N.M. v. Toronto Police Services Board, 2012 HRTO 1824

Human Rights Tribunal of Ontario

B E T W E E N:

N.M. Applicant

-and-

Toronto Police Services Board and Chief of Police, Toronto Police Services Respondents

Decision

Adjudicator: Mark Hart Date: September 25, 2012 Citation: 2012 HRTO 1824 Indexed as: N.M. v. Toronto Police Services Board

1This is an Application dated January 31, 2011, 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 services because of race, colour and ancestry.

2The hearing in this matter is currently scheduled to proceed on October 3, 2012.

3On September 13, 2012, I issued a Case Assessment Direction (“CAD”) to address the parties’ failure to comply with their pre-hearing obligations under Rules 16 and 17.

4Pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure, each party is required to deliver to the other parties and file with the Tribunal the following material not less than 45 days prior to the first scheduled hearing day:

a. A list of all documents upon which the party intends to rely at the hearing;

b. A copy of each document contained on the list; and

c. A list of all witnesses the party intends to call at the hearing, including a brief statement summarizing each witness’ expected evidence.

5In the Notice of Confirmation of Hearing sent to the parties on March 27, 2012, the parties were reminded of these obligations and were to have delivered this material to the other parties and filed this material with the Tribunal by no later than August 20, 2012.

6As of the date of my CAD, no party to this proceeding had fully complied with these obligations.

7With regard to the applicant, her Application identified certain medical documents as being in her possession and relevant to the issues raised and the remedy claimed, including documents regarding a visit by the applicant and her son to the emergency department after an incident on October 7, 2010, a prescription from the applicant’s doctor regarding high blood pressure and a report from the applicant’s family doctor. At a minimum, I noted in the CAD that these documents needed to be disclosed to the respondents’ counsel, together with any other documents, notes, reports, pictures or anything else in the applicant’s possession relating to the incidents raised in the Application. In addition, if the applicant intended to rely upon any such documents or material for the hearing, these documents and materials also needed to be filed with the Tribunal, and the applicant was directed to do so within seven (7) calendar days of the date of the CAD, or by September 20, 2012.

8I also noted in the CAD that the applicant needed to identify the names of the witnesses she intended to call at the hearing, including herself and perhaps also her son, her husband, a neighbour who is stated to have come to the house on the night of the raid, and anyone else the applicant intended to call to give evidence. For each of these witnesses, I noted that the applicant needed to provide a statement of what relevant evidence each witness was expected to give at the hearing. In the CAD, I directed that this material also was to be served on respondents’ counsel and filed with the Tribunal within seven (7) calendar days of the date of the CAD, or by September 20, 2012.

9In the CAD, I stated that if the applicant failed to serve and file the required materials within the time period indicated, this Application may be dismissed as abandoned.

10With regard to the respondents, the provisions of the Youth Criminal Justice Act (“YCJA”) presented difficulties in permitting them to disclose records or information relating to the applicant’s son, who was a minor at the material time and whose involvement with the police in this matter was the central issue. This issue was raised by counsel for the respondents on April 7, 2011, upon receipt of the Application. In the Response dated April 26, 2011, the respondents indicated that they were unable to respond to the Application with particulars until after an Order had been obtained under the YCJA and the intention was stated to proceed with an application to obtain such Order.

11On April 16, 2012, after the Notice of Hearing in this matter was issued, counsel for the respondents wrote to this Tribunal to indicate that an application under the YCJA had been commenced and had been scheduled to be heard on April 30, 2012. On April 30, 2012, respondents’ counsel wrote again to the Tribunal to indicate that this application had been put over to May 28, 2012, as neither the applicant nor her son appeared in court on April 30, 2012.

12In the CAD, I directed the respondents to file any Order under the YCJA that had been made within seven (7) calendar days. On September 17, 2012, the respondents wrote to advise that an Order under the YCJA had been obtained on September 7, 2012. The delay in obtaining this order was explained in this correspondence, and was due to a variety of factors. Further, the Order required that the records at issue be vetted by the Crown Attorney’s office before they were disclosed, and some records might need to be redacted. This vetting process had not yet been completed by the time of the letter from respondents’ counsel. Accordingly, the respondents asked that the hearing scheduled for October 3, 2012, be adjourned to a later time.

13On September 17, 2012, the Tribunal sent a letter to the parties acknowledging receipt of the respondents’ request for an adjournment and requesting any submissions from the applicant regarding this request by September 20, 2012. In this letter, the applicant also was reminded once again that she needed to respond to the Tribunal’s CAD by no later than September 20, 2012, failing which her Application may be dismissed as abandoned.

14The CAD dated September 13, 2012 and the Tribunal’s letter dated September 17, 2012 were both mailed to the applicant at the address she had provided to the Tribunal. Neither document has been returned. On September 18, 2012, the Tribunal’s Case Processing Officer spoke with the applicant and mentioned to her that there was a deadline of September 20, 2012, for her to respond to the respondents’ adjournment request. The applicant requested a copy of the correspondence sent by the respondents as well as a copy of her file, and this material was left for her to pick up at the Tribunal’s offices. As of today’s date, this material remains unclaimed.

15This is a legal proceeding commenced by the applicant, and the applicant has the responsibility to remain actively involved in the process. In this instance, the applicant failed to comply with her pre-hearing obligations to file her documents and witness names and statements as required by the Rules and as set out in the Notice of Hearing sent to her a number of months ago. While the respondents also have not complied with their obligations, this was due to the legal impediment of the YCJA provisions and they have been taking active steps to obtain the required Court authorization to comply.

16When reminded of her pre-hearing obligations in the CAD dated September 13, 2012, the applicant still has not complied. Further, while this Tribunal made her aware of the September 20, 2012 deadline for her to comply and the potential consequence of having this Application deemed to be abandoned, the applicant still has not taken timely steps either to comply or to express interest in proceeding with this Application. While the applicant did speak to Tribunal staff to request certain materials, these materials have been left unclaimed notwithstanding that the applicant was aware of the September 20, 2012 deadline for her to respond.

17In consideration of all of these circumstances, it is my view that this Application should be deemed to have been abandoned. The Application accordingly is dismissed and the hearing scheduled for October 3, 2012, is hereby cancelled.