Shaw et al. v. Phipps et al., (2010) 271 O.A.C. 305 (DC)

• Judge: J. Wilson, Swinton and Nordheimer, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: July 06, 2010
• Jurisdiction: Ontario
• Citations: (2010), 271 O.A.C. 305 (DC);2010 ONSC 3884

Shaw v. Phipps (2010), 271 O.A.C. 305 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.025

Michael Shaw and Chief William Blair (applicants) v. Ronald Phipps and Toronto Police Services Board (respondents) and Ontario Human Rights Commission (Intervenor)

(577/09)

Toronto Police Services Board (applicant) v. Ronald Phipps, Michael Shaw, William Blair and Ontario Human Rights Commission (respondents)

(582/09)

Ronald Phipps (applicant) v. Michael Shaw, William Blair and Toronto Police Services Board (respondents)

(285/10; 2010 ONSC 3884)

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

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, Swinton and Nordheimer, JJ.

October 6, 2010.

Summary:

Black postman 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. The Tribunal 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 Tribunal 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 Tribunal 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, dismissed the applications.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See first Civil Rights - Topic 7115 ].

Civil Rights - Topic 1170

Discrimination - Remedies - Hurt feelings or mental anguish - Compensation - Black postman 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 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 Tribunal refused to make an order to ensure future compliance, given efforts by the Toronto Police Service, the Toronto Police Services Board and the Chief of Police to reduce the occurrence of racial discrimination in policing - The Tribunal also held that Phipps had failed to prove his other claims for monetary compensation - The Ontario Divisional Court upheld the Tribunal's decision on remedy as reasonable, given the evidence before it - See paragraphs 122 to 127.

Civil Rights - Topic 7070.3

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaint against police - Black postman 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 - Shaw and the Chief of Police sought judicial review, arguing that the Tribunal had failed to consider the unique statutory and common law duties of police officers - The Ontario Divisional Court rejected the argument and dismissed the application - The court rejected the applicants' suggestion that the Tribunal 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.) - See paragraphs 86 to 97.

Civil Rights - Topic 7070.3

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaint against police - Section 46.3(1) of the Human Rights Code (Ont.) provided that the actions of an employee in the course of his employment with a corporation, trade union, trade or occupational association, unincorporated association or employers' organization were deemed to be the actions of those employers - Section 50(1) of the Police Services Act (Ont.) provided that the board or the Ontario Crown was liable for the torts committed by police officers in the course of their employment - The Ontario Human Rights Tribunal ruled that the Toronto Police Services Board (TPSB) was liable for a police officer's discriminatory actions because they had been carried out in the course of his employment - The Ontario Divisional Court upheld the decision, ruling that the Tribunal had correctly ruled that s. 46.3(1) of the Human Rights Code was applicable to police services boards - See paragraphs 105 to 121.

Civil Rights - Topic 7110

Federal, provincial or territorial legislation - Practice - Evidence and proof - Black postman 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 did not make a specific finding that Phipps had proved a prima facie case on a balance of probabilities - Shaw and the Chief of Police sought judicial review, arguing that the Tribunal had failed to require Phipps to establish a prima facie case - The Ontario Divisional Court dismissed the application - It appeared from the oral submissions on behalf of Shaw and the Chief that the elements of a prima facie case might have been conceded by their counsel - These elements included Phipps' employment and uniform, his race, and the fact that no one else in the neighbourhood was questioned or inquired on - The Tribunal focussed on whether race or colour played a role in Shaw's decision to investigate Phipps - Finally, if the transcript did not support the conclusions that counsel had conceded the element of a prima facie case, the evidence before the Tribunal was sufficient to support a finding of a prima facie case - See paragraphs 44 to 63.

Civil Rights - Topic 7110

Federal, provincial or territorial legislation - Practice - Evidence and proof - Black postman 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 Ontario Divisional Court upheld the decision, ruling that the Tribunal correctly stipulated and applied the onus upon Shaw to provide a non-discriminatory explanation for his conduct that was credible when considering all "of the evidence" - See paragraphs 65 to 68.

