Clipperton-Boyer v. RedFlagDeals.com, a division of Yellow Pages Group Inc., 2014 HRTO 1392

Human Rights Tribunal of Ontario

Between:

Allan Clipperton-Boyer Applicant

-and-

RedFlagDeals.com, a division of Yellow Pages Group Inc. Respondent

Interim Decision

Adjudicator: Mark Hart Date: September 18, 2014 Citation: 2014 HRTO 1392 Indexed as: Clipperton-Boyer v. RedFlagDeals.com, a division of Yellow Pages Group Inc.

1This is an Application dated March 18, 2013, alleging discrimination with respect to services, goods and facilities because of creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In brief, the issue in this case relates to an avatar that the applicant uses when he is posting messages to the respondent's website, which is a "Christ fish" and (except for a period of time) includes the words "Jesus Christ, God's Son, Saviour" underneath. He has been asked by the respondent to stop using this avatar because it is religious in nature and contrary to the respondent's Forum Rules.

3The hearing in this matter is scheduled to take place on September 29 and 30, 2014. The parties were given notice of these hearing dates on April 4, 2014. At that time, the hearing was to take place at the Tribunal's Hearing Centre at 655 Bay Street in Toronto.

4By letter from the applicant dated July 7, 2014, which was received by the Tribunal on July 30, 2014, the Tribunal was advised that the applicant had been incarcerated at the Toronto East Detention Centre ("TEDC"). The applicant's letter states that TEDC management were aware of the hearing dates before this Tribunal, and would make all due effort to ensure that he was able either to attend the hearing at the Tribunal's hearing centre or be available to attend the hearing by telephone.

5It does occur from time to time that parties to a proceeding before this Tribunal are incarcerated on the dates scheduled for a hearing. The Tribunal has been advised that an incarcerated person will not be delivered to the Tribunal's hearing centre. While an incarcerated party can be allowed to participate in a hearing by phone from the detention centre, participation in such manner is far from ideal. In such circumstances, the Tribunal is reluctant to cancel previously scheduled hearing dates, and has explored alternative options to allow the hearing to proceed as scheduled, including holding the hearing at the detention centre or arranging for a hearing room at a court facility to which the incarcerated person can be delivered.

6In the specific circumstances of this case, Tribunal staff communicated with TEDC management and were able to secure a conference room at the facility for the hearing to be held. The Tribunal has not yet formally notified the parties of this change in venue, which was initiated by the Tribunal.

7On September 12, 2014, the applicant sent an e-mail in which he states that after speaking with security at TEDC and the Tribunal's Assistant Registrar responsible for scheduling, he had been advised that a room at TEDC had been booked for September 29 and 30, 2014 and he would be in attendance for the hearing on those dates. He also states that after conversations with HRTO management and due to his incarceration, he was given permission to submit his documents late. With this e-mail, the applicant submitted the documents upon which he intends to rely at the hearing, which the Tribunal was able to access.

8On September 16, 2014, the Tribunal received e-mail correspondence from respondent counsel objecting to the late delivery of the applicant's documents and to the change in venue.

9The respondent first notes that it was not involved in communications between the applicant, Tribunal staff and TEDC. As indicated above, the change in venue was initiated by the Tribunal in response to information about the applicant's incarceration. This was not a request made by the applicant. It appears that the applicant discovered from staff at TEDC that the Tribunal had booked a room at that facility for the hearing, prior to the Tribunal issuing a formal notice regarding the change in venue, which the applicant subsequently confirmed in a discussion with the Tribunal's Assistant Registrar. With regard to the alleged extension of time to file his documents, the applicant is not correct in stating that he was given permission by the Tribunal to file his documents late. The late filing of the applicant's documents is a matter which, if necessary, can be addressed before the adjudicator at the hearing.

10The respondent also objects to the applicant's failure to provide a list of witnesses and summary of anticipated evidence as required by the Rules. The applicant clearly intends to attend the hearing. I expect that he will be testifying on his own behalf, and will testify as to the matters set out in his Application. He has not given notice that he intends to call any other witnesses to testify. Any issues relating to the scope of the applicant's evidence may be addressed before the adjudicator at the hearing.

11The respondent further objects to the change in venue. The respondent states that it does not have information regarding the proposed new venue, its hearing capabilities or limitations, or the logistics associated with attending the facility (including the associated security protocols, which are likely to be extensive). It states that it does not have sufficient time to investigate and resolve any potential issues with the venue given that the hearing is scheduled to commence in less than two weeks. Furthermore, the respondent states that the proposed location would be significantly more inconvenient and costly for the respondent and its witnesses, who should not suffer prejudice as a result of the applicant's incarceration.

12There is a security protocol that will need to be followed in order to enter TEDC and access the hearing room, but it is not particularly onerous. The hearing room is rather small, but it appears that only the adjudicator, the applicant, respondent counsel and its one witness will be in attendance, so there should be ample room. While it may be marginally more expensive for respondent counsel and its one witness to get to TEDC, it is difficult to see this as a significant barrier, particularly in light of the competing interests of facilitating the applicant's ability to attend the hearing and ensuring that this matter moves forward in an expeditious manner.

13The respondent requests an adjournment of three to four months in order to respond to these "unexpected challenges". In my view, this is both unnecessary and unwarranted. Further, there is no guarantee that the applicant will no longer be incarcerated in three or four months, which would present the same challenges as the Tribunal and the parties are facing now.

14For these reasons, the respondent's request for an adjournment is denied. The parties shortly will receive formal notice from the Tribunal regarding the new venue for the hearing. Any issues regarding the applicant's late disclosure of documents or the scope of his evidence may be raised at the hearing.