Aziga v. Ontario (Community Safety and Correctional Services), 2014 HRTO 1227

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Johnson Aziga

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Theren Beecroft, Dr. Anita Grewal and Kent Milligan

Respondents

-and-

The City of Hamilton and Linda Blake-Evans, Hamilton Police Service and Troy Ashbaugh, The AIDS Network, Toula Bezas, Davies Bagambiire, and the Ontario Ombudsman

Affected Parties

INTERIM DECISION

Adjudicator: Mark Hart

Date: August 18, 2014

Citation: 2014 HRTO 1227

Indexed as: Aziga v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Johnson Aziga, Applicant

Self-represented

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Theren Beecroft and Kent Milligan, Respondents

Tina Earl, Counsel

Dr. Anita Grewal, Respondent

Fred Tranquilli, Counsel

The City of Hamilton and Linda Blake-Evans, Affected Parties

Byrdena MacNeil, Counsel

Hamilton Police Service and Troy Ashbaugh, Affected Parties

Marco Visentini, Counsel

The AIDS Network, Affected Party

Kevin Robinson, Affected Party

Davies Bagambiire, Affected Party

Self-represented

The Ontario Ombudsman, Affected Party

Jean-Frédéric Hübsch, Counsel

Introduction

1This is an Application dated November 1, 2013 and filed on January 10, 2014 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 because of race, colour, ancestry, place of origin, ethnic origin, disability, association with a person identified by a protected ground and reprisal or threat of reprisal.

2The purpose of this Interim Decision is to address the applicant's Request for Order dated July 10, 2014 and received by the Tribunal on July 30, 2014, seeking: consolidation of this Application with two other Applications filed by the applicant; amendment of his Application; an extension of time; and production of documents by the respondents and certain third parties. Given the delay in receipt of this Request for Order by the Tribunal, the respondents and the affected parties were given until August 13, 2014 to files their Responses.

Request for Consolidation

3The applicant requests consolidation of this Application with Applications 2013-14176-I and 2013-14429-I, which previously had been filed by the applicant against various respondents. These latter two Applications were dismissed for delay by Decision dated January 31, 2014 (2014 HRTO 144). The applicant has filed a Request for Reconsideration of that Decision, and the reconsideration decision is pending. However, the fact remains that at the current time, the status of the applicant's two previous Applications is that these Applications have been dismissed. Accordingly, there is no basis for consolidation of these two Applications with the instant Application at the present time.

Request for Amendment

4On the Request for Order form, the applicant has checked the box indicating that he is requesting the amendment of his Application. However, in the body of the Request, the applicant has not specifically addressed what, if any, amendments to his Application are being sought. Accordingly, there is no basis to grant an amendment at this time.

Request for extension of time

5In a letter dated July 10, 2014 accompanying his Request for Order, the applicant takes issue with certain statements made by me in a Case Assessment Direction ("CAD") dated June 17, 2014.

6First, the applicant states that my CAD is contradictory, in that in para. 1, I indicated that the applicant had stated that he was not available for the October 20, 2014 teleconference hearing and then in para. 2, I stated that the applicant had not in fact indicated that he is unable to attend the preliminary hearing on October 20, 2014. These are not contradictory statements. In his correspondence to the Tribunal, the applicant had asserted that he was not available for the October 20, 2014 teleconference hearing, but he did not provide any basis to indicate that he was physically unable to attend the teleconference hearing on the scheduled date. Rather, he continued to take the position that he did not have adequate time to prepare for the teleconference hearing, given his current incarceration and the difficulties he is experiencing in accessing materials he states that he requires.

7Second, the applicant states that I incorrectly made reference to correspondence from the applicant dated May 4, 2014, when in fact his correspondence is dated May 9, 2014. I accept that, as the applicant's letters are written by hand, I misinterpreted the date of this letter. That has no bearing on the content of my CAD.

8The applicant also takes issue that in the CAD, I stated that in my prior Interim Decision in this matter dated April 30, 2014 (2014 HRTO 609), "I detailed a number of steps the applicant could take to address these concerns [about his need for additional time to prepare and his lack of materials]. While the applicant appears to be taking some steps to address his lack of computer access with prison authorities and the court, he has not taken any of the other steps outlined in my Interim Decision." Based upon the material before me, including the further material filed by the applicant in support of his Request for Order, I stand by this statement.

