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: Leslie Reaume
Indexed as: Cook v. Ottawa Police Services Board
APPEARANCES BY
Wayne Cook, Applicant (Self-represented)
Ottawa Police Services Board and David Merkel, Respondents (David Patacairk, Counsel)
[1] This Interim Decision arises from an Application filed by Wayne Cook against the Ottawa Police Services Board and David Merkel (the “respondents”) alleging discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
[2] A preliminary hearing was scheduled for January 11, 2011, in accordance with the Interim Decision of the Tribunal dated August 12, 2010, 2010 HRTO 1675 (“McKellar Decision”). In that Interim Decision, the Tribunal dismissed a number of the applicant’s allegations against the corporate respondent on the basis of section 34(11) of the Code. In addition to setting the remaining matters down for a preliminary hearing, the Tribunal directed the parties to file any submissions and caselaw they intended to rely on no later than 30 days before the new hearing date.
[3] A few days prior to January 11, 2011, the applicant sought an adjournment of the hearing on the basis of the late filing of the respondents’ book of authorities. The parties were advised to appear to argue the contested adjournment request. The applicant appeared in person and the respondents appeared by conference call.
[4] At the outset of his submissions, the Applicant raised a concern about not receiving a requested accommodation from the Tribunal in the form of a laptop with access to the internet. He was asked whether he could proceed with the submissions in relation to the adjournment request. The applicant confirmed that the accommodation related to his ability to participate in the preliminary hearing on the merits rather than the adjournment request and he indicated that he was prepared to proceed.
[5] The applicant served and filed his material on time. The respondents attempted the same, but inadvertently sent the original package to the wrong address. A second package was received by the applicant approximately three business days prior to the January 11, 2011 hearing date.
[6] The package contained a bound document with 14 tabs, representing the various cases the respondent intended to rely on at the preliminary hearing. The applicant argued that he was incapable of reviewing the respondents’ material in the short time before the hearing given his multiple disabilities.
[7] The request for adjournment was granted. The parties agreed to set a new date for the preliminary matter to be heard. The applicant requested that the matter be heard in Ottawa, Ontario. The respondents consented and the Tribunal agreed on the understanding that the applicant would not be entitled to make any further requests to change the venue and that if he was unable to attend in Ottawa on the scheduled date, he would appear by conference call. The applicant also requested that the matter be scheduled after May 30, 2011, for personal reasons and the respondent has consented.
[8] The applicant made a request for production of files in the possession of the Ontario Human Rights Commission (“OHRC”) which relate to his complaint against the National Judicial Institute (“NJI”). The background and complexities of this case are clearly set out in the McKellar decision. For the purpose of this Interim Decision, I note the following allegations which form the basis of the production request:
a) the applicant filed a complaint with the OHRC alleging discrimination against the NJI;
b) the applicant was arrested at the offices of the NJI; and
c) the arrest of the applicant was an act of reprisal on the part of the Ottawa Police Services Board for the filing of the complaint against the NJI.
[9] In the McKellar decision, at paragraphs 29 and 30, the Tribunal noted the following unusual features of the applicant’s allegations of reprisal:
There is no allegation that the respondents to this Application had any knowledge that the applicant had filed a complaint under the Code against the National Judicial Institute – there is only an allegation that the National Judicial Institute requested that the Ottawa Police attend at its premises and deal with the individual (or perhaps individuals) engaged in protest actions there, one of whom was the applicant. The National Judicial Institute has since disappeared from the picture insofar as proceedings under the Code are concerned.
The Commission dismissed the applicant’s complaint against the National Judicial Institute in 2008. That event prompted the filing of the Application to the Tribunal against the Commission and Ombudsman referred to above that was dismissed in early June 2010. An additional unusual feature of the reprisal allegations is the fact that the applicant pled guilty to a contravention of the Criminal Code in respect of his involvement in the protest for which he was arrested.
[10] The applicant argues that these excerpts from the McKellar Decision represent the rationale for seeking disclosure from the OHRC. The applicant wishes to review the files so that he can determine if sufficient congruency exists between the two agencies to prove that his allegation of reprisal has a reasonable prospect of success.
[11] The applicant relies on the Interim Decision of the Tribunal in Cook v. Ottawa Police Services Board, [2010 HRTO 923](https://www.minicounsel.ca/hrto/2010/923), for the argument that the Tribunal has the jurisdiction to order the materials requested from the OHRC. That Interim Decision also related to a Request for materials contained in the files of the OHRC. The Request was dismissed on the basis that there was no evidence that the materials were arguably relevant.
[12] I would dismiss this Request on the same basis. The entire reprisal allegation is based on the suspicions of the applicant. He speculates that there may be something in the files held by the OHRC which would assist him. There is no evidence, at this stage, that the records held by the OHRC, many of which would already be in the applicant’s possession in any event, are arguably relevant to the issues which will be addressed at the preliminary hearing. The Request for production is denied.
[13] This matter is referred back to the Registrar-Transition to schedule a one-day preliminary hearing in Ottawa, Ontario, as soon after May 30, 2011 as possible.
Dated at Toronto, this 18^th^ day of January, 2011.
“Signed by”
Leslie Reaume
Vice-chair