Goodridge v. Toronto Police Services Board, 2011 HRTO 1024

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Greg Goodridge

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board, Anthony Piazza and Maria Perry

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: May 27, 2011

Citation: 2011 HRTO 1024

Indexed as: Goodridge v. Toronto Police Services Board

1This is a case that was referred to the Tribunal by the Commission on May 27, 2008. It relates to an amended complaint filed by the complainant with the Commission on March 11, 2004, and a further complaint filed by the complainant with the Commission on July 7, 2005.

2The complainant alleges that he experienced discrimination because of his race, colour and ethnic origin with respect to the provision of services, goods and facilities contrary to ss. 1 and 9 of the Code and reprisal contrary to ss. 8 and 9 of the Code, arising out of several incidents with court security officers in which the applicant alleges that he was assaulted and/or verbally harassed because of his race or because he had filed a complaint with the Commission.

3This case has been the subject of numerous preliminary decisions and pre-hearing attendances and conference calls. The case originally was scheduled to proceed to hearing on October 19 to 22, 2009, but had to be re-scheduled because the complainant was incarcerated. Following the complainant’s release and in consultation with all parties, the case was re-scheduled to proceed to hearing on March 28 to 31, 2011. By Interim Decision dated March 21, 2011 (2011 HRTO 566), the complainant’s request for an adjournment of these hearing dates was denied.

4However, the hearing did not proceed as scheduled, as the complainant once again was incarcerated on the scheduled hearing dates. Following the complainant’s release from incarceration and in consultation with all parties, including the complainant, the hearing was re-scheduled to proceed on June 2, 2011.

5The purpose of this Interim Decision is to address the complainant’s further request for an adjournment of the hearing and other issues raised by him in correspondence dated May 16, 2011 and in undated correspondence, which were forwarded to the Tribunal by Commission counsel on May 27, 2011.

6By an undated letter which appears to have been sent by the complainant to Commission counsel on May 27, 2011, and then forwarded by her to the Tribunal, the complainant requests an adjournment of the hearing scheduled for June 2, 2011. The complainant makes this request on the following bases: due to my alleged conflict of interest because of my prior involvement in this case; due to the reduction of the hearing from four days, as previously scheduled, to one day; and due to the applicant’s statement that he intends to proceed with a judicial review of alleged misconduct by the Tribunal.

7The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states:

The HRTO discourages requests for adjournments outside the ten-day period to request rescheduling of a hearing . . . . Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax, copied to the other parties.

8With regard to the first basis for the complainant’s adjournment request, he takes the position that I should be prohibited from hearing this case due to my involvement with this case prior to the hearing, which the complainant alleges constitutes a conflict of interest. The complainant submits that an adjudicator should be completely impartial and have had no prior involvement with a case prior to the hearing but be completely new to the case in order to maintain impartiality. The complainant references my prior involvement in this case as a result of my Interim Decision dated March 23, 2011. The complainant also alleges that I expressed biased and opinionated statements and appeared to be advocating on behalf of some of the parties and against him and his interests.

9There is no proper basis for the complainant’s submission that an adjudicator who has had prior involvement with a case or who has issued an interim decision is thereby prohibited from hearing the matter. This situation occurs frequently at this and other administrative tribunals, and also occurs in the courts, particularly where a judge has been assigned to case manage a proceeding. What is required at law is that the adjudicator be neutral and unbiased and render her or his decision on the basis of the evidence tendered at the hearing. This Tribunal does have a practice that a Vice-chair who has participated in mediation in a matter cannot conduct the hearing, but I have not been involved in any mediation in this matter.

10With regard to the complainant’s allegations that I expressed biased and opinionated statements about this case, no specific statement of this nature that I am alleged to have expressed is referenced by the complainant. There is no question that in my prior Interim Decision, I ruled against the complainant’s request for an adjournment and in relation to some but not all of the other preliminary issues he raised, but those were adjudicative decisions made by me for the reasons expressed in that Interim Decision and do not provide support for an allegation of actual or perceived bias.

11The next basis for the complainant’s adjournment request is his allegation that the hearing format has been changed “illegally” from what it was originally without explanation or notice. In particular, the complainant relies upon the fact that the hearing in this matter originally was scheduled for four consecutive days and now has been scheduled for only one day, and also that the hearing has been bifurcated to first address the issue of whether the complainant’s rights under the Code have been violated and then at a subsequent stage, if a violation of the Code is found, to address any issues of remedy. The complainant submits that these changes were made in an attempt to dismiss his case. He also submits that by this change, the Tribunal has illegally prohibited scheduled witnesses from testifying.

