Tribunal Allows Broader Underfunding Claims in Discrimination Case

OUTCOME: [NAME] [NAME] Tribunal Tribunal canadien des droits de la personne Citation: 2024 CHRT 104 Date: September 20, 2024 File No. : HR-DP-2983-23 Between: [NAME] (on behalf of the Indigenous Police Chiefs of Ontario) [RESPONDENT] - and - [NAME] [NAME] Commission Commission - and - [RESPONDENT] Respondent - and - [NAME] of Police Association Interested party Ruling Member: [NAME] \o "1-3" \h \z \u I. OVERVIEW PAGEREF _Toc177650220 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370037003600350030003200320030000000 II.

DECISION PAGEREF _Toc177650221 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370037003600350030003200320031000000 III. ANALYSIS PAGEREF _Toc177650222 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370037003600350030003200320032000000 IV.

ORDER PAGEREF _Toc177650223 \h 7 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370037003600350030003200320033000000 I. OVERVIEW [ 1 ] This is a motion filed by the Respondent, [RESPONDENT] ([RESPONDENT]), regarding the scope of the complaint. [ 2 ] The [RESPONDENT], [NAME], filed the complaint on behalf of Indigenous Police Chiefs of Ontario ([NAME]), which represents nine self-administered Indigenous police services. [NAME] alleges that [RESPONDENT] discriminates on the basis of race and national or ethnic origin in the application of the [NAME] ([NAME]), which funds self-administered Indigenous police services. [RESPONDENT] is responsible for the implementation of the [NAME]. [ 3 ] [RESPONDENT] contends in its motion that [NAME] added in its Statement of Particulars (SOP) new broad allegations of underfunding that were not raised in the complaint. [RESPONDENT] argues that [NAME] is thus trying to introduce a substantially new complaint that was not considered by the [NAME] [NAME] Commission (the “Commission”).

II.

DECISION [ 4 ] I find that the allegations of underfunding are not outside the scope of the complaint that the Commission referred to the Tribunal for inquiry. [ 5 ] [RESPONDENT]’s request is denied.

III. ANALYSIS [ 6 ] The Tribunal’s jurisdiction to conduct inquiries into complaints is derived from s. 49 of the [NAME] [NAME] Act , R.S.C. c. H-6 (the “Act”), according to which the Tribunal Chairperson must institute an inquiry into a complaint upon receipt of a request from the Commission (s. 49(2)). The scope of Tribunal inquiries is thus limited to the matters arising from the complaints accompanying such requests (see [NAME] v. [NAME] , 2009 CHRT 22 at para 7). [ 7 ] The analysis in this case is complicated somewhat by the existence of what could be loosely referred to as two versions of the complaint. [ 8 ] On March 29, 2023, [NAME] originally filed with the Commission a complaint that was 30 pages long (the “Original Complaint”). However, the Commission informed [NAME] that the complaint was too long. According to the Commission’s rules, complaints cannot exceed three pages. [NAME] agreed to shorten its complaint to a three-page “summary,” which it refiled along with the Original Complaint. The summary included a statement in the first paragraph affirming that [NAME] was “repeat[ing] and rely[ing] on the full narrative, as set out in [the Original Complaint].” [ 9 ] The Commission responded to [NAME] that complaints must be stand-alone documents and cannot refer to other documents.