9In my Interim Decision dated April 30, 2014, I set out three specific steps for the applicant to take in preparation of the teleconference hearing, namely: (1) filing a Request for Order on notice to his former legal counsel seeking an order for production of documents from a third party; (2) making every effort to obtain a printed copy of the material on his memory stick, including making a request for the correctional facility to make a copy of these documents or for permission to provide the memory stick to a third party for this purpose; and/or (3) even without the aid of this documentation, seeking to the best of his ability to provide the specifics or particulars requested in the CAD.

10While the applicant now has taken the first step, he did not do so for over two months from the date of my Interim Decision and had not done so at the time of my CAD. There is no indication in the material before me that the applicant has taken either the second or third steps.

11Accordingly, the teleconference hearing will proceed as scheduled on October 20, 2014, and the applicant is directed to comply with the timelines set out in my Interim Decision dated April 30, 2014, with the exception that I am prepared to extend the time for the applicant to file his materials from September 3, 2014 to September 17, 2014, in light of the timing of the documentary production I am ordering pursuant to this Interim Decision. The applicant is directed to comply with my Order within this extended timeline to the best of his ability on the basis of the materials currently in his possession, including his own personal knowledge of the allegations at issue in this Application, and the production ordered herein. All other timelines remain as indicated in my Interim Decision.

Request for production

12The applicant has made a request for production against the following: his former legal counsel in the criminal proceeding, Mr. Bagambiire; the Ombudsman Ontario; and the respondents to this Application and his two prior Applications. I will address each request in turn.

13With regard to the applicant's requests for production by persons or organizations which are not respondents to the instant Application, I note that Rule 1.7(p) of the Tribunal's Rule of Procedure empowers this Tribunal to "require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form".

1) Request for production by Mr. Bagambiire

14The applicant has requested production of the following specific documents or materials from Mr. Bagambiire:

a. The applicant's 2003 to 2014 daily diaries;

b. Handwritten notes that the applicant gave to Mr. Bagambiire for the purpose of his application in the criminal proceeding under s. 12 of the Charter;

c. Handwritten and electronic notes that the applicant gave to Mr. Bagambiire for preparation of his initial Tribunal applications;

d. A copy of his initial Tribunal application prepared in 2011;

e. A copy of the 16 GB USB memory stick with the files saved on it;

f. Files of his inmate complaints to the Ombudsman Ontario that the applicant gave to Mr. Bagambiire; and

g. Other documents relating to the applicant's Tribunal applications not listed here.

15In his Response, Mr. Bagambiire notes that he acted as counsel for the applicant at his criminal trial in Hamilton in 2009 and in an effort to obtain a legal aid certificate for the applicant's appeal, but was removed as counsel on the appeal by order of the Court of Appeal for Ontario. Mr. Bagambiire states that he has never represented the applicant in relation to his human rights applications. Mr. Bagambiire states that his firm does not have documents relevant to the applicant's human rights applications. He states that, while his firm has several cartons of documents in storage from the criminal trial, these documents were to have been collected by the applicant's new criminal counsel, but this has not yet occurred. He states that it would be unfair and oppressive to order that his firm produce documents for a proceeding that the firm has no idea about and has never been involved in. Further, he notes that most of the disclosure made to defence counsel in the criminal trial is protected and produced solely for the purpose of the criminal proceeding, and cannot otherwise be disclosed without an order of the court.

16With regard to the last point, I do not understand the applicant to be requesting any disclosure made by the Crown in the context of the criminal proceeding. Rather, he is seeking only materials that he says he provided to Mr. Bagambiire at some point during the course of their solicitor-client relationship. While Mr. Bagambiire has made a general statement that he does not have any documents or materials relevant to this human rights proceeding, he has not responded specifically to the particular documents and materials sought by the applicant.