12The complainant’s submissions reveal a lack of understanding of the Tribunal’s scheduling process. It is correct that previously this matter had been scheduled to be heard over four consecutive days. However, on two previous occasions, these scheduled hearing days had to be adjourned at the last minute due to the complainant’s incarceration, which created administrative inconvenience and disruption for the Tribunal as these hearing days had been scheduled for some time and other matters could not be re-scheduled on such short notice to utilize this time. It is not uncommon for the Tribunal to schedule one initial day for a hearing, and then subsequently schedule additional days as may be required to complete the hearing. This is an administrative scheduling matter, and is all that has been done in this case.

13No witnesses have been prohibited from testifying. Rather, the parties have been directed that on the first day of hearing, it is expected that the Tribunal will hear the complainant’s evidence, both in chief and in cross-examination, and if there is still time, will proceed to hear the evidence of the two personal respondents. If additional hearing days are required to hear further witnesses and/or final argument from the parties, these days will be scheduled subsequent to the initial June 2, 2011 hearing day as may be required. There is no necessity or requirement that a hearing before this Tribunal proceed to completion on consecutive days, nor is that the general practice of this and many other administrative tribunals.

14With regard to the complainant’s objection to the bifurcation of the hearing, this matter was discussed on the conference call held on March 18, 2011, of which the complainant had notice but did not participate. The decision to bifurcate the hearing was made on consent of all parties participating on the conference call. Contrary to the complainant’s submissions, bifurcation of the hearing does not create any “new hurdle” for his case. In this proceeding, the complainant always was required to establish that his rights under the Code were violated on the basis of evidence tendered at the hearing. The only change is that, instead of hearing evidence regarding potential remedies at this stage of the hearing, such evidence would be heard at a later stage if a violation of the Code is found. The complainant is not prejudiced in any way by this manner of proceeding.

15Finally, the complainant requests an adjournment on the basis that he intends to seek judicial review of what he alleges to be “misconduct” on the part of the Tribunal. The complainant has not served any Application for Judicial Review, which would set out the grounds upon which he is seeking judicial review and the relief sought. In the absence of the issuance and service of an Application for Judicial Review, it is not this Tribunal’s general practice to adjourn a hearing on the basis that a party expresses an intention to proceed with judicial review.

16With regard to the complainant’s allegations that the Tribunal has engaged in misconduct, the complainant alleges that the Tribunal, counsel for the Toronto Police Services Board and counsel for the individual respondents sent an officer to attend at his criminal court appearances between March 22 and April 6, 2011. He alleges that this officer spoke with his criminal counsel, and attempted to adversely influence his criminal case. The complainant states that this has caused him to file complaints against these counsel, including his own former criminal counsel, with the Law Society of Upper Canada, and he asks this Tribunal to censure counsel for the respondents for their actions.

17It is not my role or jurisdiction to censure counsel for actions that are alleged to be in violation of their obligations to the Law Society of Upper Canada. That is the Law Society’s role. In saying this, I have no knowledge whatsoever of any impropriety by counsel for the respondents, nor do I have any knowledge that they had any involvement in any appearance by an officer at the complainant’s criminal court proceedings.

18I am aware that, when the complainant was incarcerated shortly before the previously scheduled hearing dates, this Tribunal attempted to obtain information as to the status of the criminal proceeding in order to determine whether any of the scheduled dates could be utilized for the hearing. This turned out not to be possible as the complainant was not released on bail until after the last scheduled hearing day. I understand that an OPP officer was the source of information obtained by this Tribunal regarding the status of the criminal court proceeding. Once again, this was for the purpose of obtaining information as to the status of the criminal proceeding in order to determine whether the hearing in this matter could proceed on any of the scheduled dates, and not for any improper purpose.

19The complainant also alleges that he attempted to fax correspondence to the Tribunal on May 9, 2011, to raise his concerns, but that the Tribunal and the respondents purposely turned off their fax machines in order to avoid receiving this information. This is not true. The Tribunal’s fax machines have been operating and have received numerous faxes from parties in other matters during this time period.

20Accordingly, I do not find any basis to support the complainant’s allegations of misconduct as would support an adjournment of the hearing in this matter.

21Accordingly, for all of the foregoing reasons, the complainant’s request for an adjournment is denied and the hearing will proceed as scheduled on June 2, 2011, commencing at 10:00 a.m.