Rosario v. Thunder Bay Police Services Board, 2014 HRTO 1799

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: Douglas Sanderson

Date: December 18, 2014

Citation: 2014 HRTO 1799

Indexed as: Rosario v. Thunder Bay Police Services Board

APPEARANCES

Allen Rosario, Applicant

Self-represented

Thunder Bay Police Services Board, Respondent

Holly Walbourne, Counsel

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 because of disability and creed.

2In an earlier Interim Decision in this matter, Rosario v. Thunder Bay (Police Services Board), 2013 HRTO 2094, the Tribunal dismissed all allegations against the respondent, except for the two following allegations:

a. the allegation that the respondent discriminated against the applicant because of disability when its officers refused to permit him to take his medication while in police custody on March 26, 2012 and April 14, 2012; and

b. the allegation that the respondent discriminated against the applicant during the incident when an officer called him a “sand nigger” on July 15, 2012.

3The Tribunal has scheduled a hearing of these issues on February 26 and 27, 2015, in Thunder Bay, Ontario. This Interim Decision addresses three Requests for an Order During Proceedings the applicant filed on October 24, 28 and 30, 2014, respectively. The respondent filed Responses to a Request for an Order on October 31, 2014 (addressing the first two requests) and November 3, 2014.

Request filed October 24, 2014 (the “First Request”)

4In the first Request, the applicant made the following requests:

1. Production of the Prisoner’s Medical Forms completed by constables of the respondent police service following the applicant’s arrests on March 25, 2012 and April 14, 2012;

2. Production of a policy document: Thunder Bay Police Service Part 6 Chapter 48 – Care and Handling of Prisoners, as it was at the time of the alleged incidents;

3. Exclusion of any documents used in criminal proceedings against him; and,

4. A declaration that the respondent is “guilty of committing atrocities” against the applicant because the respondent failed to provide a defence to the Application.

The applicant submitted that disclosure of the Prisoner’s Medical Forms would show that he did inform the respondent’s personnel about his medical conditions. The applicant submitted that the Care and Handling of Prisoners document was updated in June 2012 and he would like the version that was current at the time of the arrests in question. The applicant also submitted that the documents the respondent disclosed in this Application were also disclosed in the criminal proceedings and that the respondent did not provide any defence to the Application.

Request Filed October 28, 2014 (the “Second Request”)

5In the Second Request, the applicant requested that the Tribunal “uphold Rule 16.1 of the Tribunal’s Rules of Procedure (the “Rules”) and not consider any future voluntary disclosure of documents from the respondent” because the respondent allegedly delivered arguably relevant documents on October 22 and 23, 2014, when the deadline for such disclosure was October 20, 2014. The applicant also submitted that the Tribunal should not consider any extension for the disclosure deadlines pursuant to Rules 16.2 and 16.3 of the Tribunal’s Rules.

Response to the First and Second Requests

6The respondent submitted that no Prisoner’s Medical Forms were completed in respect of the applicant’s arrests on March 25, 2012 and April 14, 2012. The respondent submitted that it has “double checked” its records and did not locate any such medical forms. The respondent submitted that the chapter regarding prisoner care and handling in its policy manual has not changed since the applicant’s arrests in March and April 2012. The respondent submitted that it has produced all relevant documents in its possession and takes the position that it is entitled to rely upon any relevant document. The respondent submitted that there is no basis for the applicant’s request to find the respondent “guilty of committing atrocities” at this point in the proceeding.

7Regarding the Second Request, the respondent submitted that it provided the applicant with a list of arguably relevant documents on October 20, 2014, along with all of the listed documents, except two computer discs. The respondent submitted that the discs were delivered to the applicant on October 23, 2014 and pointed to Purolator records confirming the deliveries. The respondent submitted that it had complied with the Tribunal’s Rules and that the minor delay in the delivery of the computer discs did not affect the applicant in any way.

Request Filed October 30, 2014 (the “Third Request”)

8In the Third Request, the applicant noted that he attended at the Thunder Bay police station on the night of March 26-27, 2012. The applicant stated that the respondent provided him with a copy of the video taken of him and the respondent’s personnel in the booking room at the station on that date, but not the video of the applicant and police personnel in the lobby of the station. The applicant submitted that it was in the lobby that he requested accommodation to be able access his medications, but was denied.

