HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Allen Rosario
Applicant
-and-
Thunder Bay Police Services Board
Respondent
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Rosario v. Thunder Bay Police Services Board
WRITTEN SUBMISSIONS
Allen Christopher Rosario, Applicant
Self-represented
Thunder Bay Police Services Board, Respondent
Robert Edwards, Counsel
Introduction
1This Interim Decision addresses the Requests for Orders During Proceedings (“Requests”) filed in this matter. It also seeks the parties’ submissions on whether the Tribunal should defer consideration of this Application pending the conclusion of the applicant’s criminal trial due to what appears to be an overlap in facts and issues between these two proceedings.
Requests for Orders During Proceedings
2The applicant filed an Application on August 16, 2012, alleging discrimination with respect to the provision of police services on the basis of disability and creed. He also alleged that the respondent reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
3The following Requests have been filed with the Tribunal:
a. On December 3, 2012, the applicant filed a Request to add a document to the list of important documents in his possession contained in his Application;
b. On December 12, 2012, the respondent requested that the applicant be restrained from various listed forms of conduct;
c. On January 7, 2013, the respondent requested that the applicant’s Response to its previous Request be struck due to the use of uncivil language and personal insults;
d. On January 13, 2013, the applicant requested that the Tribunal restrain the respondent from intimidating him and conduct an investigation into alleged conduct by certain police officers; and
e. On January 17, 2013, the applicant requested that certain information regarding an alleged incident that day in traffic court be added to his Application.
4Before I address each of these Requests, I wish to review the Tribunal’s powers to control the abuse of its process.
Scope of the Tribunal’s Power to Prevent Abuse of its Process
5The Tribunal’s power to control its process arises from the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”) as well as the Tribunal’s Rules of Procedure (“Rules”). The following provisions are relevant to the Requests filed by the parties.
6Section 23(1) of the SPPA provides:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
7The following provisions of the Tribunal Rules are also relevant:
1.7 In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:
(v.1) make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants.
1.12 All written communications with the Tribunal, including e-mail correspondence, must be addressed to the Registrar, with a copy delivered to all other parties.
1.12.1 All materials filed with the Tribunal must be courteous and respectful of the Tribunal and other participants.
1.21.1 When a party has a representative, documents must be delivered to the representative.
8The Tribunal has commented on the responsibilities of parties appearing before it in several decisions. See, for example, Felix v. Shoppers Drug Mart, 2010 HRTO 2179 (“Felix”); Ouwroulis v. New Locomotion, 2009 HRTO 335 at paras. 4-7; and Cochrane v. Workplace Safety and Insurance Board (“Cochrane”), 2010 HRTO 913 at paras. 8-9.
9In Cochrane, above, at paras. 8-9, the Tribunal stated as follows:
Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal’s process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.
It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.
10The making of insulting, abusive or discriminatory comments has been found to constitute an abuse of the Tribunal’s process, resulting in dismissal of an application or request for reconsideration. See, for example, Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667; Vizcaya v. University of Toronto, 2010 HRTO 916; Nouraghighi v. Toronto Catholic District School Board, 2009 HRTO 2085.
11As the provisions and decisions noted above make clear, the Tribunal has the power to make orders controlling the abuse of its process and ensuring that the Tribunal process is free from abusive comments by any participant. However, the Tribunal does not have general injunctive powers to restrain the conduct of parties in their general interactions with one another. See, for example, Felix, above, at para. 14.
Applicant’s December 3, 2012 Request
12In his December 3, 2012 Request the applicant seeks to add a copy of an online news article to the list of important documents in his Application. The article reports on an application brought by the applicant alleging that the respondent’s conduct in arresting, charging, detaining him violated his rights to life and liberty as well as his equality rights under the Canadian Charter of Rights and Freedoms (“Charter”).
13It is not necessary for the applicant to file a Request to add documents to the list of important documents in his Application. The proper procedure for providing notice of documents that a party intends to rely upon that are not listed in the Application or Response is for the party to disclose the documents to the other party as part of their disclosure obligations under Rule 16 of the Tribunal’s Rules.
