Francisco v. Ontario (Community Safety and Correctional Services), 2015 HRTO 1344

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Derek Francisco Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services (Ontario Provincial Police) and Lorie Lalonde Respondents

DECISION

Adjudicator: Mark Hart Date: October 8, 2015 Citation: 2015 HRTO 1344 Indexed as: Francisco v. Ontario (Community Safety and Correctional Services)

1This is an Application dated February 15, 2014 alleging discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In brief, as a result of this Tribunal’s Interim Decision dated August 4, 2015 (2015 HRTO 1028), this Application arises out of an incident that occurred on March 26, 2013 when the applicant attended at the court house in Parry Sound for an appeal hearing. The applicant states that he spoke with a court supervisor and obtained permission to use a room at the court house for the purpose of smoking medical marijuana as an accommodation for his disability. Later that afternoon, the applicant states that he was in this room with the door slightly ajar, when two OPP officers pushed the door open. An interaction ensued with the applicant being arrested and handcuffed. The applicant alleges discrimination because of disability as a result of how he says he was treated during the course of this interaction, and unprofessional and degrading comments alleged to have been made by the personal respondent.

3This matter is scheduled to proceed to a hearing in Toronto on October 22 and 23, 2015. In the Interim Decision dated August 4, 2015, I addressed the issue of certain accommodations requested by the applicant that he alleges are required because of disability. This issue arose out of an incident involving the applicant when he attended mediation at the Tribunal’s hearing centre on January 16, 2015.

4By e-mail correspondence dated January 15, 2015, the applicant was granted accommodation for the purpose of the mediation in this matter held on January 16, 2015, to use a vapourizer inside his assigned mediation room for the purpose of taking his medical marijuana. As stated in the Tribunal’s letter of January 28, 2015, this accommodation was granted on the basis of the applicant’s representation that this vapourizer emits hot air vapour and not smoke. However, as stated in the Tribunal’s January 28, 2015 letter, a marijuana joint was smoked inside the applicant’s assigned mediation room during the mediation.

5By letter to the applicant dated January 28, 2015, the Tribunal advised the applicant that smoking marijuana indoors, even for medical reasons, during any of this Tribunal’s proceedings is not permitted. The Tribunal stated that in the future, if the applicant has a medical disability that requires him to smoke or vapourize marijuana during a Tribunal proceeding, then the Tribunal will provide the applicant with accommodation by allowing breaks so that he can smoke or vapourize outdoors. The Tribunal further stated that, if the applicant felt that this was not acceptable and wished the Tribunal to consider other forms of accommodation in relation to his medical needs, then the Tribunal remained willing to explore these with him at his request. However, the Tribunal notified the applicant that it might require additional information from him in order to make an informed decision.

6By e-mail correspondence dated February 5, 2015, an individual who attended the mediation with the applicant wrote to the Tribunal taking the position that the Tribunal’s actions towards the applicant were discriminatory. This correspondence states that a licence to use marijuana for medical purposes is a federal licence that allows anyone with such a licence to possess marijuana at any time for medical purposes. It is further stated that Health Canada suggests smoking marijuana, not vapourizing. This provides no basis to support any assertion that a medical marijuana user is entitled to smoke marijuana, as opposed to possess marijuana, at any time or in any specific place. With regard to the reliance on federal paramountcy in this correspondence, this only applies where there is a conflict and no conflict has been shown.

7The applicant subsequently refused to provide his available dates for the scheduling of the hearing in this matter, unless the Tribunal agreed to allow him to smoke marijuana during the hearing. The Tribunal responded by letter dated April 7, 2015 to confirm its commitment to ensure that the applicant is able to access this Tribunal’s services and to accommodate his disability up to the point of undue hardship. However, the Tribunal noted that to the date of the letter, the applicant had not provided information that allowed the Tribunal to meaningfully assess the applicant’s needs or consider why the Tribunal’s proposal to allow the applicant to take breaks during the hearing as needed and smoke marijuana outside does not reasonably accommodate his disability-related needs. The Tribunal stated that it had carefully considered the applicant’s specific request for accommodation by being allowed to smoke marijuana during the hearing, and expressed significant concerns about sidestream THC contained in cannabis smoke and its risk to passive inhalers, particularly in a closed environment. The Tribunal once again expressed its view that allowing the applicant to take breaks to smoke marijuana outside was a reasonable form of accommodation, but continued to express its willingness to explore alternate forms of accommodation if the applicant felt that this arrangement did not meet his disability-related needs.

8As the applicant refused to provide his available dates for the hearing, a Notice of Hearing was issued on April 7, 2015 setting October 22 and 23, 2015 as the hearing dates in this matter.

9On July 7, 2015, the applicant sent e-mail correspondence to the Tribunal stating that he would be exercising his right to smoke marijuana during the hearing “as per federal paramountcy”. The applicant stated that he is not seeking to be accommodated by this Tribunal, as he holds a federal licence.

10In the Interim Decision dated August 4, 2015, I expressed my view that the applicant had failed to establish any proper basis which entitles him to smoke medical marijuana during the course of the hearing, whether pursuant to federal law or his licence from Health Canada. I further stated that he had not provided any basis upon which it can be concluded that allowing him to take breaks during the hearing to smoke marijuana outside does not sufficiently accommodate his disability-related needs.