17As stated in a CAD dated February 10, 2014, in the instant Application, in respect of many allegations, the applicant has identified a broad period of time during which he alleges that the discriminatory acts occurred which I understand covers the entire period of his detention in provincial custody from 2003 to 2011, without providing any specifics or particulars regarding the specific dates when alleged incidents of discrimination occurred or what is alleged to have occurred on those dates. In particular:

a. The applicant alleges that the respondents refused to provide him with such information as his inmate / prisoner rights and Ministry policies and procedures throughout the entire period from August 30, 2003 to August 22, 2011 at four different facilities. He does not provide any specifics or particulars as to specifically when he alleges that this information was not provided to him in respect of each facility, when he says this information first ought to have been provided to him, and what if any requests he made for any such information and when;

b. The applicant alleges that he was denied access to his own documents and had his documents removed or destroyed from his cell or from storage in his inmate personal property bag / box throughout the entire period from August 30, 2003 to August 22, 2011 at the same four different facilities. He does not provide any specifics or particulars as to specifically when he alleges that he was denied access to any specific documents or when any specific documents were removed or destroyed in respect of each facility, and what if any complaints he made about any such documents being denied, removed or destroyed and when;

c. The applicant alleges that he was denied receipt of his Toronto Star subscription between 2006 and August 22, 2011 at three different facilities. He does not provide any specifics or particulars as to specifically when he alleges that he was first denied receipt of this subscription in respect of each facility, and what if any complaints he made about his being denied receipt of this subscription and when;

d. The applicant alleges that his incoming and outgoing regular mail and telephone conversations were disrupted and he was denied access to his lawyers and his solicitor-client privilege was violated throughout the entire period from August 30, 2003 to August 22, 2011 at four different facilities. He does not provide any specifics or particulars as to specifically when he alleges that his mail or telephone conversations were disrupted or when he was denied access to his lawyers and/or his solicitor-client privilege was violated in respect of each facility, and what if any complaints he made about any such actions and when;

e. The applicant alleges that he was denied treatment for his HIV and that there were lapses in the administration of anti-retroviral therapy ("ART") between February 2005 and April 22, 2010 at two facilities. He does not provide any specifics or particulars as to specifically when he alleges that he was denied such treatment or experienced such lapses in ART in respect of each facility, and what if any complaints he made about any such actions and when. In this regard, I note that the applicant provided as part of his Application the first page of a letter dated June 30, 2010 from Ombudsman Ontario which appears to be a response to a complaint that the applicant made to that agency about this issue, but has not provided the full letter or any documents or information about when he initiated this complaint;

f. The applicant alleges that he was discriminated against on grounds of his disability by being subjected to excessive periods of segregation and close confinement throughout the entire period from August 30, 2003 to August 22, 2011 at Hamilton Wentworth Detention Centre, but does not indicate what if any complaints he made about any such actions and when.

18In the CAD dated February 10, 2014, I directed the applicant to provide specifics or particulars in relation to these allegations. It is for the purpose of complying with this direction that the applicant is seeking the materials that he states he provided to Mr. Bagambiire. In my view, the documents and material identified by the applicant may contain information that is relevant for the purpose of responding to my direction, and as such are relevant to this proceeding, the direction I have made, and the issues to be determined at the preliminary hearing.

19Accordingly, I am ordering Mr. Bagambiire to make a diligent search of the documents and materials in the possession of his firm in order to ascertain whether or not he has the specific documents or materials identified by the applicant, and to report to this Tribunal, the applicant and the respondents to this Application regarding the steps he has taken to determine whether his firm has these documents and materials in its possession, and provide a response in respect of each item requested as to whether he has been able to locate the item requested. For any items that Mr. Bagambiire is able to locate, he is ordered to attach a copy of the relevant documents and/or material only for the applicant, given the potential issues of solicitor-client privilege. If Mr. Bagambiire is able to locate the electronic notes identified as item (c) above or the USB stick identified as item (e) above, he is directed to provide to the applicant a printed copy of any materials contained therein. If the applicant intends to rely upon any material disclosed to him by Mr. Bagambiire for the purpose of the teleconference hearing, the applicant shall disclose any such material to the respondents and file it with the Tribunal by the September 17, 2014 deadline.

20Mr. Bagambiire shall comply with this Order within 14 calendar days of the date of this Interim Decision.

2) Request for production by Ombudsman Ontario

21In his Request for Order, the applicant seeks the following specific documents from the Ombudsman Ontario:

a. Completed inmate complaint forms (the blue envelopes), including the details or evidence that was attached, pertaining to file nos. 228650, 233957 and 226022 and complaints about inadequate psychiatric care, inadequate vision care and other issues;

b. Exhibits that the applicant attached to the inmate complaints to the Ombudsman including the clippings of the front pages with the title and dates of Toronto Star newspapers; and

c. Investigative notes and reports, correspondence to and from the applicant, the Ombudsman Ontario and the respondents.

