King v. Toronto Police Services Board, 2008 HRTO 20

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy King

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: March 28, 2008

Citation: 2008 HRTO 20

Indexed as: King v. Toronto Police Services Board

Human Rights Tribunal of Ontario 400 University Avenue, 7^th^ 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

Introduction

1This Interim Decision addresses a request for an order during proceedings filed by the Commission on March 27, 2008 seeking production of various documents and things from the respondent and requesting an extension for the filing of the Commission’s hearing brief.

2This decision will address only the Commission’s request for an extension. The Commission’s request for production will be dealt with following receipt of submissions from the respondent and any reply, in accordance with the procedure established by this decision.

BACKGROUND

3The complaint in this matter was filed on October 12, 2004 and alleges that the complainant experienced discrimination because of sexual orientation in the context of an incident involving the police on or about July 25, 2004, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This complaint was referred by the Commission to the Tribunal by letter dated December 18, 2007.

4The Initial Conference Call in this matter was held on January 23, 2008. At that time, the complainant indicated an intention to bring a motion to add the officers involved in the incident as personal respondents to his complaint. It was agreed by all parties that this issue would need to be addressed prior to the parties determining whether they wished to pursue mediation. As a result, on January 24, 2008, the Tribunal confirmed by letter to the parties that motion materials from the Commission and the complainant would be served and filed by February 22, 2008, that the respondent’s response would be served and filed by March 7, 2008, and that any replies would be provided by March 17, 2008. These dates were set with agreement of all parties, including Commission counsel, whose requests for additional time to prepare the initial motion materials and to prepare any reply were accommodated.

5On February 29, 2008, one week after motion materials were due, the Commission wrote to the Registrar to advise that it would not be seeking to add additional parties at this time. The Commission further expressed its understanding that the respondent wished to proceed without formal Tribunal mediation. Finally, the Commission stated that it would be bringing a motion for production and requested advice as to how best to set up dates for the exchange of motion materials.

6In response, by letter dated March 3, 2008, the Tribunal set dates for the filing of hearing briefs, which is the next stage in the process if the parties do not agree to mediation. The Commission’s hearing brief is due on April 2, 2008. With regard to the Commission’s request for production, the Tribunal advised that the Commission could file this request at any time in accordance with Rules 77 to 81, and was further advised that pursuant to Rule 81 the respondent is required to respond within 10 days.

7This was followed on March 27, 2008 by the Commission’s request for production and for an extension for filing its hearing brief.

DISCUSSION AND ANALYSIS

8In the material filed by the Commission, the reasons which are relevant to the request for an extension to file its hearing brief are as follows:

The investigation into this case was not completed because of production refusals at the investigation stage.

Because the investigation was not completed (because certain documents were not produced), the Commission is not in a position to prepare its Hearing Brief in accordance with Rule 57, which requires that we provide all facts and identify all witnesses. The remaining information sought is also necessary in order for the Commission to comply with Rule 57.

9Recent decisions of this Tribunal have held that, except in the rarest of circumstances, preliminary and procedural matters should not be raised prior to a party filing its pleadings and making disclosure: Garrelhas v. ICE Consultants Inc. (No. 1), 2005 HRTO 51; Persaud v. Toronto District School Board, 2007 HRTO 39.

10In this case, the Commission seeks to invoke an exception to this principle on the basis that it was not able to complete its investigation due to production refusals by the respondent during the investigation stage. However, no material has been provided by the Commission in support of its request to establish what production requests may have been made to the respondent during the course of the Commission’s investigation or on what basis the respondent may have refused to comply with any such production requests.

11The Tribunal is in receipt of the referral letter from the Commission dated December 18, 2007, which states that the referral was made pursuant to s. 33(6) of the Code. This provision states (in its relevant part):

If a person refuses to comply with a request for production of documents or things, the Commission may refer the matter to the Tribunal . . .

However, the Tribunal also was copied on two letters from counsel for the respondent to the Commission dated January 21 and 22, 2008, in which the respondent questions the basis upon which the conclusion was reached by the Commission that it refused production.

12In any event, when dealing with requests for production prior to the filing of a party’s hearing brief, the issue in the context of the Tribunal’s adjudicative process is whether or not it is more just, fair and expeditious to order the respondent to make production to the Commission prior to the Commission's requirement to file its hearing brief. In considering this issue, the Tribunal will consider not only the arguable relevance of the documents requested to the subject-matter of the complaint, but also whether and why such production is required prior to the Commission filing its hearing brief.

13In this case, apart from the assertion that the respondent refused to respond to a production request made by the Commission during its investigation and that this somehow impairs the Commission’s ability to state in its hearing brief all facts upon which it relies as required by Rule 57, the Commission has not provided any actual reasons as to why it requires the production sought from the respondent in its request in order to file its hearing brief. On this basis alone, the request for an extension to file its hearing brief is denied.

14However, I am also concerned about the Commission’s delay in raising this matter. The Commission was granted almost one month after the Initial Conference Call to file motion materials regarding the potential addition of personal respondents to this proceeding. Surely this was more than sufficient time for the Commission also to have filed its request for production, had the Commission truly required this material prior to filing its hearing brief. Instead, the Commission’s request was received less than one week prior to when its hearing brief is due. Any requests for production which the Commission wishes to make prior to filing its hearing brief should have been made in a timely manner, in order to avoid further delays.

15At the same time, the Tribunal will always ensure that its process is fair. Therefore, where a party makes a production request to another party in a timely way, perhaps prior to the requesting party's obligation to file its pleadings, and the party opposite refuses, that may prompt the Tribunal to permit the requesting party to amend its pleadings later. Further, any party, including the Commission, may make a request to amend its hearing brief in appropriate circumstances, and this may include a situation where subsequent production brings to light new facts.

16The Commission’s request for an extension to file its hearing brief is denied. The Commission’s hearing brief shall remain due on April 2, 2008. With regard to the Commission’s request for production dated March 27, 2008, the respondent shall file its response within 10 days as required by Rule 81. Accordingly, the response to the Commission’s request is due on April 7, 2008. Any reply from the Commission and the complainant shall be due on April 11, 2008.

ORDER

17For all of the foregoing reasons, the Tribunal makes the following Order:

a. That the Commission’s request for an extension to file its hearing brief is denied, and the Commission’s hearing brief shall remain due on April 2, 2008;

b. That the respondent shall file its response to the Commission’s request for production by April 7, 2008, and any reply from the Commission and the complainant shall be due on April 11, 2008.