Randy King v. Toronto Public Library Board, 2012 HRTO 1763

Human Rights Tribunal of Ontario

B E T W E E N:

Randy King Applicant

-and-

Toronto Public Library Board Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: September 18, 2012 Citation: 2012 HRTO 1763 Indexed as: King v. Toronto Public Library Board

1This is an Application dated March 25, 2010 and filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of perceived disability.

2The hearing in this matter is scheduled to proceed on October 10 to 12, 2012. The purpose of this Interim Decision is to address the following Requests for Orders filed by the parties: (1) the Request for Order by the applicant dated March 17, 2011 seeking to amend his Application to allege reprisal and to add certain additional allegations; (2) the Request for Order by the applicant dated August 15, 2012 seeking production of certain documents and information and other relief; and (3) the Request for Order by the respondent dated August 23, 2012 seeking removal of certain allegations. I also will address a matter arising out of the pre-hearing materials filed by the applicant.

Request to add reprisal

3The applicant’s request seeks to add an allegation of reprisal in relation to two additional incidents, which occurred on February 25 and 26, 2011. The February 25, 2011 incident relates to a dispute over the use of a particular computer between the applicant and other library patrons and how this dispute was handled by library staff, including an alleged failure by library staff to address a female patron who is alleged to have called the applicant a “fucking asshole” and to have pointed her finger in his face and the alleged blaming of the applicant for the dispute and the characterization of his conduct as “harassment”. The incident on February 26, 2011 relates to the presence of a security guard at the library, which the applicant alleges is attributable to him having filed a human rights application against the respondent. The applicant’s allegations also relate to an alleged failure by the respondent to appropriately respond to or address these incidents.

4The respondent opposes this request, primarily on the basis that it is not in the proper form, in that the applicant did not file with his request a copy of an amended Application form setting out the allegations he wishes to add to his Application. I agree that this is typically the form in which a request for an amendment should be made. However, I also am cognizant that the applicant is not a lawyer and is a self-represented party and I do not believe it is appropriate to deny his request for amendment solely on the basis that it is not in the proper form.

5The respondent also takes the position that the request does not contain sufficient facts to support an allegation of reprisal. In my view, that is a matter to be determined at a hearing. The applicant has alleged that subsequent to the filing of his Application against the respondent, he was singled out and treated adversely by library staff which he alleges is attributable to the fact that he filed the Application. That in my view is sufficient in order to support the request for an amendment. Whether the applicant is able to prove these allegations at a hearing is a matter to be determined on the basis of the evidence.

6There is no indication in the material before me that the respondent would be prejudiced by the requested amendment. Attached to the applicant’s Request for Order are e-mails sent to Anne Bailey, who is the respondent’s Branch Libraries Director, dated February 25 and March 3, 2011 describing the incidents in question in detail. The applicant’s material also attaches a statement by another library patron which was submitted to the respondent’s “answerline” and was received on March 1, 2011. This statement is generally supportive of the applicant’s version of events. Finally, the applicant’s material includes a letter from Ms. Bailey dated March 11, 2011 copied to respondent counsel stating that the applicant’s allegations had been investigated and reviewed in detail. Further, the respondent has been on notice of the applicant’s request to amend his Application since mid-March 2011. In my view, this should provide a sufficient basis for the respondent to be able to respond to the applicant’s allegations and to allay any potential prejudice.

7Accordingly, I will accept the applicant’s attachment to his Request for Order dated March 17, 2011, including the attached documents, as an addendum to his Application setting out the additional allegations and alleging reprisal. The respondent shall have 14 calendar days to serve on the applicant and file with the Tribunal an addendum to its Response in order to respond to the allegations, together with all arguably relevant documents relating to these incidents and the respondent’s investigation and review and any additional or supplementary witness statements required for the hearing.

Applicant’s request for production and other relief

8In his Request for Order dated August 15, 2012, the applicant requests production from the respondent of the following materials:

a. Copies of all notes from the accusers in the alleged incidents described in Tab 23 of the respondent’s Arguably Relevant Documents, including dates, times, names of the accusers along with their signature on the appropriate letterhead and the particular employee involved in each alleged incident referring to the applicant’s alleged behaviour; and

b. The personnel records of all employees referenced on page 1 of the aforementioned document.

9The document at issue is minutes of a meeting involving library staff and an Employee Assistance Provider (EAP) counsellor on February 5, 2009 following an incident that occurred at the library involving the applicant on January 10, 2009, which is one of the incidents raised in the Application. In the course of this meeting, various library staff members shared their individual perceptions of the applicant and the issues that they confront when dealing with him. The comments made by staff largely relate to their general perception of the applicant, as opposed to specific incidents. Only three specific incidents are raised in these minutes, one of which relates to an alleged incident at another library branch and another of which relates to an alleged incident on a TTC bus. The third specific incident relates to an occasion when the applicant is alleged to have shouted at some teenagers who were making noise and a library staff member moved the teenagers to another area. This is not an incident which forms the basis of any allegation in the Application. The individual who raised this incident at the February 5, 2009 meeting (Jackie Howard) is not an individual against whom the applicant has raised any specific allegation. While this individual has been identified by the respondent as a proposed witness, she is intended to speak to an incident on August 17, 2010 with which she was not directly involved and where she actually sided with the applicant.