Response to the Third Request

9The respondent submitted that it is unable to produce the video of the police lobby on the night in question. The respondent submitted that such a video was in fact made, but the video tapes are saved for only seven days, at which time they are recorded over. Consequently, the video no longer exists. The respondent also submitted that, in any event, the lobby video does record audio.

Analysis and Decision

10At the pre-hearing stage, the Tribunal will order disclosure of documents if the requesting party establishes they are arguably relevant, i.e., that they may prove or disprove a fact in issue in the dispute. The Tribunal may decline to order disclosure documents that are privileged or raise privacy concerns. See McKay v. Toronto Police Services Board, 2009 HRTO 1220. A finding that a document is arguably relevant does not imply that the document will actually be found to be relevant or admissible at a hearing.

11The Prisoner’s Medical Forms, as described by the applicant, would be arguably relevant documents that should be disclosed, if they exist. The respondent, consistent with its position in this Application, states that no such forms were completed when the applicant was incarcerated on March 26, 2014 and April 14, 2014, because the applicant did not indicate that he needed to take medication. The respondent states that it has re-checked its records and confirms that it does not have these documents. In a letter dated November 6, 2014, however, the applicant submitted that he had received the Prisoner’s Medical Forms as part of the Crown disclosure during the criminal proceedings. The applicant stated that he was incarcerated for over a year and lost his personal belongings, including the Crown’s disclosure. In these circumstances, I find it appropriate to require the respondent to inquire of the Crown to determine if the Crown has copies of any such Prisoner’s Medical Forms and, if so, to obtain and disclose copies to the applicant.

12The chapter of the respondent’s policy manual regarding the care and handling of prisoners that was current when the applicant was arrested is arguably relevant. However, the respondent’s submissions indicate that the version provided to the applicant was the version that was current at the time of the arrests in question. Accordingly, it is unnecessary to order the disclosure of this document.

13The video of the lobby of the police station on March 26, 2014 showing the applicant’s interactions with the respondent’s personnel would also be arguably relevant. The respondent, however, has explained that these videos are recorded over after seven days and, as a result, the video of the night in question no longer exists. I note that the applicant filed this Application on August 16, 2012. Consequently, the respondent would have had no reason to preserve the video within the seven day period such videos are kept. I decline to grant the applicant’s request regarding the video, as it appears that it no longer exists.

14There is no reason to exclude evidence merely because it was used in another proceeding. The primary determinant of whether evidence is admissible is the evidence’s relevance to the issues in dispute, which cannot be determined at this point in the proceeding.

15I agree with the respondent that, at most, the respondent produced some of the arguably relevant documents in its possession a few days after the deadline set in Rule 16.1. Such deadlines must be respected, but the delay in this case is slight and the applicant identified no prejudice to him arising out of this delay. Consequently, there is no proper basis for the relief the applicant requested.

16Similarly, there is no proper basis for the applicant’s request that the Tribunal find the respondent “guilty”. The respondent has filed a Response in which it denies the applicant’s allegations and presents a factual narrative quite at odds with the allegations set out in the Application. Consequently, the applicant’s submission that the respondent has not presented a defence to the Application is entirely baseless.

Order

17The Tribunal orders as follows:

1. Within 21 days of the date of this Interim Decision, the respondent shall request that the Crown Attorney office responsible for the prosecution of the applicant (the “Crown”) search its records regarding the applicant to determine if they contain Prisoner’s Medical Forms regarding the arrests of the applicant on March 25, 26 or 27, 2012 and April 14, 2014. If the Crown has such documents, the respondent shall obtain copies of them and shall immediately deliver them to the applicant and this Interim Decision shall authorise/direct the Crown to produce these documents to the respondent. If the Crown’s records do not contain these documents, then the respondent shall confirm this in writing to the applicant and Tribunal; and,

2. All of the applicant’s other requests set out in the First, Second and Third Requests are dismissed.

Other Issues

18In its Response to a Request for Order filed on October 31, 2014, the respondent also made a request for certain relief pertaining to the applicant’s conduct in these proceedings. It is not appropriate to include such a request in a Response to a Request for an Order. The Tribunal’s Rules do not contemplate such a practice and, as a result, the other parties often do not respond to such requests, which causes confusion and unnecessary case management, as in this case. The appropriate procedure is to file a separate Request for an Order During Proceedings, which procedure the Tribunal expects the parties to follow in the future.

19Rather than require the respondent to re-file its Request, the Tribunal directs the applicant to respond to the respondent’s request set out in Schedule “A” to its Response to a Request for an Order filed on October 31, 2014.