Bruce v. Greater Essex County District School Board, 2012 HRTO 847

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: April 25, 2012 Citation: 2012 HRTO 847 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 February 2009 which were related to Applications he previously filed in 2008 (the "2008 Applications"), alleging discrimination in employment. In 2012 HRTO 66 several of the allegations in the Application were dismissed as having no reasonable prospect of success.

2This interim decision deals with a Request for Order during Proceedings filed by the applicant seeking the production of documents amongst other things. The respondent opposes the Request.

3The applicant seeks the following:

a. Documents related to the circumstance to the issuance of Trespass letters by Western School in the 5 year period immediately prior to the Trespass letter issued in this case.

b. Written statements of K.G and and V.G. related to the events giving rise to this Application;

c. A notarized declaration of respondents' counsel that she has made all reasonable inquiries of the respondents and that no written accounts, reports, faxes, e-mails or letters of any form are in the possession of the respondents that have not been disclosed to the applicant.

4The applicant's requests are rejected. The first two requests are in relation to documents that are not arguably relevant to any issue in dispute in this Application. The final request is entirely inappropriate and is not justified in the circumstances.

5The applicant has been in an ongoing dispute with this corporate respondent since 2003. The applicant filed an application pursuant to section 53(3) the of the Code in 2008 (the 2008 Application) alleging discrimination in employment on the basis of sex by this respondent as well as one individual who plays a small part in this proceeding. During the course of the 2008 Application it became necessary for the applicant to deliver the 2008 Application to the individual respondent in that case. The respondent Board pursuant to a direction from the Tribunal advised that the individual respondent in the 2008 Application could be found at one of its schools – Western Secondary School.

6This Application as originally filed alleged that when the applicant and his representative attended at Western Secondary School to deliver the 2008 Application to the individual respondent, the envelope containing the material was not accepted by school staff who said that the individual to whom it was addressed was not there. The applicant also alleged that subsequently Mr. Colak, the principal of Western Secondary School executed a "trespass letter" and "had delivered, by Sgt. Paul Smith of the Amherstburg Police Service, a letter dated February 2, 2009." The applicant alleged that this trespass letter was a reprisal under the Code - for his having started or taken part in a human rights proceeding - the 2008 Application. The applicant further alleged that Sergeant Smith, while at the applicant's home, called the applicant at work to warn him not to return to the school, and not to contact the school or the teacher who was the personal respondent in the 2008 Applications.

7In 2012 HRTO 66 I found that there were four broad allegations made in the Application 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

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

8I determined that the allegations of reprisal in paragraph a, c and d had no reasonable prospect of success and were dismissed leaving the allegation in paragraph b to proceed to a hearing.

9Section 8 of the Code provides as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

10In order to succeed in a claim of reprisal under the Code, the applicant must establish that the respondents issued the reprisal letter with the intention of retaliating against him for claiming or enforcing his rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person's rights under the Code: Noble v. York University, 2010 HRTO 878. The decision to do so was made apparently by Mr. Colak after speaking with the individual respondent in the prior proceeding sometime after the applicant attempted to deliver the materials to her at the school.

11In support of the first request the applicant states that because the respondent has no policy or procedural guidelines makes the issuance of trespass letters "completely arbitrary and subjective to the person making the decision" based on the particular circumstances of the case. This all makes the circumstances surrounding the issuance of prior trespass letters directly relevant to the issue in question.

12I do not agree. Contrary to the applicant's submission the lack of policy or procedural guidelines does not indicate that the decision of a school principal to issue a trespass notice is entirely arbitrary, rather it suggests that the decision is highly discretionary and dependent on the particular circumstances. Given that, it seems to me that the circumstances surrounding any prior trespass notice that may have been issued is entirely collateral to the issue here and will greatly lengthen the hearing for no real purpose. The key issue for determination will be the reasons for the individual respondent's exercise of the discretion granted to him in these circumstances and whether the issuing of the trespass letter was intended as a reprisal for the applicant's commencing of a prior Code proceeding.

13As regards the second request I am not satisfied that the statement of these two witnesses are relevant to any issue in these proceedings. The two individuals were the staff persons present at the time the applicant sought to deliver the materials to the individual respondent in the prior proceeding. The allegation related to that interaction was dismissed. It is not clear how the evidence of these two individuals will be relevant to the issues in dispute the decision to issue the trespass letter being made apparently at another time and after Mr. Colak had spoken with the individual respondent in the prior proceeding. Should the respondent identify either of these two individuals as witnesses it intends to rely upon, the applicant may revisit this request.

14As regards the final request, counsel for the respondent notes that it is improper. I agree and would add that the suggestion inherent in it is offensive. It is improper to suggest, without any basis at all, that a party (or their representative) is withholding materials or otherwise acting improperly. The request is gratuitously offensive and should be dismissed.

15I am not seized.