10In this proceeding, I need to consider and address the specific incidents raised by the applicant and determine whether a perceived disability was a factor in the conduct of respondent staff in relation to any of them and whether these incidents have created a poisoned environment for the applicant. To some extent, the general impressions of the applicant held by the various staff members involved and their prior interactions with the applicant, if any, will be relevant to this inquiry. But that does not extend to a detailed probing of specific incidents involving the applicant which have not been raised by him as part of his allegations or which have not been raised by the respondent as a reason for the conduct of its various staff members in response to the specific incidents raised.

11Accordingly, in my view, the applicant’s request for specific details of alleged incidents involving him as raised at the February 5, 2009 meeting is not arguably relevant to the matters at issue in this proceeding, first because the statements made by various staff members at the meeting speak to general impressions as opposed to specific incidents and second because the only specific incidents raised either relate to contexts other than the specific library branch at issue or involve individuals against whom no specific allegation is raised in this proceeding. As a result, the applicant’s request for production of this material and information is denied.

12With regard to the applicant’s request for the personnel files of all staff members involved in the February 5, 2009 meeting, this Tribunal previously has held that entire personnel files are not arguably relevant to the issues raised in a human rights proceeding, although specific documents within a personnel file may be arguably relevant: see Berisa v. Toronto (City), 2008 HRTO 246 at paras. 48 to 49. The respondent already has indicated that there are no specific arguably relevant documents relating to the events at issue in the personnel file of Neil Marlow. The only other person on the list of attendees at this meeting who is alleged to have been directly involved in the incidents at issue in this proceeding is Gleb Sitnikov. Within 14 calendar days of the date of this Interim Decision, the respondent shall advise the Tribunal and the applicant whether or not there are any specific arguably relevant documents relating to the events at issue in Mr. Sitnikov’s personnel file, and if so, shall disclose these documents to the applicant. Other than to this limited extent, the applicant’s request for production of these personnel files is overbroad and is therefore denied.

13I am well aware of this Tribunal’s decision in another case involving the applicant, namely King v. Toronto Police Services Board, 2008 HRTO 33, in which production was ordered in relation to prior complaints made against a police officer who was directly involved in the alleged conduct at issue and which related to the ground of discrimination alleged. The only persons on the list of attendees at this meeting who are alleged to have been directly involved in the incidents at issue in this proceeding are Neil Marlow and Gleb Sitnikov. The respondent shall ascertain whether it has any records relating to complaints of discrimination because of perceived or actual mental disability against either of these two individuals within the last 5 years, and shall so inform the Tribunal and the applicant within 14 calendar days of the date of this Interim Decision. If there are any such complaints, the respondent shall briefly advise as to the circumstances and what if any records exist, and I will then make any appropriate order regarding disclosure of any underlying records.

14Finally, the applicant has asked that I exclude the arguably relevant documents disclosed by the respondent, on the basis that they were disclosed over one month late. While there is no question that this material should have been disclosed at an earlier time, it appears that the short delay in disclosure was done through inadvertence. The applicant also has not asserted any specific prejudice arising out of the late disclosure. As a result, I see no reason to make any order in this regard.

Respondent’s request to exclude allegations

15The respondent filed a Request for Order dated August 23, 2012, seeking to exclude from the hearing the following incidents:

a. An alleged interaction on February 5, 2010 between the applicant and a library page named Gleb Sitnikova; and

b. An alleged interaction on August 17, 2010 wherein the applicant was asked by a library staff member named Lidia Dabrowska to turn off a Lady Gaga video he was watching on a library computer.

16This request is made on the basis that neither of these alleged incidents gives rise to a prima facie case of discrimination.

17With regard to the February 5, 2010 incident, this allegation is raised in the context of the applicant’s allegation of a poisoned environment. The applicant alleges that the page “deliberately walked away” from the circulation desk when he saw the applicant approaching and refused to serve him. I appreciate that the duties of a library page may not generally include responding to inquiries from library patrons at the circulation desk and that there may have been other reasons why the page walked away from the desk as the applicant was approaching. But this is a matter that would need to be addressed on the basis of evidence at the hearing, in relation to the applicant’s allegation that he was treated differentially than other patrons and denied service.

18I understand that Mr. Sitnikova now resides in Saskatchewan. If the respondent wishes to call Mr. Sitnikova to give evidence in response to this allegation, I would be prepared to receive such evidence by telephone at the hearing in the circumstances.