Accordingly, [NAME] consented to the removal of the sentence referring to the Original Complaint. It was this edited version (i.e., after the above-mentioned sentence was deleted) that the Commission attached to its letter to the Tribunal referring the complaint for inquiry pursuant to s. 49(1) of the Act (the “Referred Complaint”). [ 10 ] [RESPONDENT] contends that [NAME]’s SOP contains broad allegations of underfunding, which it claims were not mentioned in the Referred Complaint. It is true that the term “underfunding” does not appear even once in the Referred Complaint. [ 11 ] [NAME]’s SOP, on the other hand, alleges that [NAME] have experienced chronic underfunding under the [NAME]. The term “underfunding” appears about six times in the 53-page SOP. [ 12 ] I note, however, that three of the passages in the SOP that refer to underfunding are copied almost word-for-word from the Original Complaint. The remaining references are similar to other underfunding references in the Original Complaint, except for one relating to remedies, which I will address later in this ruling. [ 13 ] Consequently, the SOP’s references to underfunding are clearly within the scope of the Original Complaint. But that is not the document that the Commission referred to the Tribunal for inquiry. Does this mean that [NAME] is precluded from alleging underfunding in its SOP? [ 14 ] To answer this question, I need to consider the specific circumstances that led to the filing of the Referred Complaint and how it was dealt with by the Commission. [ 15 ] When [NAME] consented to remove from the Referred Complaint the sentence regarding its continued reliance on the Original Complaint, [NAME] stated to the Commission that its consent was given on the understanding that the Original Complaint remains on the record as the “detailed narrative” that the Commission would review. [ 16 ] The Commission replied to [NAME] that while it appreciated [NAME]’s wish to have full details of the Original Complaint before the Commission when it makes its decision, the complaint form had to be limited in length and could not refer or rely on any other documents. The Commission nonetheless confirmed to [NAME] that the Original Complaint would remain on file and would be read and considered during the assessment of the complaint. However, the Commission also added that the Original Complaint would not be before the Commission when making its decision. The Commission assured [NAME] that “relevant portions” of the Original Complaint would be “brought forward into the report” that would be written. [ 17 ] The matter was then apparently handed over to a [NAME] [NAME] officer (HRO) of the Commission to prepare a report, known as the Report for Decision (the “[NAME]”). It is my understanding that the “assessment” to which the Commission referred in its correspondence with [NAME] consists of the HRO’s review of the case leading up to the preparation of the [NAME]. [ 18 ] [RESPONDENT] acknowledges in its submissions that it received a copy of the Original Complaint and the Referred Complaint at some point during this stage of the Commission process. [ 19 ] The 14-page [NAME] is dated October 30, 2023. Its summary of the complaint appears to describe the content of the Referral Complaint only. The [NAME] does not mention that [NAME] had filed the 30-page Original Complaint first. [ 20 ] The allegations in [NAME]’s pared down Referral Complaint basically consist of the following: An explanation of [NAME]’s and [RESPONDENT]’s status and mandate; References to decisions from the Tribunal, the Federal Court, and the [ADDRESS] of Appeal, which allegedly ruled that the [NAME] was “discriminatory;” Then, after making a general allegation of discrimination, a “Summary of Key Issues” is listed under the following headings: [RESPONDENT] deprives Indigenous people of legal representation; [RESPONDENT] refuses to negotiate at all; [RESPONDENT] cuts off funding to force [NAME] to submit to discrimination; [RESPONDENT] offers misleading excuses and vague promises; The Referral Complaint ends with a paragraph setting out the relief requested. [ 21 ] The [NAME]’s description of the complaint highlights the “Key issues” listed above. [RESPONDENT] submits that, in doing so, the [NAME] and, by extension, the Commission only dealt with the specific allegations in the Referral Complaint, which do not contain any general allegations of underfunding. [ 22 ] The [NAME]’s final recommendation was that the Commission request the Tribunal Chairperson to institute an inquiry into the complaint, pursuant to s. 49(1) of the Act. [ 23 ] On December 20, 2023, the Commission issued its decision referring the matter to the Tribunal. The Commission stated in its decision that it had “reviewed the Complaint Form, the [[NAME]] and the submissions of the parties filed in response to this report.” The Commission then concluded that “for the reasons discussed in the report,” it had decided to refer the complaint to the Tribunal because an inquiry is warranted. [ 24 ] In other words, the Commission adopted the [NAME]’s findings as its reasons for the referral. [ 25 ] Although the [NAME] does not refer specifically to the Original Complaint, I find that elements of