HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Vincent Sinclair
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Corporation of the City of London
Respondent
INterim DECISION
Adjudicator: David A. Wright
Indexed as: Sinclair v. London (City)
Human Rights Tribunal of Ontario
400 University Avenue, 7th Floor
Toronto ON M7A 1T7
Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946
TTY (416) 314-2379 / 1-800-424-1168
E-mail hrto.registrar@ontario.ca
Website www.hrto.ca
WRITTEN SUBMISSIONS BY
Vincent Sinclair, Complainant ) On his own behalf
Ontario Human Rights Commission ) Sharon Ffolkes-Abrahams, ) Counsel
Corporation of the City of London, Respondent ) Geoffrey Belch, Counsel
INTRODUCTION
1This decision determines a request by the complainant, Vincent Sinclair, to add James McNabb as a respondent in the Tribunal’s proceeding pursuant to s. 39(3) of the Human Rights Code, R.S.O. 1990, c. H.19. Mr. Sinclair had named Mr. McNabb as a respondent when he filed his complaint with the Ontario Human Rights Commission (the “Commission”), but the Commission referred to the Tribunal only the portion of the complaint against the Corporation of the City of London (the “City”), the other respondent named by Mr. Sinclair.
2At issue in this proceeding is an incident that occurred at London City Hall on June 6, 2003, during which an employee of the City Clerk’s Office telephoned Mr. McNabb, a security officer, regarding Mr. Sinclair, who was present to pick up documents. Mr. Sinclair, who identifies as Black, alleges in his request that his treatment by both the City and Mr. McNabb was discriminatory. Mr. McNabb is employed by a third party, the Commissionaires (Great Lakes) Western Region, which provides security services to the City.
3This motion was heard in writing. I received submissions from Mr. Sinclair, the Commission, and the City. The City opposes the request and the Commission takes no position. While Mr. McNabb was given notice and the opportunity to make submissions, he did not do so.
4Mr. Sinclair did not make his request until November 27, 2007, the first day of hearing. For the reasons that follow, I dismiss Mr. Sinclair’s request. Mr. Sinclair did not raise this matter in a pleading or during the Tribunal’s pre-hearing processes, as the Tribunal’s Rules of Practice (“rules”) and fairness require. This is not an appropriate case to make an exception and add this respondent now, since Mr. Sinclair has not provided an acceptable reason for the significant delay that would outweigh the prejudice caused to the hearing process, Mr. McNabb, and the City.
FACTS
5Mr. Sinclair filed his complaint with the Commission on December 12, 2003. In a decision dated September 26, 2006, the Commission referred the complaint against the City to the Tribunal, and decided not to refer the complaint against Mr. McNabb. Accompanying the decision were detailed instructions on how the complainant could ask the Commission to reconsider its decision. Mr. Sinclair made no request for reconsideration.
6The Tribunal’s Notice of Initial Conference Call (“ICC”) was sent to the parties, including Mr. Sinclair, on October 25, 2006. It included the statement, “It is very important for you to participate in this call” [underlining in original] and indicated that the following, among other things, would be discussed during the call: “identifying any person not already named in the Complaint who may be affected by the proceeding and should be given notice” and “where necessary, identifying and canvassing dates for argument of any preliminary motions”. The letter also set out how parties could obtain copies of the Tribunal’s Rules of Practice (“Rules”) and said, “Please read these rules carefully, as you will be expected to comply with them” [bold in original]. Mr. Sinclair did not attend the ICC, held on November 15, 2006. The result of the ICC was that a mediation was scheduled, which was held on March 22, 2007.
7The mediation was unsuccessful. On consent of all parties, the Commission and complainant’s pleadings (Statements of Facts, Issues and Remedy) were due on May 18, 2007. Mr. Sinclair did not file a pleading. The Commission’s pleading did not indicate any desire to add Mr. McNabb as a party. A pre-hearing conference call was held on September 6, 2007. Mr. Sinclair did not attend. The hearing commenced on November 29, 2007.
8At the outset of the hearing, Mr. Sinclair raised, for the first time, his request that Mr. McNabb be added as a respondent. When I asked him why he was only making this request at this time, his answer was to the effect that he had been busy with other matters. In these very particular circumstances, I granted an adjournment for the purpose of giving notice to Mr. McNabb. In an unreported interim decision, I held as follows at paras. 5-6:
Mr. Sinclair’s delay in bringing the motion, however, may be a factor in my decision on whether or not I grant his request… My decision to grant the adjournment and allow Mr. Sinclair to bring the motion does not deal in a final manner with the issue of timeliness. The other parties may raise the issue of delay in their submissions on the motion if they believe it is appropriate.
9The City indeed raised the issue of timeliness, in particular in relation to the effects of the delay upon it and Mr. McNabb. Mr. Sinclair provided no explanation for the delay in his written submissions or argument on the issue other than the statement that the failure to name Mr. McNabb was “a harmless error” that would not cause prejudice to Mr. McNabb.
