Kelly v. Toronto Police Services Board, 2010 HRTO 803

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Kelly

Applicant

-and-

Toronto Police Services Board and Sergey Proger

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: April 12, 2010

Citation: 2010 HRTO 803

Indexed as: Kelly v. Toronto Police Services Board

1This is an Application filed May 26, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A hearing is scheduled for May 12, 2010. The purpose of this Interim Decision is to address the respondents’ requests for particulars and production. I also address, on my own initiative, the issue of bifurcation.

2The applicant alleges that he was discriminated against with respect to police services on the basis of race, colour, family status, disability arising out an interaction with the respondent police officer Sergey Proger and others, on June 1, 2005.

Bifurcation

3I have determined that it would be fair, just and expeditious to bifurcate the hearing. Thus, the hearing commencing May 12, 2010 will only address whether the applicant’s Code rights have been breached. If required, a hearing with respect to remedy will be scheduled at a later date.

Request for Statement of Additional Facts

4The Tribunal’s Notice of Hearing dated December 16, 2009 directed the applicant to file with the Tribunal and the respondents, a statement of any additional facts upon which he intends to reply and a description of the remedies he seeks, by January 15, 2010. The applicant was further directed to produce copies of arguably relevant documents to the respondents by January 15, 2010. The applicant has not filed a statement of additional facts or produced any arguably relevant documents. The respondents seek an order requiring the applicant to file a statement of additional facts he intends to rely upon.

5If the applicant does not intend to rely upon any facts other than those set out in the original complaint, he is not required by the Tribunal Rules to file a statement of any additional facts. Therefore, an order is not required at this stage.

6If, at the hearing, the applicant does attempt to rely upon additional facts not set out in the original complaint, the adjudicator hearing this matter may be asked to address that issue.

Request for Particulars and Production

7The respondents seek particulars and production of documents relating to the alleged impact of the incident on the applicant, particulars of the alleged damages, particulars relating to the type and nature of the applicant’s disability and details of any efforts to mitigate his damages. The basis for the request is that they are entitled to know the case they have to meet.

8In light of my ruling that the issue of remedy will be dealt with separately, the request for particulars or production relating to alleged impact, damages and efforts to mitigate do not need to be provided at this stage.

9With respect to the particulars of the type and nature the applicant’s disability, I note that the applicant alleges that that he was using an electric scooter as a result of a leg injury (disability) on the day in question. The respondents assert that at one point the applicant arose from the scooter and remained standing. Accordingly, it appears that the respondents may be disputing the existence of the alleged disability.

10Nonetheless, I am not satisfied that it is appropriate to make the requested order at this stage. The onus is on the applicant to establish that he experienced discrimination on the basis of disability and therefore the onus rests with him to call sufficient evidence to establish a disability. If the applicant attempts to call evidence which is not set out in the original complaint and which causes surprise or prejudice to the respondents at the hearing, the adjudicator hearing this matter can address that issue at that time.

11The respondents seek production of any documents (such an owner’s manual) or photographs of the scooter which would indicate the scooter’s make and model number.

12I note that the respondents have stated in their response to the complaint that the applicant was driving a two-wheeled motorized scooter that could be considered a motor vehicle under the Highway Traffic Act and that required the use of driver’s licence. The applicant asserted in his original complaint that he did not require a driver’s licence to drive his scooter. Accordingly it appears that there may be an issue in dispute between the parties about the nature of the scooter and whether it could be considered a motor vehicle. Accordingly I conclude that the requested documentation is arguably relevant and should be disclosed, if it exists. I note that the events in question took place close to five years ago.

13The applicant is ordered to produce to the respondents either a photograph of the scooter he used on the day in question, or other documentation which indicates the make and model of the scooter he used on the day in question (if such photographs or documents exist), within 14 days of the date of this Interim Decision, or to advise the respondents, within 14 days of the date of this Interim Decision if such documentation no longer exists.

14The respondents asked for an Order that if the applicant fails to comply with the requested Orders, above, the transitional application be automatically dismissed. I do not find that it is appropriate to make such an Order at this stage. The consequence, if any, of the applicant’s failure to provide the documentation referred to in paragraph 13 is best addressed by the adjudicator hearing this matter.

15I am not seized.