Cook v. Ottawa Police Services Board, 2010 HRTO 923

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne Cook Applicant

-and-

Ottawa Police Services Board and David Merkel Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: April 28, 2010 Citation: 2010 HRTO 923 Indexed as: Cook v. Ottawa Police Services Board

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, dated June 29, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on June 19, 2007.

2The purpose of this Interim Decision is to address various Requests to Intervene which have been filed, Requests for a Tribunal Ordered Inquiry filed by the applicant, a Request for Order for production and to add a party filed by the applicant, and various Summonses to Witness which have been served or may be served by the applicant.

3The Application relates to an incident on March 19, 2007, when the applicant was arrested while conducting what he describes as a peaceful protest outside the National Judicial Institute in Ottawa, based on an outstanding warrant for his arrest on charges of criminal harassment. The applicant alleges that while in custody, he did not receive proper accommodation for his diabetes. The applicant further alleges that his arrest was in reprisal for his having filed a complaint with the Ontario Human Rights Commission, and that he was subject to “gender profiling”.

4The respondents seek dismissal of the Application in whole or in part on the basis of a civil action that was filed by the applicant against them and various other defendants on January 17, 2008. This action subsequently was dismissed without costs as against the respondents and other defendants by order dated October 20, 2008. A preliminary hearing to hear oral submissions regarding the respondents’ request for dismissal is scheduled to proceed in Ottawa on May 27, 2010.

Requests to Intervene

5On April 14, 2010, various Requests to Intervene were filed purportedly on behalf of the Children’s Rights Coalition, the Coalition of Aboriginals (CAMP), and Pro-Marriage, Pro-Family. No material was filed with the Tribunal to confirm that any of these Requests to Intervene had been served on the parties to the Application as required by the Rules. All three of these Requests to Intervene were signed by an individual named Gurmail Singh Bhinder of Custom Legal Services. No direct contact information was provided for any of the organizations seeking to intervene, and no supporting material was filed to establish the nature of any of these organizations or their interest in this proceeding. For all of these reasons, these Requests to Intervene are denied.

6Also on April 14, 2010, the Tribunal received a further Request to Intervene by an individual named Shawn Tedder which is dated March 12, 2010. Once again, no material was filed with the Tribunal to confirm that this Request to Intervene had been served on the parties to the Application as required by the Rules. The Tribunal previously has received e-mail correspondence from Mr. Tedder describing himself as a Director of Fathers are Capable Too (“FACT”); however, the Request to Intervene is made by Mr. Tedder as an individual and not on behalf of FACT. In the Request to Intervene, the only information provided to explain Mr. Tedder’s interest in the issues to be addressed in this proceeding is stated as “significant public interest issues affecting most Canadians” and “refusal of medical treatment (diabetes)”. No information is provided as to how Mr. Tedder has any specific interest or expertise in the matters at issue that would be of assistance to the Tribunal. The Request to Intervene is denied.

Request for Tribunal Ordered Inquiry

7On April 16, 2010, the applicant filed various Requests for a Tribunal Ordered Inquiry. The evidence or nature of the evidence to be obtained by the inquiry was described as “releases, correspondence, all documents directly related to the respondents’ motion”.

8As stated in Visconti v. Great-West Life Assurance Company, 2010 HRTO 338 at para. 5:

a Tribunal ordered inquiry will not be a routine event and will not be a substitute for the usual production process contemplated by the Rules. In the normal course the parties are required to produce all arguably relevant documents in their possession. If the parties cannot agree or if one party has reason to believe that there are documents in the possession of a party or other person that have not been produced, the Tribunal has the authority to order the production of materials.

9The Requests for a Tribunal Ordered Inquiry filed by the applicant in this case are really a request for production of documents relevant to the request for dismissal brought by the respondents. As such, the appropriate procedure to seek such production is to file a Request for Order for production.

10The Requests for a Tribunal Ordered Inquiry are denied.

Request for Production

11The applicant has filed a Request for Order dated April 16, 2010 seeking production of “all Ontario Human Rights [Commission] files” related to his complaint. The applicant states that the Commission has failed to provide these files since June 2009.

12While the Tribunal has the power under its Rules to order production as against a non-party to the proceeding, I must nonetheless be satisfied that the documents sought are arguably relevant. At this stage of the proceeding, the only matter scheduled is a preliminary hearing regarding the respondents’ request to dismiss because of the civil action. No material has been provided to me to indicate how any of the contents of any files in the Commission’s possession would be arguably relevant to this preliminary issue or why all documents that are arguably relevant to this issue would not already be in the possession of the parties themselves. Accordingly, the material filed does not establish a sufficient basis to make the order sought and the request for a production order against the Commission is denied.

Request to Add a Party

13The applicant also seeks an order adding the National Judicial Institute as a party to this proceeding. No material was filed with the Tribunal confirming that this Request for Order was served on the National Judicial Institute. As a person that the applicant is seeking to add to this proceeding, the National Judicial Institute is entitled to notice of this request and an opportunity to respond. In addition, no basis was provided in the material filed by the applicant to support why the National Judicial Institute should be added as a party, particularly at this stage of the proceeding when the Tribunal is only addressing the respondents’ preliminary request to dismiss.

14The request to add the National Judicial Institute as a party is denied.

Summonses to Witness

15The applicant requested Summonses to Witness from the Tribunal to serve on various individuals to require their attendance at the preliminary hearing on May 27, 2010. On April 16, 2010, the applicant provided a list of 13 witnesses that he states that he intends to serve with Summonses to Witness to compel their appearance at the preliminary hearing. This list includes the Chief of Police for the Ottawa Police Service, the personal respondent David Merkel, the Attorney General for the Province of Ontario or designate, the Chief Commissioner of the Ontario Human Rights Commission or designate, the Ombudsman of Ontario or designate, various lawyers and Crown Attorneys, and various other individuals.

16Some of these individuals were defendants or counsel for defendants to the civil action, and the intent of calling them as witnesses is to establish that no release was obtained regarding the applicant’s human rights complaint. In my view, the attendance of these witnesses is not required to establish this simple fact. The applicant also appears to be seeking to compel the attendance of these individuals in order to obtain disclosure of documents. That is not the appropriate procedure to obtain disclosure or production. Rather, a Request for Order should be filed seeking production of arguably relevant documents.

17In this case, I appreciate that the applicant does not have legal counsel and thus may not be familiar with the appropriate procedure to obtain production. As a result, I am prepared to make an order requiring the respondents to produce all documents which are arguably relevant to their request to dismiss, including any correspondence or other documents relating to or leading to the dismissal order issued by the court in October 2008 and any release that may have been obtained from the applicant. These documents shall be disclosed to the applicant and filed with the Tribunal by no later than 20 days after the date of this Interim Decision.

18Other individuals who are identified as potential witnesses are merely stated to have “direct personal knowledge” of the respondents’ request to dismiss without specifying what the nature of that knowledge may be and how it is relevant to the issue to be addressed at the preliminary hearing.

19In these circumstances, the Summonses to Witness issued to the applicant are stayed and anyone served with a Summons to Witness is not required to appear at the preliminary hearing on May 27, 2010. If the applicant has not yet effected service of a Summons to Witness on some of these individuals, he is ordered not to take any further steps to do so. If he has served a Summons to Witness on anyone who is not already a party to this proceeding or a member of the Ottawa Police Service, the applicant is directed to contact all such individuals and advise them that they are not required to appear at the May 27, 2010 preliminary hearing.