Human Rights Tribunal of Ontario
Between:
James Rastel Applicant
-and-
Dryden Police Services Board and Dale Engstrom Respondents
Reconsideration Decision
Adjudicator: Geneviève Debané Date: September 28, 2011 Citation: 2011 HRTO 1769 Indexed as: Rastel v. Dryden Police Services Board
Written Submissions: James Rastel, Applicant (Self-represented)
1James Rastel has filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the basis of age. The hearing of the Application is scheduled for November 16-17, 2011, in Thunder Bay.
Background
2The Dryden Police Services Board and Dale Engstrom (the respondents) filed two Form 10 Requests for Order during a Proceeding ("RFOP"): a request to amend the Response and a request for production of documents. The applicant did not file any submissions opposing the RFOP.
3On August 23, 2011, the Tribunal issued Interim Decision 2011 HRTO 1576 (the "August 23 Interim Decision"), which concludes at paras. 5 and 6:
The notes taken by the applicant during the evaluation process are arguably relevant to the proceedings. There is no basis for a claim of privilege. The applicant is therefore required to disclose these notes to the respondents. In accordance with the Tribunal's Rules, the applicant is required to produce those documents to the respondents immediately.
The Tribunal makes the following orders:
a. The request to amend the Response is allowed;
b. The production of notes taken by the applicant is ordered;
c. The notes are to be provided forthwith to the respondents.
4On September 15, 2011, the applicant filed a Request seeking Reconsideration of the August 23 Interim Decision ("reconsideration Request") with respect only to the ordered production of notes. This decision addresses the applicant's reconsideration Request.
Decision
5Rule 26.1 of the Tribunal's Rules of Procedure provides that a party may request reconsideration of a final decision of the Tribunal. A decision will only be considered a final decision where the decision has the effect of finally determining the substance of the dispute or a central element of the dispute between the parties.
6In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal considered at length the question of when a decision should be considered final for the purposes of the reconsideration power. After carefully considering the policy issues and the relevant authorities the Tribunal concluded:
As a general principle, having regard to the approach taken in other forums as well as the above discussion, it is reasonable to view a "final decision" as one that disposes of some or all of the central issues in the complaint as between the parties. This general principle will take on a more precise shape as the Tribunal applies it to cases before it.
7Having considered these authorities and the context in which the issue arises, I have concluded that the Decision is not a final one. I find that it does not deprive the applicant of "any prospect of a remedy" as against the respondents and does not dispose of the entirety of the complaint. Not being a final decision, it cannot, at this time, be the subject of a reconsideration request. See Galuego v. Kensington Health Centre, 2009 HRTO 179.
8Further, I note that the applicant did not file any submissions with respect to the respondents' requests for orders. It is inappropriate for a party to attempt to use the Tribunal's reconsideration power as an opportunity to file submissions with respect to an issue that has already been determined by the Tribunal.
9For these reasons the Reconsideration request is dismissed.
10However, given that the applicant has now raised issues about the potential for being required to disclose notes of privileged conversation between him and counsel, the Tribunal will clarify the scope of the production ordered by the August 15, 2011 Interim Decision. The applicant is ordered to produce to the respondents "the notes taken by the applicant during the evaluation process". There is nothing to suggest in the Interim Decision that the applicant is required to produce copies of notes which summarize conversations with counsel. If for some reason, notes with respect to conversations with counsel are on the same page as "the notes taken by the applicant during the evaluation process", then the applicant can redact this portion of the notes; however, he must bring the original unredacted notebook to the scheduled hearing dates in the event that there is any dispute about the redacted portions and it is necessary for the Tribunal to provide further direction.
Order
11The Tribunal Orders the following:
a. The reconsideration Request is dismissed;
b. The applicant is ordered to produce to the respondents "the notes taken by the applicant during the evaluation process" or a redacted copy of the notes in accordance with paragraph 10 of this Reconsideration Decision no later than by October 3, 2011; and
c. The applicant must bring his original unredacted notebook to the scheduled hearing.
12I am not seized.
Dated at Toronto, this 28th day of September, 2011.
"Signed by"
Geneviève Debané Vice-chair