11As a result, I directed that the hearing to be held on October 22 and 23, 2015 would proceed on the basis that the applicant would not be permitted to smoke or vapourize marijuana in the hearing room or anywhere in the hearing centre, but that he would be allowed breaks as required in order to smoke marijuana outside as an accommodation for his disability.

12I further noted that, in his July 7, 2015 e-mail correspondence, in addition to insisting on his “right” to smoke marijuana during the hearing, the applicant stated that he would be pursuing legal action against the Tribunal and the parties involved if he is discriminated against, assaulted, threatened with arrest or intimidated.

13I stated that I was not prepared to wait until the first day of hearing for such a scenario to unfold. I indicated that, if the applicant wished to pursue some sort of legal action on the basis that the accommodation this Tribunal is willing to provide to him is somehow discriminatory against him or otherwise in violation of his rights, then the Interim Decision dated August 4, 2015 should provide him a sufficient basis to pursue any such action.

14I further stated that, alternatively, if the applicant wished to take the Tribunal up on its repeated offers to consider alternate forms of accommodation on the basis of further information or documentation provided by the applicant which do not involve the applicant smoking or vapourizing marijuana in the hearing room or in the Tribunal’s hearing centre, then he was required to do so by no later than August 31, 2015. I stated that, if the applicant failed to do so and if by that date he failed to confirm his willingness to attend the hearing on October 22 and 23, 2015 on the basis of the accommodation offered by the Tribunal, then the Tribunal would dismiss this Application as abandoned and/or due to an abuse of process.

15In the Interim Decision dated August 4, 2015, I made the following Order (only relevant parts reproduced):

a. . . .

b. By no later than August 31, 2015, the applicant shall either (i) provide further information or documentation to the Tribunal regarding alternate forms of accommodation for his disability-related needs which do not involve the applicant smoking or vapourizing marijuana in the hearing room or in the Tribunal’s hearing centre, or (ii) confirm his willingness to attend the hearing on October 22 and 23, 2015 on the basis of the accommodation offered by the Tribunal;

c. If the applicant fails to comply with point (b) above, the Tribunal will dismiss this Application as abandoned and/or due to an abuse of process;

16In response to the Interim Decision, the applicant sent e-mail correspondence dated September 1, 2015, in which he failed to comply with the terms of my Order. Instead, he took issue with the section of the Interim Decision which dismissed an incident raised in the Application that had occurred on August 14, 2012 for delay. In the September 1, 2015 e-mail, the applicant stated his intention to “appeal” my decision not to consider the two incidents raised in his Application as forming a “series of incidents” and to dismiss the first incident for delay. He requested information as to how to do this. The Tribunal responded by e-mail dated September 1, 2015 to indicate to the applicant that no “appeal” process exists at the Tribunal, but invited him to review the Tribunal’s Practice Direction on Reconsideration, which was attached. The applicant was advised that a reconsideration request could only be made from a Final Decision of the Tribunal.

17Rule 26.1 of the Tribunal’s Rules of Procedure states that a Reconsideration request is to be made within 30 days from the date of the decision. Rule 26.5.1 states that a Request for Reconsideration made more than 30 days after the date of the decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. This Rule is specifically referenced in the Practice Direction sent to the applicant.

18While it is not clear if the applicant intended to seek reconsideration of the Interim Decision released on August 4 at this stage of the proceeding, to date, the applicant has not filed any Request for Reconsideration.

19In his September 1, 2015 e-mail correspondence, the applicant also stated that he would like to take the Tribunal’s position regarding his request for accommodation to judicial review on the basis of federal paramountcy. To date, no Application for Judicial Review has been served by the applicant.

20Finally, in his September 1, 2015 e-mail correspondence, the applicant requested that the hearing dates currently scheduled for October 22 and 23, 2015 be postponed until decisions regarding the “appeal” (by which I understand the applicant to be referring to a reconsideration request) and the judicial review are received.

21I issued a Case Assessment Direction (“CAD”) dated September 14, 2015 to address the applicant’s September 1, 2015 correspondence. In the CAD, I stated that there was no basis to grant the adjournment sought by the applicant, as no reconsideration request had been filed by him and no judicial review application had been served. Accordingly, I denied the applicant’s adjournment request and stated that the hearing would continue to be scheduled to proceed on October 22 and 23, 2015.

22In this CAD, I also addressed the applicant’s non-compliance with my Order. I stated that, to date, the applicant had failed to provide any information or documentation to the Tribunal regarding alternate forms of accommodation for his disability-related needs which do not involve the applicant smoking or vapourizing marijuana in the hearing room or in the Tribunal’s hearing centre. I stated that he also had not provided any medical and/or other documentation to support why the accommodation offered to him by the Tribunal, namely allowing the applicant to take breaks from the hearing to smoke marijuana outside, would not adequately meet his disability-related needs, or to support why smoking or vapourizing marijuana in the hearing room or in the Tribunal’s hearing centre is the only possible accommodation that would meet his disability-related needs. Further, I noted that the applicant had not confirmed his willingness to attend the hearing on October 22 and 23, 2015 on the basis of the accommodation offered by the Tribunal.

