Green v. Ontario (Human Rights Tribunal), 2025 ONSC 6223
In 2017, the applicant filed an application against the Hamilton Police Services Board alleging discrimination on the basis of race and colour, in relation to an incident where he was stopped by police. In October 2017, the HRTO deferred the human rights application pending the outcome of a hearing under the Police Services Act. The PSA hearing took place in the fall of 2017 and a decision was released in 2018, finding that the applicant was not stopped and questioned because of his race.
Following the release of the decision, in November 2018, the HRTO reactivated the human rights application upon request of the applicant. It appears that the HRTO took no further steps to move the application forward until July 2024, when it directed that a preliminary hearing take place to address the issue of whether to dismiss all or part of this Application pursuant to s. 45.1 of the Code, on the basis that the PSA proceeding had already appropriately dealt with the substance of the application.
In a November 2024 decision, upheld in a reconsideration decision in February 2025, more than 6 years after the application had been reactivated, the HRTO dismissed the application under s.45.1. This decision was inconsistent with the direction given by the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, and with the HRTO’s own caselaw since the Penner decision.
In reviewing the HRTO decision in Green, the Court found that there was no explanation for the new approach taken by the adjudicator and noted, at paragraph 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.
The Court found there was no explanation for the approach taken by the adjudicator:
By failing to meaningfully grapple with Mr. Green’s arguments on this issue, the Tribunal’s decision does not meet the threshold of reasonableness, which requires that the reasoning process leading to a decision be transparent, intelligible and justified.