Ontario’s Divisional Court has ruled that the Ontario Human Rights Tribunal’s (HRTO) dismissal of Matthew Green’s human rights complaint alleging racial profiling by the Hamilton Police Service was “unreasonable.”
The Court found the Tribunal failed to properly apply Supreme Court of Canada precedent when it solely relied on a police disciplinary hearing to justify the dismissal.
Justice Harriet Sachs, writing for the unanimous three-judge panel, ordered the HRTO to assign a different adjudicator and rehear Green’s discrimination complaint.
The complaint stems from an incident on April 16, 2016, when Matthew Green, then the Ward 3 Councillor, was waiting at a bus stop near Stinson Street and Victoria Street South. Green was standing under a nearby overpass to shield himself from the wind on that blistery cold day.
Constable Andrew Pfeifer stopped his cruiser, got out, and walked up to conduct what he called a ‘well-being’ check. Green alleged the stop was arbitrary, pointless, and constituted racial profiling.
Green filed a complaint with the Office of the Independent Police Review Director (OIPRD).
The OIPRD investigation found there were reasonable grounds that Constable Pfeifer’s actions that day constituted misconduct as defined under Section 80 of the Police Services Act (PSA). The OIPRD ordered Hamilton’s Chief of Police to charge Const. Pfeifer with one PSA count of “discreditable conduct.”
A five-day PSA hearing in September 2017 found that Const. Pfeifer was concerned about Green’s mental health and concluded the check was not racially motivated. The charge was dismissed.
The HRTO subsequently dismissed Green’s human rights complaint using the principle of issue estoppel, relying on the PSA ruling as a final determination.
The Divisional Court determined the HRTO’s use of the police disciplinary ruling was legally unsound in that it ignored binding Supreme Court of Canada jurisprudence.
In 2013, the Supreme Court ruled allowing a PSA hearing to be the final say in civil litigation is “a serious affront to basic principles of fairness” because the Chief of Police appoints the investigator, the prosecutor, and the hearing officer. Penner v. Niagara (Regional Police Services Board), 2013 SCC 19.
Allowing the results of such a process to serve as the final decision in a civil matter effectively permits the Chief to become “the judge of his own case.”
[64] Under the public complaints process of the PSA at the relevant time, the Chief of Police investigated and determined whether a hearing was required following the submission of a public complaint. The Chief of Police appointed the investigator, the prosecutor and the hearing officer.
[65] It has been recognized that these arrangements are not objectionable for the purposes of a disciplinary hearing (as in Sharma). However, in our view, the fact that this decision was made by the designate of the Chief of Police should be taken into account in assessing the fairness of using the results of the disciplinary process to preclude Mr. Penner’s civil claims. While this point was not clearly placed before the Court of Appeal, we think it is an important one.
[66] Applying issue estoppel against the complainant here had the effect of permitting the Chief of Police to become the judge of his own case, with the result that his designate’s decision had the effect of exonerating the Chief and his police service from civil liability. In our view, applying issue estoppel here is a serious affront to basic principles of fairness.
The Divisional Court emphasized that Mr. Green is not seeking personal damages in his human rights complaint. Instead, he is seeking systemic remedies directed at addressing racial profiling within the Hamilton Police force.
The Court noted that systemic remedies are not available through PSA proceedings, and given the quasi-constitutional nature of the Human Rights Code, achieving systemic change is a key goal in preventing discriminatory behaviour.
During oral arguments on October 7, lawyers for the Hamilton Police Service Board requested that the Divisional Court dismiss the matter outright due to the time elapsed since the 2016 incident. The Court declined that request.
The Community Safety and Policing Act (CPSA), which replaced the Police Services Act, addresses the systemic conflict of interest and lack of independent oversight that characterized PSA hearings.
CPSA adjudicators are independently appointed by the Chair of the Ontario Police Arbitration and Adjudication Commission -not the Chief of Police- thereby addressing the “serious affront to basic principles of fairness” at the heart of this matter.
The decision, Green v. Ontario (Human Rights Tribunal), 2025 ONSC 6223, is not yet published on CanLII.
When published, it should appear as https://www.canlii.org/en/on/onscdc/doc/2025/2025onsc6223/2025onsc6223.html
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Published: November 8, 2025
Last updated: November 8, 2025
Author: Joey Coleman
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