ANALYSIS
10While the Tribunal has new rules that took effect on January 31, 2008, this request was brought under the July 2004 rules and all references to the “rules” refer to the 2004 rules, unless otherwise noted.
11The Tribunal did not set a specific deadline for bringing preliminary motions. However, I conclude that the rules and basic fairness to all parties require that this type of significant request be identified early in the process, and certainly by the time pleadings are filed.
12Rule 33 provides that matters that may be addressed on the Initial Conference Call include “identifying any other person not already named in the complaint, who may be affected by the proceeding and should be given notice” and “canvassing available dates for the argument of any preliminary motions, the pre-hearing conference and the hearing on the merits”. Rules 37 and 39 require that pleadings identify preliminary motions (Rules 37(d) and 39(e)), “where the good character, propriety of conduct, or competence of a party is an issue in a proceeding, the particulars in support of these allegations” (Rules 37(b) and 39(c)), and identify any person not identified in the complaint who may be affected and their contact information (Rules 37(g) and 39(g)). A Statement of Facts, Issues and Remedy must include “a statement of the facts and issues in dispute” (Rule 37(a)) and, and the desired remedy (Rule 37(c)). During the pre-hearing conference call, among the issues the panel may address pursuant to Rule 55 are “identification and determination of parties and other interested persons and the scope of their participation in the hearing” and “identification and resolution of any preliminary issues or motions or setting dates for the hearing of any preliminary issues or motions”.
13The purpose of requiring the filing of pleadings is to ensure that each party provides the Tribunal and the other parties with a firm understanding, prior to the commencement of the hearing, of its version of events and the position it takes on the issues in the case. No one is taken by surprise and the matter can proceed fairly and efficiently. While, pursuant to Rule 38, a complainant need not file a pleading, a decision not to do so may preclude the complainant from raising new matters not set out in the Commission and respondents’ pleadings. Similarly, it is a basic requirement that preliminary matters be raised as soon as possible and at an early stage of the proceedings, in order that the process may proceed expeditiously, with fairness to all parties, and without surprises.
14Mr. Sinclair did not comply with the rules. He did not raise his desire to add Mr. McNabb as a respondent in a pleading nor at any other stage prior to the hearing. However, pursuant to Rule 14, “The panel may waive or vary the application of any of these Rules where appropriate”. The issue I must now determine is whether in this case I should exercise my discretion to waive the application of the rules.
15There are competing interests that the Tribunal must consider in such circumstances. On the one hand, a party who raises a new issue has an interest in having it determined on its merits, particularly if the delay was beyond the party’s control. On the other hand, I must consider prejudice to the hearing process and to the City and Mr. McNabb as a result of the delay in raising this issue. Both the parties and the public have an interest in having human rights matters determined in an expeditious and cost-effective manner and the Tribunal is directed to have regard to these considerations as well as the just determination of matters on their merits: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 2. Deadlines and the requirement that issues be raised at particular points in the process promote the timely and fair resolution of disputes. The Tribunal must consider as part of its analysis the value of expeditious resolution of Tribunal proceedings and of having the issues in dispute defined and finalized as set out in the rules.
16This is not a trivial or insignificant delay. Mr. Sinclair did not raise his continuing desire to have Mr. McNabb participate as a respondent by seeking reconsideration of the Commission’s decision, in a pleading, or during the various other pre-hearing stages of the Tribunal’s process. He made the request on the first day of hearing, more than a year after the referral and more than six months after the pleading deadline.
17This is also not a minor or technical request. If granted, it would add a new party and expand the facts considered in the hearing. It would necessitate new pleadings by all parties and more hearing time. It could change the issues as they have been defined. Indeed, the Commission suggested in its reply submissions that it intends to call as a “similar fact witness” a person who raised Mr. McNabb’s conduct post-complaint while acting as a security guard, something that may well lead to various new issues. Moreover, Mr. McNabb, who has not been involved as a party since the Commission’s decision, would now, well over one year later, have to recommence his participation as a respondent in a matter he thought was concluded as against him.
18Mr. Sinclair has provided no acceptable reason for his failure to follow the rules. Inadvertence or inattention is not a good reason for the delay that can outweigh the prejudice to the process and to the other parties. In particular, this is not a case where new information previously only in the respondent’s possession has come to light during the Tribunal’s disclosure process, discussed in Lundy v. Kaparel Corporation, 2007 HRTO 44 at para. 12. Accordingly, the motion must be dismissed.
19Mr. Sinclair asked, in the alternative, that the Tribunal order that Mr. McNabb attend to give evidence. There is no need for such an order. Any party may request a summons from the Tribunal and serve it on a person to require them to give evidence and/or bring documents, in accordance with Rules 86-87 of the 2008 rules. Counsel for the respondent has advised the Tribunal and the parties that he plans to call Mr. McNabb as a witness.
ORDER
20The complainant’s request to add James McNabb as a respondent in this matter is dismissed.
Dated at Toronto, this 14th day of February, 2008.
“signed by”
David A. Wright
Vice-Chair