Goodridge v. Toronto Police Services Board, 2011 HRTO 566

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: March 21, 2011

Citation: 2011 HRTO 566

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 Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (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.

4The purpose of this Interim Decision is to address the complainant’s request for an adjournment of the hearing and other issues raised by him in his faxed correspondence of March 17, 2011.

Request for adjournment

5By faxed correspondence dated March 17, 2011, the complainant requested an adjournment of a pre-hearing conference call scheduled for March 18, 2011 at 4:30 p.m. and of the hearing. The Tribunal received two faxes from the complainant on March 17, 2011, on one of which the time was indicated as 4:39 a.m. and on the second of which the time was shown as 4:57 a.m. I note that a fax received from the complainant the following day shows a time of 12:17 a.m., when the fax in fact was received at approximately 12:17 p.m. As a result, it may be that the time shown on the complainant’s two faxes sent on March 17, 2011 is incorrect, and that they in fact arrived at 4:39 p.m. and 4:57 p.m.

6In any event, the reasons expressed by the complainant for re-scheduling of the conference call were that he was not available at the time scheduled and that he had not been consulted when the conference call was arranged. The reason expressed by the complainant for seeking an adjournment of the hearing is that he wishes to retain legal counsel.

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.

8I reviewed the complainant’s request for an adjournment of the pre-hearing conference call and denied the adjournment. Though correspondence notifying the parties of my decision was prepared, the denial of the adjournment request was expressed to the complainant verbally by the Registrar-Transition on the morning of March 18, 2011, as the complainant has not provided the Tribunal with an expeditious means of getting written correspondence to him.

9I denied the adjournment request as the complainant had not provided any explanation for why he was unavailable for the pre-hearing conference call. In seeking an adjournment of a scheduled date, it is not sufficient simply to say that one is not available without providing a justifiable reason to explain the lack of availability. Further, the pre-hearing conference call was set by the Registrar-Transition without consultation with any of the parties. In any event, the sole purpose of the pre-hearing conference call was to deal with any outstanding issues the parties may have prior to the hearing, and the applicant availed himself of full opportunity to raise his outstanding issues in the faxed correspondence he sent to the Tribunal on March 17, 2011.

10With regard to the complainant’s request for an adjournment of the hearing to retain counsel, this has not been regarded by this Tribunal as a sufficient reason to justify an adjournment. Parties who retain counsel after a hearing date is set are expected to retain someone who is available on the date scheduled: Vallentyne v. Royal Canadian Legion, 2009 HRTO 534.

11In this case, this matter was referred to the Tribunal almost three years ago. It was originally scheduled to proceed to hearing in October 2009. Due to the complainant’s incarceration, the hearing was re-scheduled to commence on March 28, 2011. The Tribunal’s Notice of Hearing was sent to the parties on September 28, 2010, some six months prior to the scheduled hearing date which was set in consultation with all parties. If the complainant intended to retain counsel to represent him at the hearing in this matter, he has had ample opportunity to do so. I am aware from the materials filed with the Tribunal that the complainant on several previous occasions has expressed his intention to retain counsel, but has not done so.

12The events at issue in this proceeding date back almost 8 years, to March 2003. There already have been numerous delays in this matter for a variety of reasons. In my view, it is not justifiable to delay this matter even further so that the complainant can retain counsel, which he has been able to do at any time over the past three years.

13The complainant’s request for an adjournment of the hearing date is denied, and the hearing will proceed as scheduled on March 28 to 31, 2011 commencing at 10:00 a.m. each day.

The Case Assessment Direction dated March 7, 2011

14The complainant alleges that the Case Assessment Direction which was sent to the parties by Vice-chair Reaume dated March 7, 2011 is prejudicial and biased towards his case and has made it impossible for him to get a fair hearing. The complainant requests that Vice-chair Reaume be removed as the adjudicator, that the Case Assessment Direction be stricken from the record, and that the respondents be prohibited from using it against him.

15The March 7, 2011 Case Assessment Direction was written following an earlier pre-hearing conference call held on February 24, 2011, on which the complainant participated. The document records the complainant’s behaviour on the call, including that he arrived late, that he interrupted and spoke out of turn despite repeated attempts by the Vice-chair to get him to wait until he was called upon to speak, that he then became enraged and challenged the Tribunal with allegations of bias, that he persisted with his accusations and spoke loudly and aggressively, and that he abruptly left the call before it was concluded.

16The Case Assessment Direction characterizes the behaviour displayed by the complainant as unacceptable, and makes reference to this Tribunal’s caselaw about the conduct that is expected of parties who appear before it, namely that they are expected to conduct themselves with courtesy and respect for each other and the Tribunal. This document also warns the complainant, again in accordance with this Tribunal’s caselaw and its power under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, to prevent an abuse of its processes, that if he persisted in engaging in acts of aggressive disrespect for the Tribunal and the parties, the Tribunal would have no choice but to dismiss his complaints on the basis that his behaviour constitutes an abuse of the Tribunal’s process. This document then went on to state that, if the complainant cooperates with the other parties and the Tribunal, the Tribunal would continue to make every effort to ensure that the issues he has raised in his complaints are dealt with in a fair, just and expeditious manner.