22The applicant states that he made a request to the Ombudsman Ontario on March 3, 2014 for copies of all material that he had filed with the Ombudsman from 2003 to 2014. He further states that on April 8, 2014, he received incomplete copies of the documents in the Ombudsman's possession regarding file no. 228650, and did not receive any documents pertaining to file nos. 233957 or 226022. He further states that he did not receive any documents pertaining to his complaints about his "red bag" getting lost en route from the Don Jail to the Hamilton Wentworth Detention Centre and then re-surfacing with a stash of marijuana, about inadequate psychiatric and vision care, and other complaints. The applicant states that these latter complaints were not assigned a file reference number by the Ombudsman's office. He further states that pages from his inmate complaint forms that had his name, signature and date were excluded from material he received from the Ombudsman's office.

23The applicant states that on April 16, 2014, he made another request to the Ombudsman's office to provide this additional material, but to date has not received any response.

24The Ombudsman Ontario submits that it is precluded by its governing legislation from complying with the applicant's request. It particularly relies upon s. 24 of the Ombudsman Act, R.S.O. 1990, c. O.6 as amended, which provides in sub-s. (3) that "anything said or any information supplied or any document or thing produced by any person in the course of any inquiry by or proceedings before the Ombudsman under this Act is privileged in the same manner as if the inquiry or proceedings were proceedings in a court" and in sub-s. (2) that "the Ombudsman, and any person [holding any office or appointment under the Ombudsman], shall not be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything coming to his or her knowledge in the exercise of his or her functions under this Act".

25The Ombudsman Ontario relies upon an oral ruling by Justice Shamai in R. v. Gioris rendered on November 26, 2007. In that ruling, Shamai J. quashed a subpoena that had been issued to an investigator for the Ombudsman's office to compel her to testify and produce documents in the context of a criminal proceeding. In doing so, Shamai J. states: "there is no provision for the admission of documents collected by the Ombudsman's Office . . . because of the private nature of the investigations, it is not contemplated that documentary evidence be tendered in evidence . . ."

26The Ombudsman Ontario also relies upon a decision of Justice Hall of the Supreme Court of Newfoundland and Labrador, Trial Division (General) dated October 8, 2013 in Newfoundland and Labrador (Citizens' Representative) v. HMQ, 2013 NLTD(G) 134. In that case, the Royal Newfoundland Constabulary had obtained a production order under the Criminal Code compelling the Citizens' Representative (who I understand functions in a manner similar to the Ombudsman Ontario) to produce the names, addresses, dates of birth and telephone numbers of all persons who had made complaints to the office of the Citizens' Representative and that were investigated by a named investigator. This production order was quashed by Justice Hall on the basis that the legislation governing the Citizens' Representative contained an absolute bar against disclosure of information received by that office.

27In my view, the provisions of the Ombudsman Act and the authorities relied upon by the Ombudsman Ontario provide a complete answer at least to the applicant's request for any investigative notes or documents provided by respondents in the context of any Ombudsman investigation into complaints made by the applicant.

28This does not, however, provide a response to the applicant's request for complaints and materials submitted by him to the Ombudsman's office or for correspondence regarding any such complaints that was sent or copied to him. In my view, a request for such materials is not precluded by the provisions of the Ombudsman Act. The applicant is not seeking to violate the privilege that attaches to Ombudsman investigations nor is he seeking to compel any Ombudsman staff member to testify. In respect of these latter materials, he is merely seeking to retrieve what he himself provided to the Ombudsman's Office or documents that already have been sent to him, in order to respond to the direction given to him to provide particulars. While under normal circumstances, one might observe that the applicant already should have such materials in his possession, I appreciate that the applicant's circumstances are not normal given his lengthy incarceration, and he may not currently have copies of these materials in his possession.

29I am fortified in concluding that these materials should be provided to the applicant on the basis of the Ombudsman Ontario's own submission that, "when a complainant requests documents relating to their complaint, the Ombudsman's practice is to provide the complainant with copies of any documents and correspondence that they have forwarded to the Ombudsman, as well as any correspondence the Ombudsman has sent to the complainant." That is all I am directing the Ombudsman Ontario to do.

30Given that at least some of the allegations at issue in the instant Application appear to have been the subject of inmate complaints made by the applicant to Ombudsman Ontario and may therefore contain information relevant to my direction for the applicant to provide particulars, I am satisfied that the documents I am ordering to be produced are relevant and necessary for the purpose of the preliminary hearing.

