HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Trevor Malcolm
Applicant
-and-
Ministry of Community Safety and Correctional Service
Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Malcolm v. Ontario (Community Safety and Correctional Services)
APPEARANCES
Trevor Malcolm, Applicant
Jagruti Patel, Representative
Ministry of Community Safety and Correctional Services, Respondent
Norman Feaver, Counsel
1This Interim Decision is further to earlier Case Assessment Directions and to a telephone case management conference held on September 4, 2012.
2The Application alleges discrimination by the respondent in respect of various alleged incidents in the period 2007 to 2010 “and ongoing”.
3The respondent submits that incidents other than those alleged in the Application are also relevant. The respondent also submits that an incident that occurred in May 2012, after the Application was filed, is also relevant.
4The first Case Assessment Direction, dated June 13, 2012, was in respect of a hearing scheduled for June 22, 2012. The parties had not filed hearing documents and witness will say statements because they had been involved in settlement discussions. The Case Assessment Direction directed that the June 22, 2012 hearing would proceed as a case management meeting to allow the parties and the Tribunal to resolve issues that need to be addressed before the Application is heard.
5At the hearing, the applicant did not appear because he had car problems. His then representative did appear. The respondent was represented by Mr. Feaver. A timetable was established for production of documents and for submissions on the relevance of the prior and subsequent incidents.
6The respondent submitted documents as directed. The applicant changed representatives and did not submit anything. A second Case Assessment Direction directed the September 4, 2012 telephone case management conference to hear submissions about the prior and subsequent events and to establish a timetable for processing the Application. The applicant did not participate but his representative, Jagruti Patel did participate. The respondent was represented by Norm Feaver.
7In respect of the prior incidents, Mr. Feaver confirmed that the respondent believes that all prior incidents involving the respondent and the applicant are relevant. Ms. Patel indicated that the prior incidents could be relevant.
8I find that the prior incidents are relevant. There is no suggestion that the prior incidents are sufficiently prejudicial that any prejudice to the applicant would outweigh their relevance.
9In respect of the May 2012 incident, Ms. Patel advised that the applicant has retained counsel regarding that incident. She indicated that the applicant has not discussed many details with her about the incident. She was not clear as to what legal action, if any, was contemplated in respect of it. She suggested that it was not directly relevant to the earlier incidents or to the Application because it occurred after the Application was filed and the applicant has not sought to amend the Application to include it. She did not suggest that any prejudice to the applicant would result if the respondent was permitted to provide information about the May 2012 incident. The respondent submits that the May 2012 incident is relevant to the Application because it shows a pattern of behaviour by the applicant which is consistent with the behaviour that the respondent claims occurred in respect of the earlier incidents.
10I find that the May 2012 incident is relevant to the Application.
11Even if it were not relevant, the May 2012 incident appears to be related to the allegations raised in the Application. If there is a proceeding before the courts that is related to an Application, the Tribunal will usually defer consideration of the Application until the proceeding before the courts is concluded.
12As agreed during the conference call, by September 17, 2012, the applicant will state in writing the status of any legal proceeding in respect of the May 2012 incident. Specifically, the applicant will clarify if a legal proceeding has been started or if a legal proceeding is contemplated. The applicant will also state in writing whether the applicant wishes to amend the Application to include any allegations in respect of the May 2012 incident.
13If the applicant does not wish to amend the Application and if there is a legal proceeding that has started in court or that is contemplated, the applicant will also make submissions as to whether the Tribunal should defer further consideration of the Application until any proceeding before the court is concluded.
14The respondent may respond by September 24, 2012.
15The Tribunal will issue further directions after these submissions are received.
Dated at Toronto, this 6th day of September, 2012.
“Signed by”
Brian Cook
Vice-chair