Noble v. Toronto (City), 2011 HRTO 466

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Noble

Applicant

-and-

City of Toronto

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: March 7, 2011

Citation: 2011 HRTO 466

Indexed as: Noble v. Toronto (City)

1The hearing in this Application is scheduled for March 21 and 22, 2011. The main issue in the Application is whether the applicant’s race and/or colour were all or part of the reason the respondent’s staff asked or required the applicant to leave the respondent’s North Toronto Memorial Community Centre (“NTMCC”) gymnasium on October 20, 2009.

2This Interim Decision addresses the applicant’s December 2010 Request for an Order during Proceedings (“the Request”) seeking an order that the respondent provide him with certain documents and particulars in advance of the hearing. Specifically, the applicant seeks:

1. documentation and particulars indicating the maximum number of individuals permitted to be in the gym of the North Toronto Memorial Community Centre (“NTMCC”) pursuant to the Building Code;

2. particulars of the respondent’s procedures for tracking the number of adults in the gym at a given time in respect of its drop-in programs, including procedures used to verify the ages of all individuals present in the gym at a given time; and

3. particulars as to two of the respondent’s witnesses’ responses to certain aspects of the applicant’s intended evidence regarding their October 20, 2009 conversation(s), specifically:

a. David Raiken’s response to the applicant’s claim that when the applicant told Mr Raiken that he was not in the gym to play basketball, Mr Raiken replied “What am I supposed to think if you are wearing shorts and a t-shirt?” or words to that effect;

b. Mr Raiken’s and James Marrelli’s response to the applicant’s claim that Mr Raiken and Mr Marelli told the applicant that he was not permitted in the gym because only 16 adults were permitted in the entire gym during the drop-in programs;

c. Whether Mr Marelli agrees that he told the applicant that the policy relied upon to exclude the applicant from the gym was based on existing law; and

d. Whether Mr Marelli agrees he told the applicant that he had not seen the applicant at the NTMCC often.

3The Tribunal’s power to order production of documents and particulars arises under Rule 1.7(p) of the Tribunal’s Rules of Procedure. Rule 1.7(p) provides that In order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may require a party or other person to produce any document, information or thing.

4The party seeking production of a document must satisfy the Tribunal that the document in question is arguably relevant to an issue in the Application.

Maximum number of individuals permitted to be in the gymnasium of the NTMCC pursuant to the “Building Code”

5The applicant contends that the Building Code requirements are arguably relevant to the issues in the Application. He submits this is because one of the respondent’s staff told him that safety concerns were part of the reason for the respondent’s policy that only 16 adults were permitted in the gym during its drop-in programs. Even if that is true, however, there is no allegation that the staff person in question suggested that any alleged safety concerns were in any way based on the Building Code.

6Moreover, the respondent does not assert safety concerns as the basis for the policy in question. On the contrary, the respondent submits that there is no nexus between the legal capacity of the NTMCC gymnasium and the respondent’s policy which restricts spectators at drop-in programs.

7In the circumstances, I do not see how the maximum number of persons permitted in the gymnasium pursuant to the provisions of the Building Code has any bearing on the issue(s) in the Application. This part of the Request is therefore denied.

Procedures for tracking the number of adults/verifying the age of individuals in the gym

8The applicant submits that this information is arguably relevant to the issues in the Application. He submits this is because the respondent’s stated grounds for excluding him from the gym on October 20, 2009 was that only 16 adults were permitted in the entire gym and that number was exceeded. The applicant submits that the respondent’s procedure for determining whether the people in the gym were adults is therefore not only relevant but material. For his part, the applicant contends that the respondent does not verify the ages of participants in the drop-in programs.

9The respondent opposes this part of the Request and contends that its procedures for verifying program participants’ ages is not relevant to the issues in the Application.

10The applicant has not established that the respondent’s age verification procedures or the lack thereof are arguably relevant to the issue(s) in the Application. The applicant is clearly an adult and on all accounts he was perceived and treated as an adult by the respondent when he attempted to enter the gym on October 20, 2009. The thrust of the applicant’s argument seems to be that the respondent excluded him from the gym as an adult based on its unverified assumption that the applicant was an adult and that the 16 program participants who had signed up and paid to play adult basketball were adults. Even if that is true, however, I do not see how it is arguably relevant to whether the applicant’s race or colour were all or part of the reason the applicant was required to leave the gym on October 20, 2009. This part of the Request is denied.

Particulars regarding Conversations on October 20, 2009

11In his Request, the applicant also seeks “particulars” of two of the respondents’ witnesses’ reaction to certain parts of the applicant’s intended evidence regarding his October 20, 2009 conversation(s) with them.

12I begin by noting that the Request was filed before the parties were required to exchange and file will-say statements pursuant to Rule 17 of the Tribunal’s Rules of Procedure. Generally speaking, the Tribunal’s Rules govern the exchange of documents and will-say statements in advance of a hearing before the Tribunal; and except in the rarest of circumstances, the Tribunal will not require production of documents or particulars in advance of the time lines contemplated by its Rules: Garrelhas v. ICE Consultants Inc., 2005 HRTO 51 at para 14-15. T.S. v. Toronto District School Board, 2010 HRTO 605 at para. 13.

13The will-say statements for Messrs Raiken and Marrelli have now been provided to the applicant as required by the Tribunal Rules. According to the Tribunal Rules, the parties must provide each other with “brief statement summarizing each witness’ expected evidence.” (Rule 17.2) In my view, the will-say statements for Messrs Raiken and Marrelli comply with the obligation in the Tribunal’s Rules. They set out the witnesses’ anticipated evidence in sufficient detail to allow the applicant to prepare for the hearing and to know in advance the case he has to meet. To the extent that the applicant wishes to put questions to the respondent’s witnesses about details of his conversations with them, he will have this opportunity at the hearing of the Application.

14Accordingly, the applicant’s request for particulars is denied.