31Accordingly, within 14 calendar days of the date of this Interim Decision, I order the Ombudsman Ontario to provide to the applicant the documents he has requested, with the exception of investigative notes and reports and correspondence to or from the Ombudsman Ontario or respondents that were not sent or copied to the applicant.

3) Request for production from respondents

32From the respondents to the instant Application and the respondents to the applicant's prior two Applications, the applicant requests production of the following:

a. The applicant's quarterly HIV / AIDS prognosis and other medical reports by a specified doctor at the McMaster University Hospital SIS clinic;

b. The applicant's daily HIV / AIDS treatment and other medical treatment reports, charts and/or records;

c. The applicant's HIV / AIDS medical appointment and attendance reports, charts and/or records;

d. The applicant's other medical appointment and attendance reports, charts and/or records;

e. Files of the applicant's inmate complaints with the Ombudsman Ontario that the respondents have in their possession;

f. Other documents pertaining to his human rights applications not listed here; and

g. Financial records, in particular records for newspaper orders.

33Unlike the applicant's previous production requests, the applicant here is not seeking materials that he prepared and provided to his former legal counsel or to the Ombudsman Ontario or that previously were sent or copied to him. Rather, the applicant is essentially seeking disclosure from the respondents of other categories of documents prepared or maintained by other individuals. As noted by the respondents, this type of disclosure generally occurs under the Tribunal's Rules of Procedure after a Notice of Hearing on the substance of an application has been issued: see Rule 16.1. Where an application has been scheduled for a summary or preliminary hearing, as in the instant case, there is no provision in the Tribunal's Rules requiring respondents to make disclosure of all arguably relevant documents in their possession.

34That does not mean that a request for production will never be considered at the stage of a summary or preliminary hearing. However, in such circumstances, the Tribunal would need to be satisfied that the production sought is relevant and perhaps even necessary for the purpose of the issues to be determined at the summary or preliminary hearing. In the instant case, whether or not the documents sought ultimately may be arguably relevant to the allegations raised by the applicant and whether or not all or some of these documents are even in the possession of any of the respondents, the applicant has not provided any basis in his materials to support why these documents are relevant or necessary for the purpose of the delay issue to be determined at the October 20, 2014 preliminary hearing. I appreciate that the applicant is attempting to respond to my direction that he provide particulars of his allegations. But he has not provided any basis in his materials to indicate why he requires these particular documents in order to respond to my direction. I am asking the applicant to provide specifics and particulars of events that should be within his own knowledge, not to embark upon a broad expedition to seek out documents that were never in his possession.

35Accordingly, the applicant's request for production of these documents by the respondents is denied.

ORDER

36For all of the foregoing reasons, I hereby make the following orders:

a. The applicant's requests for consolidation and to amend his Application are denied;

b. The applicant's request for an extension of time is denied, with the exception that the time for the applicant to file his materials for the preliminary hearing is extended from September 3, 2014 to September 17, 2014. The applicant is directed to comply with the Order as set out in para. 10(a) of my Interim Decision dated April 30, 2014 within this extended timeline to the best of his ability on the basis of the materials currently in his possession, including his own personal knowledge of the allegations at issue in this Application, and the production ordered herein. All other timelines remain as indicated in my Interim Decision and the preliminary hearing shall proceed as scheduled on October 20, 2014 commencing at 9:30 a.m.;

c. Within 14 calendar days of the date of this Interim Decision, Mr. Bagambiire shall:

i. Make a diligent search of the documents and materials in the possession of his firm in order to ascertain whether or not he has the specific documents or materials sought by the applicant as set out in para. 14 above, and report to this Tribunal, the applicant and the respondents to this Application regarding the steps he has taken to determine whether his firm has these documents and materials in its possession, and provide a response in respect of each item requested as to whether he has been able to locate the item requested; and

ii. For any items that he is able to locate, attach a copy of the relevant documents and/or material only for the applicant. If he is able to locate the electronic notes identified at para. 14(c) above or the USB stick identified at para. 14(e) above, he is directed to provide to the applicant a printed copy of any materials contained therein.

d. Within 14 calendar days of the date of this Interim Decision, Ombudsman Ontario shall provide to the applicant the documents he has requested as set out at para. 21 above, with the exception of investigative notes and reports and correspondence to or from the Ombudsman Ontario or respondents that were not sent or copied to the applicant.