Civil Rights - Topic 7110

Federal, provincial or territorial legislation - Practice - Evidence and proof - Black postman 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 did not accept Shaw's explanation for his conduct as being credible and non-discriminatory - Shaw and the Chief of Police sought judicial review, arguing that the Tribunal improperly parsed the evidence and failed to consider the evidence as a whole - The Ontario Divisional Court rejected the argument and dismissed the application - Firstly, the court ruled that once a prima facie case was made out, the Tribunal asked itself the correct question: whether Phipps' skin colour was a factor in Shaw's surveillance of, decision to stop, and subsequent inquiry into Phipps - Secondly, the court found that the Tribunal did consider each fact relied upon by Shaw as grounds for suspicion and rejected each and every explanation - See paragraphs 69 to 72.

Civil Rights - Topic 7110

Federal, provincial or territorial legislation - Practice - Evidence and proof - Black postman 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 - Shaw and the Chief of Police sought judicial review, arguing that the Tribunal improperly and unfairly relied upon "unconscious discrimination" - The Ontario Divisional Court rejected the argument and dismissed the application - Many discrimination cases, such as this case, did not involve direct evidence that a complainant's colour or race was a factor in the incident in question - A tribunal had to draw reasonable inferences from proven facts - The court then held as follows: "The Tribunal cannot make a finding of discrimination based on the concept of 'unconscious discrimination' without supporting evidence. However, the Tribunal's decision must be considered in the context of all of the facts. The Tribunal did not simply rely on Mr. Phipps' perception of racism. The Tribunal carefully considered all of the evidence and rejected the evidence that the conduct of Mr. Phipps should have aroused the suspicion of the police of potential illegal activity. The Tribunal found that the most rational explanation for the actions of Officer Shaw was that they were motivated by race - that is, Mr. Phipps was an unknown black man in an affluent neighbourhood, and, therefore, he may be disguised as a postal worker, acting for an improper or illegal purpose" - See paragraphs 73 to 85.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - Section 45.8 of the Human Rights Code, enacted in December 2006, and in force on June 30, 2008, after the Dunsmuir decision (S.C.C.), provided that a decision of the Human Rights Tribunal was final and not subject to appeal and was not to be altered or set aside on judicial review unless the decision was "patently unreasonable" - At issue in the present case was the standard of review applicable to a Tribunal decision that had found racial discrimination and ordered a remedy - The Ontario Divisional Court held as follows: "Therefore, reading the words of s. 45.8 of the Code purposively and in light of general principles of administrative law, it would follow that the highest degree of deference is to be accorded to decisions of the Tribunal on judicial review with respect to determinations of fact and the interpretation and application of human rights law, where the Tribunal has a specialized expertise" - This meant that "the decisions on liability and on remedy must be respected unless they are not rationally supported - in other words, they are unreasonable (Dunsmuir, para. 42)" - See paragraphs 27 to 43.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - The Ontario Human Rights Tribunal interpreted s. 46.3(1) of the Human Rights Code (Ont.) and s. 50(1) of the Police Services Act (Ont.), and ruled that the Toronto Police Services Board was liable for a police officer's discriminatory actions because they had been carried out in the course of his employment - Judicial review was sought - At issue was the standard of review - The Ontario Divisional Court ruled that the standard was reasonableness in respect of the interpretation of s. 46.3(1) of the Human Rights Code where the Tribunal was interpreting its own enabling statute - The standard was correctness in respect of s. 50(1) of the Police Services Act where the Tribunal had no specialized expertise in the application of that statute - See paragraphs 101 to 104.

Civil Rights - Topic 7196

Federal, provincial or territorial legislation - Remedies - Compliance order - [See Civil Rights - Topic 1170 ].

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. 31].

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161; 101 D.L.R.(4th) 673, consd. [para. 32].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, consd. [para. 33].

R. v. Owen (T.), [2003] 1 S.C.R. 779; 304 N.R. 254; 173 O.A.C. 285; 2003 SCC 33, refd to. [para. 34].

Manz v. Sundher - see Manz v. Workers' Compensation Appeal Tribunal (B.C.) et al.