the Original Complaint found their way into the HRO’s analysis. In particular, the Original Complaint relies extensively on recent case law involving the [NAME], including the following decisions: [RESPONDENT] (Procureur général) c. Première Nation des [NAME] , 2023 CF 267 [ [NAME] ], upholding the Tribunal’s finding in [NAME] (on behalf of the members of the [NAME]) v. [RESPONDENT] , 2022 CHRT 4; [NAME] c. Procureur général du Québec , 2022 QCCA 1699 [ [NAME] ]. The Original Complaint alleges that these decisions had found among other things that there is “systemic underfunding” under the [NAME] which exacerbates discrimination against [NAME]. Notably, paragraphs 4 and 5 of the Referral Complaint also refer to these decisions. While not making any specific reference to underfunding, these paragraphs, when read in conjunction with the referenced case law, allude to the issue of underfunding as a contributing factor to the alleged discrimination. [ 26 ] The [NAME] addresses these decisions extensively, noting that the Federal Court in [NAME] “recognized the inadequacy of the funding” and that the [ADDRESS] of Appeal in [NAME] had found the [NAME] “did not sufficiently fund a culturally appropriate Indigenous police service.” [ 27 ] The [NAME] states in its final analysis that there is a reasonable basis in the cited case law to support [NAME]’s allegation of discrimination regarding the [NAME]. [ 28 ] Thus, I am satisfied that although the terms chronic or systemic underfunding may not have been explicitly mentioned in the Referred Complaint, the issue as raised in the Original Complaint was considered by the HRO in the preparation of the [NAME], particularly in addressing the recent case law. [RESPONDENT] was notified of those allegations early on when it received a copy of the Original Complaint. The [NAME] constitutes the reasons for the Commission’s referral of the complaint to the Tribunal, and the Referral Complaint refers explicitly to this case law. The issue of chronic underfunding as mentioned in the substantive allegations of the SOP is therefore not outside the scope of the complaint before the Tribunal. [ 29 ] As I mentioned earlier, [NAME]’s SOP also mentions underfunding in its section on remedies. It is true that the Original Complaint and the Referred Complaint do not explicitly refer to underfunding under the section entitled remedies. However, it is common for complaints, when they are filed, to provide only basic information about the remedies being sought. Details about remedies are usually given as the matter approaches a hearing, and this is precisely one of the purposes of SOPs—to provide greater detail about the remedial claims. The fact that rectifying alleged underfunding is mentioned as a remedial claim for the first time in the SOP is not out of the ordinary and does not mean that it falls outside the scope of this case. [ 30 ] As a final comment, it is unsurprising that a three-page complaint form was insufficient to address the intricacies inherent in a complex case such as this, involving [NAME]. These types of cases can bring up numerous factual and legal issues that can be difficult to capture within the constraints of a three-page form. When dealing with scope issues, the Tribunal’s role is to determine the real questions in controversy between the parties ( [RESPONDENT] (Attorney General) v. [RESPONDENT] , 2006 FC 1313 at para 30). Substance should prevail over form. It is obvious, from the record, that [NAME] always intended underfunding to form part of the inquiry, and procedural formalities should not impede the Tribunal’s ability to address the substantive matters at hand. [ 31 ] For these reasons, I deny [RESPONDENT]’s motion requesting a finding that [NAME]’s broader claims of underfunding in the SOP are beyond the scope of the complaint. [ 32 ] However, I note that [RESPONDENT] made important points in its submissions about the lack of particulars regarding these claims. Although I have found that the underfunding claims are not new—[NAME] has been making these broad allegations since the filing of the Original Complaint—it does not necessarily mean that these issues have been sufficiently defined to enable the other parties to prepare for the hearing, prevent surprises and facilitate the hearing in general (see [RESPONDENT] v. [NAME] [RESPONDENT] , 2016 CHRT 8 at paras 39-42; [RESPONDENT] v. [NAME] ([NAME]) , 1999 CanLII 19858 (CHRT)). [ 33 ] I need not elaborate on this observation at this point. It can be addressed, along with any other disclosure related issues, at the next Case Management Conference Call, which I will be convening shortly.

IV.

ORDER [ 34 ] [RESPONDENT]’s motion regarding the scope of the complaint is denied. Signed by [NAME] Tribunal Member Ottawa, Ontario September 20, 2024 [NAME] [NAME] Tribunal Parties of Record File No. : HR-DP-2983-23 Style of Cause: [NAME] (on behalf of the Indigenous Police Chiefs of Ontario) v. [RESPONDENT] of the Tribunal Dated: September 20, 2024 Motion dealt with in writing without appearance of parties Written representations by: [RESPONDENT] [NAME], for the [RESPONDENT] [NAME] and [RESPONDENT], for the [NAME] [NAME] Commission [RESPONDENT] and [RESPONDENT], for the Respondent