17There is nothing at all inappropriate or indicative of bias in what Vice-chair Reaume stated in the Case Assessment Direction. She made reference to unacceptable behaviour by a party in a proceeding before this Tribunal. She referred the complainant to this Tribunal’s caselaw setting out its expectations of the conduct of parties appearing before it, and setting out the potential consequences of continuing to engage in unacceptable behaviour. And she assured the complainant that this matter would be dealt with fairly and justly if his conduct conforms to the Tribunal’s expectations for courtesy and respect. All of this was entirely appropriate in the circumstances.

18In any event, I will be hearing this matter as the adjudicator, so the applicant’s request for Vice-chair Reaume to be removed is moot. With regard to his request that the Case Assessment Direction be struck and that the respondents be prohibited from relying upon it, these requests are denied.

Objection to Commission counsel

19The complainant has raised various allegations against Commission counsel, including that she conspired with and advocated on behalf of the respondents, apparently in relation to the position she took on the Commission’s behalf in relation to the complainant’s request that a previous Vice-chair with involvement in this matter recuse himself. The complainant further alleges that Commission counsel threatened him, by characterizing his statement that he would report her to the Law Society as threatening. The complainant states that, as a result, Commission counsel cannot be allowed to continue in this case.

20As the complainant is aware, Commission counsel does not act as his lawyer. Her role is to represent the Commission’s interest in this proceeding. Her client is the Commission, and that is the source of her instructions. There is no basis in the matters raised by the complainant as would justify my removing Commission counsel from this proceeding, assuming I have the ability to do so. She is entitled in this proceeding to take whatever positions on whatever issues she decides to take, on the basis of the Commission’s instructions. Further, whether or not Commission counsel asked the complainant if he was threatening her when he stated that he intended to file a complaint against her with the Law Society, this is not any sufficient basis upon which to remove her as counsel in this proceeding.

Request for production from Commission

21The applicant has requested that the Commission provide him with all disclosure that the Commission has regarding his complaints.

22Pursuant to Rule 59 of the Rules of Practice regarding Commission-referred complaints, the Commission is required to disclose to the other parties the full results of its investigation including, but not limited to, witness statements that form part of its investigation file, together with any other arguably relevant documents or records in its possession or within its control. This is to be done within 30 days of the Initial Conference Call, or if there is mediation, within 30 days of an unsuccessful mediation.

23In this proceeding, disclosure was made by the Commission in accordance with its obligations under Rule 59. The material in the file indicates that, during the period when the complainant was incarcerated, he lost the disclosure made to him by the Commission and the Commission agreed to replace it.

24No basis is provided by the complainant to explain why he requires further disclosure from the Commission. Accordingly, the complainant’s request is denied.

Request to add respondents

25The complainant next requests that all court security officers whose badge numbers he provided “be put on trial” and not just the two officers named as personal respondents to his first complaint. I will treat this as a request to add these individuals as personal respondents to this proceeding.

26It is far too late in the day for the complainant to be raising such a request. As stated above, this matter was referred to the Tribunal for a hearing almost three years ago. The identification of the parties to this proceeding is a preliminary matter that ought to have been raised at a much earlier time. I am aware that very early on, an order was made by this Tribunal for the respondent Board to disclose the names of the officers associated with the badge numbers identified by the complainant, and that the respondent Board complied with this order on July 16, 2008. If any request was to be made to add any of these individuals as party respondents to this proceeding, such request could and should have been made shortly after this disclosure and not some two and a half years later.

Request for disclosure of full name of security guard

27The complainant states that Commission counsel knows the full name of a guard named “Kenny” who works at Toronto East Detention Centre and who is alleged to have been involved in an incident at that institution on March 31, 2003 that is at issue in this proceeding. The complainant states that Commission counsel has refused to provide him with the full name of this guard.

28If the Commission does know the full name of this guard, it is directed to disclose this name to the complainant and the respondents forthwith.

29The complainant also raises an allegation that Commission counsel was scheduled to interview this guard, and then refused to do so. Whether or not that is the case, this is counsel’s prerogative and is not something with which this Tribunal will intervene.

Case management

30On the conference call held on March 18, 2011, it was determined that the hearing in this matter would be bifurcated, so that I will first determine whether or not there has been a violation of the Code, and then at a later date, and only if a violation of the Code is found, determine any appropriate remedy.

31In addition, it has been determined that for medical reasons, one of the respondents’ witnesses, Sue Chow, will be permitted to testify by phone.