In his application, Lawrence Hay is calling on Divisional Court to quash a human rights tribunal ruling that his axing had nothing to do with his aboriginal status.
"The (tribunal) took a compartmentalized approach to the evidence that avoided consideration of whether, based on the totality of the evidence, race was a factor," Hay's factum states.
The province and Fantino argue the tribunal's decision was correct, and there's no evidence anything Fantino, now a federal cabinet minister, did was motivated by racism.
Hay had spent 19 years with the Mounties when he left to take up a post as chief of police of the Tyendinaga First Nation in eastern Ontario in 1998.
As required under provincial law, the commissioner of Ontario provincial police first appointed him as a First Nations constable.
During a protest in April 2007, Hay complained about police racism in an article published in a student newspaper.
"I realized just what a racist organization the RCMP was, and I came here to learn that the OPP and the (Surete du Quebec) ... are no different," Hay told the paper.
"It's deep-seated racism."
In light of the comments, Fantino suspended then revoked Hay's appointment as a First Nations constable in October 2007, effectively ending his position as chief.
Normally, police officers in Ontario charged with misconduct have a right to a full hearing along with extensive rights of appeal under the Police Services Act.
Not so for First Nations officers, a fact criticized by the Ipperwash Inquiry into the police killing of Dudley George. The inquiry concluded that racism was a problem within the provincial police force.
Hay argued unsuccessfully before the Human Rights Tribunal of Ontario that the different rules for aboriginal and non-aboriginal officers are discriminatory.
The tribunal also held that Fantino's failure to consult the band before suspending Hay was because of a decision to "act quickly."
In his factum, Hay argues his assertions of police racism were protected under the human rights code and Fantino's actions were retaliatory.
In response, Fantino's lawyers point out Hay's statement came during a volatile situation involving aboriginal land disputes and protests in the province.
"(Hay's) comments were made at a time of high tension," the factum states.
"The potential consequences of this degree of protest activity on the ability of the OPP to perform its policing functions were severe."
The lawyers also maintain Hay refused to co-operate with the investigation and nothing Fantino did was the result of racism or discrimination.
It notes the band's chief disapproved of Hay's comments.