Samuel Alexander v. Toronto District School Board, 2012 HRTO 1686

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuel Alexander Applicant

-and-

Toronto District School Board, Tania Bloomfield, Jonathan Cohen, Davina Blenman, Zoraida Van Ael, Nina Sengupta, Christina MacDonell and Sarah Hicks Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Decision Date: September 6, 2012 Citation: 2012 HRTO 1686 Indexed as: Alexander v. Toronto District School Board

WRITTEN SUBMISSIONS

Samuel Alexander, Applicant Self-represented

Toronto District School Board, Respondent Grant Bowers, Counsel

Tania Bloomfield, Jonathan Cohen, Davina Blenman, Zoraida Van Ael, Nina Sengupta, Christina MacDonell and Sarah Hicks, Respondents Maurice Green, Counsel

Introduction

1This Application was filed on November 18, 2009, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), and alleges discrimination in employment on the basis of race, colour, ancestry, place of origin and ethnic origin, and reprisal. This matter is scheduled to be heard on January 21, 22 and 23, 2013.

2In a Case Assessment Direction ("CAD") dated May 11, 2011, the Tribunal granted a Request for Summary Hearing. The Tribunal also noted in the CAD that the applicant had made a number of Requests for Orders During Proceedings ("Requests"). The Tribunal indicated that the Requests would be considered, if necessary, following the summary hearing.

3Following the summary hearing, the Tribunal issued an Interim Decision, 2012 HRTO 1105, dismissing the applicant's allegations that he was subjected to reprisal, with respect to the time period prior to April 16, 2009, as having no reasonable prospect of success. The remaining allegations in the Application were not dismissed.

4The purpose of this Interim Decision is to address the applicant's Requests, and a Request filed by the individual respondents at the same time they filed their Response to the Application.

THE REQUESTS

5On March 26, 2010, the individual respondents filed a Response to the Application along with a Request for particulars and production, and to dismiss the Application on the basis that no prima face case had been pled. The applicant filed a Response to this Request dated April 9, 2012, including lengthy submissions and attached documents. The respondents' request that the Application be dismissed on the basis that it does not establish a prima facie case was addressed at the summary hearing and in the Tribunal's Interim Decision dated June 5, 2012.

6On July 12, 2010, the applicant filed a Request for particulars. On July 21, 2010, the respondent, Toronto District School Board ("TDSB"), and the individual respondents filed Responses to the Request, submitting, among other things, that the Request was premature.

7On July 30, 2010, the applicant filed a Request for production of documents. On August 13, 2010, the TDSB and the individual respondents filed Responses to the Request, submitting that the Request was premature.

8On August 29, 2010, the applicant filed an extensive Request, dated August 28, 2010, for particulars and production of documents. The TDSB and the individual respondents filed Responses to the Request, on September 8 and 10, 2012, respectively, submitting that the Request was premature.

9On September 10, 2010, the Tribunal advised the parties that, as they had agreed to mediation, the applicant's Requests would be dealt with by the Tribunal if the Application was not resolved at mediation and proceeded to a hearing. It appears that the matter proceeded to mediation on March 25, 2011, but was not resolved. On April 8, 2011, the individual respondents filed, jointly, with the consent and support of the TDSB, a Request for Summary Hearing, which the Tribunal granted by CAD dated May 11, 2011.

10On May 2, 2011, the applicant filed a Request for particulars and production of documents. On May 11, 2011, the individual respondents filed a Response to this Request, submitting that the Request is imprecise and addresses matters outside of the Tribunal's jurisdiction. On May 16, 2011, the TDSB filed a Response to the Request, submitting that it was premature, that the particulars and documents requested are not arguably relevant to the Application and that, in any event, the requested information had been provided to the applicant by the TDSB.

11On May 9, 2012, the applicant filed a Request to add a party. In particular, the applicant seeks to add the "School Council of West Hill Collegiate Institute" as an affected party. On May 23, 2011, the TDSB filed a Response to this Request, submitting that the proposed affected party is not a legal entity and is not an appropriate party to the proceeding.

DECISION

The Parties' Requests for Particulars and Production

12Requests for production are normally not addressed until a matter has been scheduled for a hearing on the merits and the parties have complied with their disclosure obligations under the Tribunal's Rules of Procedure. See Polihronakos v. Mississauga (City), 2010 HRTO 1112, at para. 4. In the present case, the parties have exchanged considerable information since the Requests were made. In addition, they have been directed to comply with their disclosure obligations under Rule 16.1 of the Tribunal's Rules by September 10, 2012.

13With respect to the applicant's July 12, 2010 Request for particulars, it appears that the applicant is seeking particulars regarding an alleged statement by the individual respondents that there were "reasons" why they found an October 15, 2008 memo written by the applicant to be incoherent. Whether or not this is an appropriate request for particulars, I agree with the respondents' submissions that this Request is premature. I note, however, that the individual respondents have since provided the applicant with an expert report concerning the "quality of writing" in his October 15, 2008 memo. As such, it appears that this Request may have been answered. In any event, this Request is dismissed as premature at this stage of the proceeding.

14In his May 2, 2011 Request for particulars and production of documents, it appears that the applicant is seeking information as to why he was placed on "home assignment" on or about April 29, 2011. Again, whether or not this is an appropriate request for particulars and production, I agree with the submissions of the TDSB that this Request is premature. I also note, however, that the TDSB has submitted that it provided this information to the applicant in a letter dated May 11, 2011. As such, while this Request is premature at this stage of the proceeding, and is dismissed on that basis, it also appears that this Request may have been answered by the TDSB.

15In my view, the parties' remaining Requests for particulars and production of documents are also premature at this stage of the proceeding. The Tribunal will only require parties to engage in early production in exceptional circumstances, and the parties do not appear to have identified any such circumstances in this case.

16The Requests for particulars and production are denied at this stage of the proceeding as premature.

Request to Add an Affected Party

17It appears from the applicant's Request and other materials filed with the Tribunal that he is seeking to add the School Council of West Hill Collegiate Institute (the "School Council") as an affected party, as opposed to a respondent party. With respect to the participation of affected persons or organizations, Rule 3.14 of the Tribunal's Rules states as follows:

Where a person or organization is identified in an Application or in a Response as an affected person as defined in these Rules, that person or organization may file a Request to Intervene under Rule 11 within 35 days of the delivery of the Application or the Response, failing which the Tribunal may proceed without further notice to the person or organization.

18Neither the applicant nor the respondents identified the School Council as an affected party in their Application or Responses. Although it is not entirely clear if the applicant delivered a copy of this Request to the School Council, it appears he advised a member of the School Council that he was seeking to have the School Council added as an affected party, and he also previously invited the School Council to intervene in this Application. In any event, it is not clear from the applicant's materials as to how the School Council may be affected by this proceeding, and the Tribunal has not received a Request to Intervene from the School Council, although it appears the School Council may be aware of the Application. In my view, based on the materials before me, there is no basis to add the School Council as an affected party.

19The Request to add the School Council as an affected party is dismissed. Should the School Council wish to file a Request to Intervene, it may do so within 30 days of the date of this Interim Decision. The respondent, TDSB, is directed to provide the Tribunal with an address for service for the School Council, within ten days of the date of this Interim Decision, and the Tribunal will deliver a copy of this Interim Decision to the School Council.

20I am not seized.