19With regard to the August 27, 2010 incident, once again there may be valid, non-discriminatory reasons for Ms. Dabrowksa to have made the request that she did. Once again, this will need to be the subject of evidence at the hearing. The respondent has filed witness statements for Ms. Dabrowska and Ms. Howard which respond to this incident. I will need to assess their evidence at the hearing, and determine whether there is sufficient evidence to establish that the applicant was treated differentially and/or experienced discrimination in relation to this incident.

20Finally, I appreciate that this incident was not raised in the Application and was only raised in the applicant’s Reply. Once again, however, I am aware that the applicant is not legal counsel and is self-represented and may not appreciate that this is insufficient to raise an additional allegation as part of his Application. Nonetheless, it appears from the material filed with the Tribunal that the respondent is able to respond to this allegation and no specific prejudice has been raised. Accordingly, I will regard the August 27, 2010 incident as forming part of the allegations raised in this proceeding and will hear the respondent’s evidence in response. If the respondent wishes to formally respond to this allegation, it can do so as part of the addendum to its Response to be filed as set out above.

21For these reasons, the respondent’s Request is denied.

Applicant’s pre-hearing material

22On June 21, 2012, the applicant sent a letter to the Tribunal attaching a list of the material that he intends to rely upon, which references the Application, Response and Reply, his Request for Order to amend his Application and the respondent’s Response, and the Tribunal’s Interim Decision dated December 5, 2010. I am aware that the Application, Reply and the Request for Order attach certain documents filed by the applicant, and I understand that the applicant intends to rely upon the documents he submitted with these materials as part of his case.

23The applicant has not filed any willsay statements on the basis that he “will not be relying upon any of [his] own witnesses but will rely upon those of the respondent”. It is not clear to me whether this is intended as a statement that the applicant himself does not intend to testify on his own behalf at the hearing. In order for the applicant to have any prospect of success with his Application, he will need to testify as a witness in order to provide his evidence regarding the allegations at issue. As credibility will be a significant issue in this proceeding, the respondent also will need to have an opportunity to cross-examine the applicant. It is not the responsibility of a respondent to respond to allegations raised by the applicant in the absence of any evidence provided to support them.

24Accordingly, within 14 calendar days of the date of this Interim Decision, the applicant is to confirm to the Tribunal and respondent’s counsel whether he intends to testify on his own behalf at the hearing. If the applicant does intend to testify and is relying upon the materials appended to his Application, Reply and Request for Order dated March 17, 2011 as setting out his expected evidence, then the applicant can simply confirm this. If there is any other relevant evidence which the applicant intends to give, then he needs to provide a statement setting out any such other relevant evidence.

25I also am aware that, with the applicant’s Request for Order, he included a document authored by a person named Jose Santos. Generally speaking, this Tribunal will not rely upon a written statement of a person’s evidence where such evidence is material to a significant issue in the proceeding. Accordingly, the applicant should not assume that this Tribunal will rely upon the written statement provided by Mr. Santos in the absence of Mr. Santos being called as a witness and testifying before this Tribunal at the hearing. Accordingly, within 14 calendar days of the date of this Interim Decision, the applicant shall advise the Tribunal and the respondent whether he intends to call Mr. Santos as a witness at the hearing.

ORDER

26For the foregoing reasons, I hereby make the following order:

a. The applicant’s attachment to his Request for Order dated March 17, 2011, including the attached documents, shall be treated as an addendum to his Application setting out additional allegations and alleging reprisal. The respondent shall have 14 calendar days from the date of this Interim Decision to serve on the applicant and file with the Tribunal an addendum to its Response in order to respond to the additional allegations, together with all arguably relevant documents relating to these allegations and the respondent’s investigation and review and any additional or supplementary witness statements required for the hearing;

b. Within 14 calendar days of the date of this Interim Decision, the respondent shall advise the Tribunal and the applicant whether or not there are any specific arguably relevant documents relating to the events at issue in Mr. Sitnikov’s personnel file, and if so, shall disclose these documents to the applicant;

c. The respondent shall ascertain whether it has any records relating to complaints of discrimination because of perceived or actual mental disability against either Neil Marlow or Gleb Sitnikov within the last 5 years, and shall so inform the Tribunal and the applicant within 14 calendar days of the date of this Interim Decision. If there are any such complaints, the respondent shall briefly advise as to the circumstances and what if any records exist;

d. The remaining orders sought in the applicant’s Request for Order dated August 15, 2012 and in the respondent’s Request for Order dated August 23, 2012 are denied;

e. Within 14 calendar days of the date of this Interim Decision, the applicant shall confirm to the Tribunal and respondent’s counsel whether he intends to testify on his own behalf at the hearing. If the applicant does intend to testify and is relying upon the materials appended to his Application, Reply and Request for Order dated March 17, 2011 as setting out his expected evidence, then the applicant shall simply confirm this. If there is any other relevant evidence which the applicant intends to give, then he shall provide a statement setting out any such other relevant evidence; and

f. Within 14 calendar days of the date of this Interim Decision, the applicant shall advise the Tribunal and the respondent whether he intends to call Mr. Santos as a witness at the hearing.