14Having reviewed the article submitted by the applicant, it appears that there may be a significant overlap in the facts and issues raised in his Application and in the parallel criminal trial in which he plans to raise his Charter claims. I address this issue in more detail at the end of this Interim Decision.
Respondent’s December 12, 2012 Request
15In its December 12, 2012 Request, the respondent seeks the following orders to restrain the applicant from:
a. attending at the premises of the law firm representing the respondent;
b. serving documents or filings on the respondent or its counsel by “in person” service. The respondent also seeks an order that the applicant serve all documents on the respondent by means other than personal service;
c. placing any material relating to the case or the facts underlying it on any personal vehicle; and
d. communicating with known family members of the police officers he has accused of discriminating against him.
16As already discussed, the Tribunal has the power to make orders to control the abuse of its process and to ensure that participants refrain from making abusive comments during Tribunal proceedings. However, the broad orders requested by the respondent in paragraphs a, c, and d above extend beyond the Tribunal’s role in controlling its own process and relate to the general interaction between the parties. As noted above, the Tribunal does not have general injunctive powers to restrain the conduct of parties in their general interactions with one another. Therefore these requests by the respondent are denied.
17As noted in subparagraph 15(b) above, the respondent also requests that the applicant be restrained from delivering documents by “in person service” due to threatening comments he allegedly made against the respondent and its officers in written flyers placed on the vehicles of certain police officers. In his Response, the applicant states that he has never hand delivered documents to the office of the respondent’s counsel, but instead has delivered his materials by e-mail. Upon reviewing the applicant’s Statements of Delivery (Form 23) filed with the Tribunal, it appears that the applicant has most often delivered materials by e-mail. However, according to the Statements of Delivery, there appears to be at least one occasion on which the applicant delivered materials by hand to the office of the respondent’s counsel.
18In the circumstances, I am prepared to grant the respondent’s request that the applicant be directed to deliver materials to the respondent’s counsel by means other than in person service. In my view, this request falls within the Tribunal’s powers to control its proceedings since the service of documents is closely connected to the Tribunal’s proceedings. Without making any findings about the materials submitted in support of the respondent’s request, these materials do provide support for the respondent’s concern about the safety of the employees of the law firm representing it. The applicant is directed to deliver materials to the respondent’s counsel by any of the means listed in Rule 1.21 of the Tribunal’s Rules other than hand delivery.
Respondent’s January 7, 2013 Request
19In its January 7, 2013 Request, the respondent sought to have the applicant’s Response to its previous Request struck in its entirety due to his use of uncivil language and personal insults. In his Response to the respondent’s previous request, the applicant claimed that members of the Thunder Bay Police had threatened him and were “out to kill [him]”. He claimed that a lawyer for the respondent is acting “very stupid and foolish (sic)” by posting the applicant’s photograph in the law firm’s offices. The applicant also claims that this lawyer who swore an affidavit in support of the respondent’s previous request “fails to realize the spiritual consequences of her acts”, “has brought a curse to her bread and water”, “should be made criminally responsible for her treacherous act” and “should be imprisoned”.
20The respondent claims that the applicant’s language and conduct shows a lack of respect for the Tribunal’s process and leads to an inference that the Application has been brought for the purpose of harassing the respondent rather than advancing a human rights claim.
21The Tribunal ruled on the respondent’s December 12, 2012 Request without having to take into account the applicant’s Response. Therefore, it is not necessary to strike the applicant’s Response.
22However, I do find that the language used, and accusations made, by the applicant in his Response are inappropriate and arguably cross the line into the kind of disrespectful language that the Tribunal has denounced in other cases. This Interim Decision will serve as a warning to the applicant that all communications regarding this Application must be courteous and respectful of other participants and the Tribunal. It is appropriate for the applicant to voice his disagreement, even his strong disagreement, with the positions taken by the respondent. However, any personal insults against the respondent’s counsel and/or inflammatory language can only detract from his submissions rather than assist them in any way. Such inflammatory language not only shows a lack of respect for the respondent but also shows a lack of respect for the Tribunal’s process.
