HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mafario Amicucci
Applicant
-and-
York Police Services Board, Chris Parsons, Mario Gentili and Guy Guindon
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané Date: February 11, 2013 Citation: 2013 HRTO 242 Indexed as: Amicucci v. York Police Services Board
WRITTEN SUBMISSIONS
Mafario Amicucci, Applicant Self-represented
York Police Services Board, Chris Parsons, Mario Gentili, and Guy Guindon, Respondents Raj Anand, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services.
2This Interim Decision addresses the following issues:
a. The applicant’s Request for production; and
b. The respondent’s Request to adjourn of the hearing.
Production
3In an Interim Decision dated January 9, 2013, 2013 HRTO 34, the Tribunal directed the respondents to provide detailed submissions with respect to the applicant’s outstanding Request for production. The respondents’ submissions were received on February 5, 2013. On February 7, 2013, the Tribunal received the applicant’s submissions in response to the outstanding production issues.
4The applicant seeks the production of the following documents which is clarified in his February 7, 2013 submissions to the Tribunal:
a. All of the notes of PC Gentili;
b. The Notes of PC Parsons and PC Guindon;
c. All Professional Standards Investigations of the respondents, which includes any public complaints towards the officers. The applicant alleges that his counsels have been receiving strange telephone calls from some officers;
d. The psychiatric and psychological records of the personal respondents, because it is the applicant’s belief that they suffer from a pathological bias which is a form of mental illness. The applicant makes allegations that they are investigating “Zionist conspiracy” in the courts which then cause “delusions and corroded beliefs”;
e. All communications between the respondents, the applicant and “alleged witnesses”;
f. Copies of “statements, police interviews and interrogations” videos of the interviews conducted by the respondents with a number of individuals who appear to be members of his ex-spouse’s family. Though the interview tape involving his ex-spouse has limited sound, he believes that this was purposefully done by the respondents to erase inflammatory racist comments made by one of the officers. However, the applicant asserts that he can obtain the services of a professional to read lips. It is the applicant’s belief that these tapes would help establish collusion between the police and his former spouse’s family;
g. Forensic results of the letters sent to the applicant, his family and his solicitor which contain images of Nazi “death camps” which contain racist and anti-Semitic incidents. The applicant believes that these were in fact sent to him by one of the personal respondents.
5The applicant withdrew his request to have produced documents with respect to allegation of a conspiracy involving his wife’s family and the American authorities, including allegations of a DEA investigation.
6The respondents agree that the documents with respect to the January 26, 2010 arrest are relevant to the Application; however, they take the position that the remainder of the documents sought have no relevance to the material issues in the Application. They assert that anumber of the documents sought are overly broad and speculative.
Production Decision
7The Tribunal has the power to order a party to produce any document that is arguably relevant to the proceeding. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8. Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Lampi at para. 9.
8I have considered the applicant’s Request for production and I find that the applicant is attempting through this request to obtain documents which have no relevance to issues raised in the Application. The applicant’s Request for production is largely based on his belief that there is collusion between the respondents and his ex-spouse’s family. In effect, he is attempting through this process to gain access to documents that involve third party individuals who are not parties to this proceeding. Some of the allegations in his Request for production appear to have no foundation and are entirely speculative. This includes allegations of a “Zionist conspiracy” and issues raised with respect to the respondents’ mental health. In these circumstances it is not appropriate for the Tribunal to grant any of the documents referenced at paragraphs 4c to 4g.
9However, having reviewed the Application, I find that the following is relevant:
a. PC Parsons’ and PC Guindon’s notes dated January 26, 2010 (the respondents advise that this will be produced to the applicant);
b. Any notes that are relevant to the applicant’s arrest on June 9, 2011, including any notes that Detective Constable Ian McLellan may have made; and
c. Any notes and/or recordings that PC Gentili may have made about the applicant between March 16, 2011 and June 9, 2011.
10I also note that at paragraph 3 of the respondent’s February 5, 2013 submissions the respondents assert that none of the personal respondents were involved in the search of the applicant’s computer and that they were not aware of the existence of the Application until they received it from the Tribunal. It appears that documents confirming the chain of custody of the seized computer are arguably relevant, including the efforts and results of the Tech Data Recovery Unit. The respondents should immediately advise the applicant and the Tribunal if they object to producing these documents to the applicant.
11On February 11, 2013, the Tribunal received correspondence from the respondents in which they raise the issue that some of the documents sought by the applicant may be subject to Crown privilege. However, the respondents have failed to identify which documents may be subject to such privilege and in these circumstances the Tribunal will give the respondents directions.
Request for Adjournment
12The respondents request an adjournment of the April 11 and 12, 2013 hearing dates on the basis that they have retained new counsel who is not available for the scheduled hearing due to a previous commitment. The respondents proposed two sets of dates. The applicant has opposed the adjournment request of the basis that he has made arrangements to have witnesses attend the hearing and he is not available on the other dates proposed by the respondents.
13For the reasons that follow the adjournment request is denied.
14The Tribunal has made it clear on numerous occasions that adjournments, particularly at the last minute, are not automatically granted. In its Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments, it states that:
The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournment, even when all parties consent.
15In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:
The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five [now fourteen] days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five [now fourteen] days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.
16I find that the respondents have not provided an exceptional reason to justify adjourning the hearing at this late stage. This matter has been scheduled for hearing since September 13, 2012, and the respondents have been represented by counsel throughout. The respondents decided to retain the services of another lawyer; however, they should have ensured that he was available for the scheduled hearing. The Tribunal has denied requests to adjourn in similar circumstances. Elyas v. APlus Institute, 2010 HRTO 561. In these circumstances, I find that the respondents have not provided an exceptional reason to warrant the adjournment of the scheduled hearing and therefore their Request to adjourn is denied.
Order
17The Tribunal Orders as follows:
a. The respondents shall deliver to the applicant, if they have not already done so, the following documents within seven days of the date of this Interim Decision:
i. PC Parsons’ and PC Guindon’s notes dated January 26, 2010;
ii. Any notes that are relevant to the applicant’s arrest on June 9, 2011, including any notes that Detective Constable Ian McLellan may have made;
iii. Any notes and/or recordings that PC Gentili may have made about the applicant between March 16, 2011 and June 9, 2011; and
iv. Any documents and/or records with respect to the chain of custody of the seized computer, including the results of the Tech Data Recovery Unit. If the respondents object to producing these documents on the basis that they are not arguably relevant, they must deliver and file submissions on this issue, and the tribunal will give further directions to the applicant if necessary.
b. If the respondents object to producing any of the above-noted documents at paragraph 17 (a) on the basis of Crown Privilege, they must within seven days of the date of this Interim Decision deliver to the applicant and the Crown, and file with the Tribunal, submissions identifying which documents they object to producing and the basis for their objection. The respondents must also deliver to the Crown a copy of this Interim Decision and the Application, Response and Reply;
c. The Crown shall have ten days from the receipt of the documents at paragraph 17(b) to deliver to all the parties and file with the Tribunal submissions on this issue;
d. The applicant shall have five days from the receipt of the Crown’s submissions, or in the event that the Crown does not file submissions within 15 days of the date of the receipt of the respondent’s submissions, to deliver to the parties and file with the Tribunal submissions with respect to this issue.
Dated at Toronto, this 11th day of February, 2013.
“Signed by”
Geneviève Debané
Vice-chair