Manz v. Workers' Compensation Appeal Tribunal (B.C.) et al. (2009), 267 B.C.A.C. 99; 450 W.A.C. 99; 2009 BCCA 92, consd. [para. 36].

Victoria Times Colonist v. Communications, Energy and Paperworkers Union of Canada, Local 25-G et al. (2009), 272 B.C.A.C. 141; 459 W.A.C. 141; 2009 BCCA 229, consd. [para. 36].

Ajax (Town) v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Local 222 et al., [2000] 1 S.C.R. 538; 253 N.R. 223; 133 O.A.C. 43, refd to. [para. 38].

Rodrigues v. Workplace Safety and Insurance Appeals Tribunal (Ont.) et al. (2008), 242 O.A.C. 95; 92 O.R.(3d) 757 (C.A.), refd to. [para. 38].

Lakeport Beverages v. Teamsters Local Union 938 (2005), 201 O.A.C. 267; 77 O.R.(3d) 543 (C.A.), refd to. [para. 38].

Mills v. Workplace Safety and Insurance Appeals Tribunal (Ont.) (2008), 237 O.A.C. 71 (C.A.), refd to. [para. 40].

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. [paras. 46, 142].

Dang v. PTPC Corrugated Co., 2007 BCHRT 27, consd. [para. 47].

Johnson v. Halifax Regional Police Service, [2003] N.S.H.R.B.I.D. No. 2, consd. [para. 50].

Kampe v. Toronto Police Services Board, 2008 HRTO 304, consd. [para. 52].

R. v. Singh (J.) et al., [2003] O.T.C. 853; 2003 CanLII 20804 (Sup. Ct.), refd to. [para. 53].

Mitchell v. Nobilium Products Ltd. (1981), 3 C.H.R.R. D/641 (Ont. Bd. Inq.), consd. [para. 67].

Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430; 2005 BCHRT 302, refd to. [para. 76].

Pritchard v. Ziedler (2007), CHRR Doc. 07-527 (Sask. H.R.T.), refd to. [para. 76].

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, consd. [para. 171]; .

Ritlop v. Toronto Police Services Board, 2009 HRTO 307, consd. [paras. 92, 169].

McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal et al., [2007] 1 S.C.R. 161; 356 N.R. 177; 2007 SCC 4, consd. [para. 140].

Browne v. Dunn (1893), 6 R. 67 (H.L.), consd. [para. 172].

Peart et al. v. Peel Regional Police Services Board et al. (2006), 217 O.A.C. 269 (C.A.), consd. [para. 176].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, consd. [para. 178].

R. v. Parks, [1992] 2 S.C.R. 871; 140 N.R. 161; 55 O.A.C. 241, refd to. [para. 181, footnote 11].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 182].

Statutes Noticed:

Human Rights Code, R.S.O. 1990, c. H-19, sect. 45.2 [para. 123]; sect. 46 [para. 106]; sect. 46.3(1) [para. 99].

Police Services Act, R.S.O. 1990, c. P-15, sect. 31(2) [para. 117]; sect. 50(1) [para. 110].

Authors and Works Noticed:

Heckman, Gerald, Substantive Review in Appellate Courts Since Dunsmuir (2010), 47 Osgoode Hall L.J. 751, pp. 778, 779 [para. 40].

Counsel:

Kevin McGivney, for Michael Shaw and Chief William Blair, in all three applications;

Jayson W. Thomas, for Ronald Phipps in application Nos. 577/09 and 582/09;

Ronald Phipps, in person, in application No. 285/10;

Antonella Ceddia, for Toronto Police Services Board, in all three applications;

Anthony D. Griffin, for the intervenor, Ontario Human Rights Commission, in application Nos. 577/09 and 582/09;

Margaret Leighton, for the Human Rights Tribunal of Ontario, in all three applications;

These applications were heard on July 6, 2010, by J. Wilson, Swinton and Nordheimer, JJ., of the Ontario Divisional Court. The following decision of the Divisional Court was released on October 6, 2010, and the following reasons were filed:

J. Wilson and Swinton, JJ. - see paragraphs 1 to 129;

Nordheimer, J., dissenting in part - see paragraphs 130 to 185.