23The applicant is cautioned that there may be serious consequences if he persists in the use of personal insults and inflammatory or abusive language. As noted above, in a number of cases, the Tribunal has held that the use of insulting or abusive language constitutes an abuse of the Tribunal’s process that may result in the dismissal of an application. See, for example, Drenic v. Governing Council of the Salvation Army, above; Vizcaya v. University of Toronto, above; Nouraghighi v. Toronto Catholic District School Board, above.
Applicant’s January 13, 2013 Request
24In his January 13, 2013 Request, the applicant appears to ask the Tribunal to order the Thunder Bay Police to refrain from intimidating him. He also asks that the Tribunal order the respondent to investigate plain clothes officers who are allegedly threatening him and informing drug gangsters that he is a “rat”.
25The Tribunal denies this Request for the same reason it denied parts of the respondent’s December 12, 2012 Request. As already noted, the Tribunal does not have general injunctive powers to restrain the conduct of parties in their general interactions with one another. It also does not have the power to order the respondent to conduct the investigation requested by the applicant.
26The parties are advised that the Tribunal will not entertain any other Requests that seek to restrain either party, whether it is the applicant or the respondent, from any conduct in their general dealings with one another outside the Tribunal’s proceedings.
Applicant’s January 17, 2013 Request
27In his January 17, 2013 Request, the applicant sought to amend his Application to include an incident that allegedly occurred in traffic court on January 17, 2013 in which he was allegedly threatened by a member of the Thunder Bay police force. In his Request, he claims that the Thunder Bay police are “behaving like street gangsters” and that they are “out to hurt [him] or kill [him]”.
28In its Response, the Tribunal denies all allegations in the Request and seeks an order preventing the applicant from abusing the Tribunal’s process.
29In the circumstances, I find that this Request should be dealt with after a decision is made on whether consideration of this Application should be deferred pending the conclusion of the applicant’s criminal trial in which he plans to raise his Charter claims.
Submissions on Parallel Criminal Proceeding and Charter Claim
30The online news article submitted by the applicant in support of his December 3, 2012 Request indicates that he brought a Charter challenge against the respondent alleging that its conduct in arresting, charging, detaining him violated his rights to life and liberty as well as his equality rights. The article states that the applicant’s allegations regarding the respondent’s alleged Charter violations would not be heard as a separate challenge but instead as part of his criminal trial. The article notes that the criminal trial in which the applicant is charged with criminal harassment, assault with a weapon and dangerous driving was scheduled to proceed in February 2013.
31Based on the article, it appears that there is substantial overlap between the allegations and issues in the Application and these criminal proceedings, including the Charter allegations that will be raised, or were raised, as part of this criminal trial. In several cases, the Tribunal has deferred consideration of applications pending the outcome of parallel proceedings such as criminal trials and Charter applications. As a result, the Tribunal directs the parties to advise the Tribunal on the status of the applicant’s criminal trial. The Tribunal also directs the parties to provide written submissions as to whether the Tribunal should defer consideration of this Application pending the conclusion of the applicant’s criminal trial.
Order
32The Tribunal orders as follows:
a. The applicant is directed to deliver materials to the respondent’s counsel by any of the means listed in Rule 1.21, other than hand delivery.
b. The applicant is warned that all communications regarding this Application must be courteous and respectful of other participants and the Tribunal.
c. Within 14 days of the date of this Case Assessment Direction, the parties shall:
(i) advise the Tribunal on the status of the applicant’s criminal trial; and
(ii) provide written submissions as to whether the Tribunal should defer consideration of this Application pending the conclusion of the applicant’s criminal trial.
Dated at Toronto, this 8th day of March, 2013.
”signed by”
Jo-Anne Pickel
Vice-chair