Rosario v. Thunder Bay Police Services Board, 2014 HRTO 237

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 Date: February 20, 2014 Citation: 2014 HRTO 237 Indexed as: Rosario v. Thunder Bay Police Services Board

WRITTEN SUBMISSIONS

Allen Christopher Rosario, Applicant Self-represented

Thunder Bay Police Services Board, Respondent Holly Walbourne, Counsel

Introduction

1This Interim Decision addresses the applicant’s request that the hearing of this Application be deferred until he is released from jail.

2By Application dated August 16, 2012, the applicant alleged that the Thunder Bay Police Services Board discriminated against him with respect to the provision of police services because 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”).

3By Interim Decision, 2013 HRTO 2094, dated December 18, 2013, 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.

4The Tribunal ordered that the surviving portion of the Application proceed to mediation since the parties had agreed to mediation.

Applicant’s Deferral Request

5By letter dated January 28, 2014, the applicant withdrew his consent to mediation. He also requested that the hearing of this matter be “adjourned”, or deferred, until he is released from jail. It is not clear when this will occur.

6By letter dated January 31, 2014, the respondent objected to the applicant’s deferral request on the basis that the applicant is requesting an indefinite deferral and that such a deferral would be unfair to the respondent. The respondent also argued that the applicant’s request should be denied because his own actions have placed him in custody.

Analysis

7The Tribunal has the power defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of a party. In considering requests to defer, the Tribunal must determine the most fair, just and expeditious way of proceeding in the circumstances. See s. 45 of the Human Rights Code, R.S.O. c. H. 19 and Rule 14 of the Tribunal’s Rules of Procedure.

8Although the respondent submitted that a deferral would be unfair to it, it has not identified any specific prejudice that will be caused to it if the applicant’s request is granted. Having said this, I am mindful of the delay that will be caused if the applicant’s request is granted. I am also mindful of the potential prejudice that might be caused to the respondent in the event of an extended delay in these proceedings.

9However, I must also consider the unfairness caused to the applicant of proceeding with a merits hearing while he is in custody. The Tribunal has held a summary hearing of the Application by telephone despite the fact that the applicant is in custody. The main surviving allegation in the Application is an allegation that the respondent discriminated against the applicant because of disability when its officers refused to permit the applicant to take his medication while in police custody. Among other things, in order to satisfy his legal onus to establish discrimination, the applicant may require access to medical and other documentation that would be difficult, if not impossible, for him to collect while in jail. Since he is self-represented, he cannot rely upon counsel to prepare his case for him.

10On balance, at this point, I find that the unfairness to the applicant of proceeding with a merits hearing while he is in custody outweighs any prejudice to the respondent. However, in my view, it would not be appropriate to simply grant the applicant’s request that this matter be deferred pending his release from custody, as it is not clear when this will occur. In the circumstances, I find that it is appropriate to order that the Application be deferred for six months from the date of this Interim Decision, or the date of the applicant’s release from custody, whichever occurs first. If the applicant is released from custody within the next six months, he must file a request to re-activate his Application within 30 days of his release. If he does not do so, his Application may be dismissed as abandoned. If the applicant remains in custody upon the expiry of the six month period, he may renew his deferral request and the Tribunal will consider his renewed request at that time.

order

11For the reasons set out above, the Tribunal orders as follows:

a. The Application is deferred for six months from the date of this Interim Decision, or the date of the applicant’s release from custody, whichever occurs first.

b. If the applicant is released from custody within the next six months, he must file a request to re-activate his Application within 30 days of his release. If he does not do so, his Application may be dismissed as abandoned.

c. If the applicant remains in custody upon the expiry of the six month period, he may renew his deferral request and the Tribunal will consider his renewed request at that time.