law - Topic 9013.1 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 25, footnote 14].

Shaw et al. v. Phipps et al. (2012), 289 O.A.C. 163; 2012 ONCA 155, refd to. [para. 25, footnote 14].

Toronto (City) Police Service v. Phipps - see Shaw et al. v. Phipps et al.

1147335 Ontario Inc. v. Torrejon, [2012] O.A.C. Uned. 195; 2012 ONSC 1978 (Div. Ct.), refd to. [para. 25, footnote 15].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 26, footnote 17].

Toronto Police Association v. Toronto Police Services Board et al. (2013), 311 O.A.C. 1; 2013 ONSC 4511 (Div. Ct.), refd to. [para. 26, footnote 18].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 27, footnote 19].

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 32, footnote 22].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 34, footnote 23].

Statutes Noticed:

Human Rights Code, R.S.O. 1990, c. H-19, sect. 34(1)(a) [para. 23, footnote 9].

Counsel:

Roger Love and Anthony Morgan, for the applicant;

Charles Hofley and Leanne Fisher, for the Ottawa Police Services Board;

Rana Arbabian and Insiya Essajee, for the Ontario Human Rights Commission;

Margaret Leighton and Linda Chen, for the Human Rights Tribunal of Ontario.

This judicial review application was heard on April 13, 2015, in Toronto, Ontario, before Lederman, Molloy and Corbett, JJ., of the Ontario Divisional Court. In reasons written by Molloy, J., the Court delivered the following decision, released on June 15, 2015.

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6 practice notes
  • Table of Cases
    • Canada
    • Irwin Books Racial Profiling and Human Rights in Canada Preliminary Sections
    • 24 June 2018
    ...ADGA Group Consultants Inc v Lane, 2008 CanLII 39605 (Ont Div Ct) ........189 Aiken v Ottawa Police Services Board, 2015 ONSC 3793 (Div Ct) ..................... 119 Armstrong v Anna’s Hair & Spa Inc, 2010 HRTO 1751 ........................................ 190 Arunachalam v Best Buy Canada ......
  • Bias-Neutral Policing: A Police Perspective on the Intersection of Racial Profiling with Modern-Day Policing and the Laws That Govern
    • Canada
    • Irwin Books Racial Profiling and Human Rights in Canada Forms and sector analysis
    • 24 June 2018
    ..., 2009 HRTO 1220; Washington HRTO, above note 38. 40 Nassiah , above note 38. 41 See, for example, Aiken v Ottawa Police Services Board , 2015 ONSC 3793 (Div Ct). Gary V Melanson 120 Services Act investigations and/or hearings. There should always be deference to finding of facts made in re......
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    • 2 November 2020
    ...Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §7:1710. See also Aiken v Ottawa Police Services Board, 2015 ONSC 3793 (Ont. Div. Ct.); Rogier v Halifax (Regional Municipality), 2009 NSSC 14 (NSSC); Dan v Canada (Minister of Citizenship & Immigration), 20......
  • Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 13-12-2019
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    ...concept of proportionality in administrative adjudication was addressed by the Divisional Court in Aiken v. Ottawa Police Services Board, 2015 ONSC 3793 (CanLII). Molloy J., speaking for the Court, discussed the relevant principles in part as follows (paras. In Hryniak v. Mauldin, the Supre......
  • Request a trial to view additional results
4 cases
2 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books Racial Profiling and Human Rights in Canada Preliminary Sections
    • 24 June 2018
    ...ADGA Group Consultants Inc v Lane, 2008 CanLII 39605 (Ont Div Ct) ........189 Aiken v Ottawa Police Services Board, 2015 ONSC 3793 (Div Ct) ..................... 119 Armstrong v Anna’s Hair & Spa Inc, 2010 HRTO 1751 ........................................ 190 Arunachalam v Best Buy Canada ......
  • Bias-Neutral Policing: A Police Perspective on the Intersection of Racial Profiling with Modern-Day Policing and the Laws That Govern
    • Canada
    • Irwin Books Racial Profiling and Human Rights in Canada Forms and sector analysis
    • 24 June 2018
    ..., 2009 HRTO 1220; Washington HRTO, above note 38. 40 Nassiah , above note 38. 41 See, for example, Aiken v Ottawa Police Services Board , 2015 ONSC 3793 (Div Ct). Gary V Melanson 120 Services Act investigations and/or hearings. There should always be deference to finding of facts made in re......

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