Shaw v. Phipps,

• Jurisdiction: Ontario
• Judge: Goudge, Armstrong and Lang, JJ.A.
• Neutral Citation: 2012 ONCA 155
• Citation: 2012 ONCA 155,(2012), 289 O.A.C. 163 (CA),347 DLR (4th) 616,[2012] OJ No 2601 (QL),289 OAC 163,[2012] O.J. No 2601 (QL),347 D.L.R. (4th) 616,289 O.A.C. 163,(2012), 289 OAC 163 (CA)
• Date: 04 November 2011
• Court: Court of Appeal (Ontario)

Shaw v. Phipps (2012), 289 O.A.C. 163 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. MR.008

Michael Shaw and Chief William Blair (appellants) v. Ronald Phipps (respondent) and Toronto Police Services Board (respondent) and Human Rights Tribunal of Ontario (respondent) and Ontario Human Rights Commission (intervenor)

(C53665; 2012 ONCA 155)

Indexed As: Shaw et al. v. Phipps et al.

Ontario Court of Appeal

Goudge, Armstrong and Lang, JJ.A.

March 13, 2012.

Summary:

A black letter carrier (Phipps) occasionally delivered the mail in an affluent Toronto neighbourhood hit by break-ins suspected of having been perpetrated by whites. When Phipps was on duty in the neighbourhood, police officer Shaw stopped him, questioned him and made inquiries respecting his identity and his purposes. No other person in the neighbourhood was questioned or inquired on. Phipps filed a racial discrimination complaint with the Ontario Human Rights Tribunal. An adjudicator allowed the complaint, finding that Shaw had discriminated against him on the basis of race. The Tribunal also held that the Toronto Police Services Board (TPSB) and the Chief of Police were liable for Shaw's discriminatory conduct. The Tribunal awarded Phipps $10,000 as monetary compensation for the loss arising out of the infringement of the Human Rights Code, including compensation for injury to dignity, feelings and self-respect. The adjudicator refused to make an order to ensure future compliance, given efforts by the Toronto Police Service, the TPSB and the Chief of Police to reduce the occurrence of racial discrimination in policing. The adjudicator also held that Phipps had failed to prove his other claims for monetary compensation. Shaw and the Chief of Police applied for judicial review on the liability issue. Phipps applied for judicial review on the remedy issue.

The Ontario Divisional Court, Nordheimer, J., dissenting on the liability issue, in a decision reported 271 O.A.C. 305, dismissed the applications. Shaw and the Chief of Police appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 7070.3

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaint against police - A black letter carrier (Phipps) occasionally delivered the mail in an affluent Toronto neighbourhood hit by break-ins suspected of having been perpetrated by whites - When Phipps was on duty in the neighbourhood, police officer Shaw stopped him, questioned him and made inquiries respecting his identity and his purposes - No other person in the neighbourhood was questioned or inquired on - Upon a complaint by Phipps, an Ontario Human Rights Tribunal adjudicator found that Shaw had discriminated against him on the basis of race - Shaw and the Chief of Police sought judicial review, arguing that the adjudicator had failed to consider the unique statutory and common law duties of police officers - The reviewing court rejected the argument and dismissed the application - The court rejected the applicants' suggestion that the adjudicator should have embarked on an analysis appropriate to negligence cases involving police officers - Its task was to determine whether the powers exercised by this police officer in carrying out his duty complied with the Human Rights Code (Ont.) - The Ontario Court of Appeal upheld the decision - See paragraphs 37 to 42.

Civil Rights - Topic 7110

Federal, provincial or territorial legislation - Practice - Evidence and proof - A black letter carrier (Phipps) occasionally delivered the mail in an affluent Toronto neighbourhood hit by break-ins suspected of having been perpetrated by whites - When Phipps was on duty in the neighbourhood, police officer Shaw stopped him, questioned him and made inquiries respecting his identity and his purposes - No other person in the neighbourhood was questioned or inquired on - Upon a complaint by Phipps, an Ontario Human Rights Tribunal adjudicator found that Shaw had discriminated against him on the basis of race - The adjudicator did not make a specific finding that Phipps had proved a prima facie case on a balance of probabilities - The reviewing court upheld the decision - Shaw and the Chief of Police appealed, arguing as follows: (1) the Tribunal "skipp[ed] over the requirement ... [to] establish a connection [or nexus] between" Phipps's colour and his treatment by Shaw - Shaw and the Chief of Police alleged that no such connection was available on the record; (2) the Tribunal did not properly articulate or make the required finding that the prima facie test was met; and (3) the adjudicator was obliged to declare whether the prima facie test was met - The Ontario Court of Appeal rejected the three arguments and dismissed the appeal - (1) The adjudicator examined the evidence on the connection issue with care and linked that evidence to her conclusion that Phipps's colour "in an affluent neighbourhood was a factor, a significant factor and probably the predominant factor, whether consciously or unconsciously, in Constable Shaw's actions" - (2) The adjudicator expressly referred to the need to establish a "prima facie case of discrimination" - (3) No authority was provided respecting the alleged requirement that the adjudicator declare that the prima facie test was met at the conclusion of Phipps's case and before she allowed Shaw to give his defence - See paragraphs 16 to 28.

Civil Rights - Topic 7110

Federal, provincial or territorial legislation - Practice - Evidence and proof - A black letter carrier (Phipps) occasionally delivered the mail in an affluent Toronto neighbourhood hit by break-ins suspected of having been perpetrated by whites - When Phipps was on duty in the neighbourhood, police officer Shaw stopped him, questioned him and made inquiries respecting his identity and his purposes - No other person in the neighbourhood was questioned or inquired on - Upon a complaint by Phipps, the Ontario Human Rights Tribunal found that Shaw had discriminated against him on the basis of race - The Tribunal held that Shaw could not rebut the inference of discrimination just by offering "any rational alternative explanation" - The reviewing court upheld the decision - Shaw and the Chief of Police appealed, arguing that the adjudicator's approach to the discrimination test improperly placed the onus on him to disprove discrimination - The Ontario Court of Appeal rejected the argument and dismissed the appeal - The adjudicator understood that Phipps was required to establish discrimination and only if he did so would it be necessary for Shaw to provide a rational and credible explanation for his actions other than discrimination - The court added that proof of Shaw's subjective intention to discriminate was not a necessary component of the test - See paragraphs 29 to 36.

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. 10].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, consd. [para. 12].

Tranchemontagne et al. v. Disability Support Program (Ont.) (2010), 269 O.A.C. 137; 2010 ONCA 593, refd to. [para. 12].

Dang v. PTPC Corrugated Co., [2007] B.C.H.R.T.D. No. 27; 2007 BCHRT 27, refd to. [para. 14].

Radek v. Henderson Development (Canada) Ltd. (No. 3), [2005] B.C.H.R.T.D. No. 302; 2005 BCHRT 302, refd to. [para. 34].

Kampe v. Toronto Police Services Board, [2008] O.H.R.T.D. No. 302; 2008 HRTO 304, refd to. [para. 38].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 39].

Counsel:

Kevin A. McGivney and Lisa C. Cabel, for the appellants;

Jayson Thomas, for the respondent, Ronald Phipps;

Antonella Ceddia, for the respondent, Toronto Police Services Board;

Margaret Leighton and Rochelle Fox, for the respondent, Human Rights Tribunal of Ontario;

Cathy Pike, for the intervenor, Ontario Human Rights Commission.

This appeal was heard on November 4, 2011, by Goudge, Armstrong and Lang, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Lang, J.A., and released on March 13, 2012.