Bruce v. Greater Essex County District School Board, 2012 HRTO 1657

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Bruce Applicant

-and-

Greater Essex County District School Board and Robert Colak Respondents

INTERIM DECISION

Adjudicator: David Muir Date: August 31, 2012 Citation: 2012 HRTO 1657 Indexed as: Bruce v. Greater Essex County District School Board

1The applicant filed an Application on March 19, 2009 (the "s. 34 Application"), under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). In it the applicant alleged that the respondents reprised against him contrary to the Code on the basis of incidents in January and February 2009 which were related to Applications he previously filed in 2008 alleging discrimination in employment. In 2012 HRTO 66 (the Decision) several of the allegations of reprisal were dismissed as having no reasonable prospect of success.

2This interim decision deals with a Request for Order during Proceedings (Request) filed by the applicant seeking the reinstatement of one of the allegations dismissed in the Decision; the amendment of the Application to include an allegation that section 9 of the Code has been violated by the respondents; the addition of an individual respondent; and a stated case of contempt on the part of the respondent for an alleged withholding of arguably relevant documents in a timely manner.

3The allegations contained in the original Application which are germane to the Request of the applicant were set out in the Decision as follows:

a. the refusal to accept, and the return of, the envelope containing the Application the applicant was attempting to deliver to an individual respondent in another Tribunal proceeding;

b. the issuance of a trespass letter by Mr. Colak;

c. the delivery of that trespass letter by the police officer; and,

d. the utterances of the police officer when delivering the trespass letter.

4The envelop referred to in paragraph 3(a) above was a copy of one of the prior Applications filed by the applicant which the Tribunal had ordered him to deliver to a respondent in that prior Application, D.G. The applicant attempted to deliver the envelope to D.G. at the school on January 27, 2009 and it was returned to him on January 30, 2009. D. G. is the proposed new respondent in this Application.

5The allegations in paragraphs 3(a), (c) and (d) were dismissed as having no reasonable prospect of success. However I was unable to conclude that there was no reasonable prospect of the applicant establishing that the issuance of a trespass letter to the applicant by Mr. Colak was intended as a reprisal pursuant to section 8 the Code.

The Reinstatement Issue

6The applicant seeks the reinstatement of allegation 3(a) above on the basis that new documents received from the respondent recently, establish without a doubt that the return of the package of materials was intended as a reprisal by the respondent Board and Colak. The applicant alleges that without any doubt the documents in question establish that Mr. Colak spoke to D.G. and a board official before deciding to send the package back to the applicant. The applicant also alleges that these documents were deliberately withheld and consequently the respondents should be found to be in contempt of the Tribunal.

7The document relied on by the applicant are handwritten notes said to be prepared by the respondent Colak which indicate that he spoke with both D.G. as well as an official of the respondent Board some time after the applicant attended at the school and attempted to deliver a copy of the prior Application to D.G. The handwritten notes are undated and make no specific reference to the applicant's attendance at the school on January 27, 2009. Nor do they make any reference to the decision to return the material to the applicant on January 30, 2009.

8Although not framed in these exact terms the applicant is essentially asking that I reconsider my prior decision to dismiss the allegation that the return of the package by the respondents had no reasonable prospect of success.

9Rule 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. See for example Ontario Human Rights Commission v. Ontario Teachers' Federation, 1994 CanLII 10578 (ON CTGD), 19 O.R. (3d) 371.

10In 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.

11I have considered these cases and the entire context in which the issue arises including the allegation that the withholding of the document in question was deliberate, about which I will have more to day below. However 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 Application. Indeed little or nothing is added by the inclusion of this allegation. The question remains whether the respondents engaged in a reprisal isrrespective of this particular allegation. 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 49. For these reasons this aspect of the Request is dismissed.

12I would also observe that the notes in question do not establish anything that was not already known. Mr. Colak spoke with D.G. about these matters at some stage. What the document does not establish is the timing of this discussion.

Request to add D.G. as a respondent

13The applicant states that if the respondents are going to "throw D.G. under the bus" then she should be made a respondent to the proceeding and provided with a copy of the Application.

14The applicant did not deliver a copy of his Request to the proposed individual respondent and accordingly she has not had an opportunity to respond. On that basis the Request must be denied.

15I would also observe that it would be inappropriate to add a new party at this late stage of the proceeding. The hearing of this case is scheduled to take place on October 12, 2012. The addition of a new respondent would of necessity require the adjournment of the hearing. There are also no allegations made by the applicant that could support a finding of reprisal by the proposed respondent. Barring some compelling reason which is not disclosed in the applicant's submissions there is no good reason to add this individual at this stage.

Request to amend the Application

16The applicant also seeks to amend the Application by the addition of an allegation that section 9 of the Code has been violated. Section 9 provides as follows:

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

17The applicant articulated no particular reasons for the addition of section 9 and I fail to see what is gained by its addition. This Request is denied.

Statement of a case of contempt to the Divisional Court

18The applicant argues that the respondents have deliberately withheld documents and despite repeated requests by him and assurances provided by counsel for the respondents it is clear that the respondents did not make all reasonable efforts to produce all arguably relevant documents to the applicant.

19It is always somewhat surprising but also not the least bit unusual for documents to appear at the last moment. In this case the new material was discovered somewhat late in the day but was produced well prior to the hearing. The applicant is entitled to be somewhat frustrated with the late disclosure of documents which are obviously relevant to some of the issues in this case, but there is no basis to his contention that they were deliberately withheld by the respondents.

20Although it would have been preferable for the applicant to have had all of the extant documents prior to the summary hearing, as I have previously indicated the document of most significance to the applicant's concerns adds very little to what was already known, in particular whether or not Mr. Colak spoke to D.G. about these matters.

21The applicant claims prejudice but it is not clear what that would be given that he will have had the material in question for several months in advance of the hearing.

22I do not agree with the respondents that I have no jurisdiction to provide the relief sought by the applicant. Although he cited no authority for his request the parties are referred to section 14 of the Statutory Powers Procedure Act. R.S.O. 1990 c. S. 22.

23The applicant's Request that I state a case of contempt to the Divisional Court is dismissed.

24I am not seized.