23In the CAD, I referenced the Supreme Court of Canada’s decision in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970, which stands for the principle that the applicant has an obligation to assist and facilitate the search for accommodation and to take reasonable steps to assist in implementing any accommodation. I noted that the Court clearly stated that an applicant cannot expect a perfect solution, and that the duty to accommodate will be discharged if a proposal that would be reasonable in all the circumstances is turned down. I noted that, in the instant case, the applicant had failed to provide any medical or other documentation to indicate that this Tribunal’s accommodation proposal is not reasonable in all the circumstances. As a result, in the absence of any such documentation, I indicated that the Tribunal’s duty to accommodate had been discharged.

24In the CAD, and notwithstanding the applicant’s failure to comply with my Order, I offered the applicant one final opportunity to comply, failing which I stated that I would dismiss his Application as abandoned and/or as an abuse of process. I afforded the applicant until Friday, September 25, 2015 to comply with the Order made in my Interim Decision dated August 4, 2015.

25In the CAD, I made the following order:

a. The applicant’s request for an adjournment of the currently scheduled hearing dates is denied and the hearing will proceed as scheduled on October 22 and 23, 2015;

b. The applicant shall have one final opportunity to comply with part (b) of my Order dated August 4, 2015, which appears at para. 34 of the Interim Decision, by either (i) providing further information or documentation to the Tribunal regarding alternate forms of accommodation for his disability-related needs which do not involve the applicant smoking or vapourizing marijuana in the hearing room or in the Tribunal’s hearing centre, or (ii) confirming his willingness to attend the hearing on October 22 and 23, 2015 on the basis of the accommodation offered by the Tribunal; and

c. If the applicant fails to do so, the Application will be dismissed as abandoned and/or as an abuse of process.

26On September 25, 2015, the applicant sent e-mail correspondence to the Tribunal which states, in its entirety, “this e-mail is to confirm I will be attending October 22, 2015 HRTO hearing date”.

27On September 28, 2015, the Registrar sent a letter to the applicant clearly indicating that the applicant’s e-mail correspondence did not comply with my Order. The letter states that, in this Tribunal’s August 4, 2015 Interim Decision, the applicant was not just ordered to confirm his intention to attend the hearing on October 22 and 23, 2015. He was ordered to do so “on the basis of the accommodation offered by the Tribunal”, namely allowing the applicant to take breaks from the hearing to smoke marijuana outside and not smoking or vapourizing marijuana in the hearing room or in the Tribunal’s hearing centre.

28The Tribunal’s letter dated September 28, 2015 directed the applicant to fully comply with this Tribunal’s Order by confirming his intention to attend the hearing on October 22 and 23, 2015 on the basis of the accommodation offered by the Tribunal, namely allowing him to take breaks from the hearing to smoke marijuana outside and not smoking or vapourizing marijuana in the hearing room or in the Tribunal’s hearing centre.

29The Tribunal’s letter went on to state that, if the applicant failed to fully comply with the Tribunal’s Order by Friday, October 2, 2015, the Application would be dismissed as abandoned and/or as an abuse of process, and the currently scheduled hearing dates would be cancelled.

30It is now October 6, 2015, and no further communication has been received from the applicant.

31The only reasonable conclusion one can reach in these circumstances is that the applicant has no intention of complying with this Tribunal’s Order, or adhering to the accommodation this Tribunal has offered to him. I am not prepared to facilitate a situation where the applicant appears at the hearing on October 22, 2015 and insists on his “right” to smoke marijuana in the hearing room or in the Tribunal’s hearing centre, thereby exposing myself as the adjudicator, the other parties and witnesses to the proceeding and Tribunal staff to marijuana smoke and sidestream THC. In this regard, I note that the applicant has been afforded repeated opportunities by this Tribunal to provide medical or other documentation indicating why the accommodation offered by the Tribunal does not meet his actual disability-related needs, and has failed to do so.

32This Tribunal previously has dismissed an application where an applicant has clearly and intentionally defied a Tribunal Order: see Rocca v. Peel District School Board, 2009 HRTO 2036 and 2009 HRTO 2117. See also Ibrahim v. Hilton Toronto, 2011 HRTO 2312 at para. 12.

33In the circumstances of the instant case, I find that the applicant has clearly and intentionally defied a Tribunal Order and has no intention of complying with this Tribunal’s Order dated August 4, 2015, despite having been given every reasonable opportunity to do so.

34Pursuant to s. 23 of the Statutory Powers Procedure Act and Rule A8.1 of this Tribunal’s Rules of Procedure, I have the power to make such orders or give such directions in proceedings before this Tribunal as I consider proper to prevent abuse of this Tribunal’s processes.

35In the circumstances of this case and in view of the applicant’s repeated and deliberate failure to comply with my Order, I find that it would be an abuse of process to allow this Application to proceed.

ORDER

36For all of the foregoing reasons, this Application is dismissed as an abuse of process, and the hearing dates currently scheduled for October 22 and 23, 2015 are hereby cancelled.