Jogendra v. Ontario (Attorney General), 2009 HRTO 36

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Regis Jogendra

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General, Michael Bryant, Brian Lennox and Donald Ebbs

Respondents

AND B E T W E E N:

Regis Jogendra

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General and Kenneth Campbell

Respondents

INTerim DECISION

Adjudicator: David Muir

Date: January 12, 2009

Citation: 2009 HRTO 36

Indexed as: Jogendra v. Ontario (Attorney General)

1These are two Applications filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on July 24, 2008.

2The Applications are briefly summarized below:

• In Application No. T-0026-08, the applicant, a former Justice of the Peace, alleges that the respondents’ failure to assign him a full-time presiding appointment amounted to discrimination with respect to employment on the basis of ancestry, colour, ethnic origin, place of origin and race (the “Progression Application”).

• In Application No. T-0027-08, the applicant alleges that the respondents’ failure to indemnify him for legal costs incurred in defending charges arising within the scope of his employment amounted to discrimination with respect to employment on the basis of ancestry, colour, ethnic origin, place of origin and race (the “Legal Costs Application”).

3The parties have all raised preliminary matters. In both Applications the applicant has raised objections to the respondents’ choice of counsel. The respondents all seek an Order dismissing the Applications stating that the complaints underlying the Applications are frivolous, vexatious, made in bad faith, and the delay in filing the original complaints was not incurred in good faith. In addition the respondents in the Progression Application state that the Tribunal does not have jurisdiction over the complaint and Application because the applicant was not an employee, the Ontario Court of Justice enjoys institutional and administrative immunity and there is a separate statutory scheme for dealing with such complaints.

4In a prior Interim Decision various case management directions were made in respect of the Case Resolution Conference scheduled on February 6, 2009. Amongst those directions was one directing that the parties be prepared to deal with all of the preliminary issues at the Case Resolution Conference.

5The applicant requested the production of documents in letters dated November 7 and November 12, 2008 to counsel for the respondents. The parties exchanged letters respecting the applicant’s requests but the issues between them remain unresolved. On November 26, 2008 the applicant wrote the Tribunal requesting Orders directing the respondents to provide the requested material pursuant to Rule 4.3(j).

6In its decision 2008 HRTO 340 the Tribunal sought submissions from the parties on the production requests. The applicant was specifically directed to explain how the documents requested were relevant to the issues to be dealt with in the Case Resolution Conference in February. The applicant failed to do so. Other than a general assertion that the requests are relevant to the preliminary issues, the applicant provided no arguments in support of his position.

7Rule 9.3 requires that the parties provide to each other all arguably relevant documents, except where privilege is claimed.

8I am not satisfied the applicant’s submissions provide any support for finding the documents requested are relevant to the preliminary issues which will be determined at the Case Resolution Conference. Most of the documents requested appear to relate to the merits of the Applications. Those few requests which might bear some relationship to the preliminary issues are not requests for documents at all but are in the nature of discovery questions. For example the applicant requests that the respondents in the Legal Costs Application provide the “law, rule or regulation” that allows counsel to represent the individual respondent. The applicant also seeks documents which the respondents state do not exist and, despite direction to do so, has provided no basis on which the Tribunal might conclude this statement is not correct. Other documents sought raise obvious issues of solicitor-client privilege which the applicant has failed to address.

9For all these reasons the Tribunal refuses the applicant’s request for Orders.

10I am not seized of this matter.