Surh v. Toronto Police Services Board, 2015 HRTO 1410

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Doug Surh

Applicant

-and-

Toronto Police Services Board and Bradley Verspeeten

Respondents

A N D B E T W E E N:

Doug Surh

Applicant

-and-

Toronto Police Services Board

Respondent

A N D B E T W E E N:

Doug Surh

Applicant

-and-

Toronto Police Services Board

Respondent

DECISION

Adjudicator: Naomi Overend Date: October 22, 2015 Citation: 2015 HRTO 1410 Indexed as: Surh v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Doug Surh, Applicant Self-represented

Toronto Police Services Board (2010-04964-I), Respondent Antonella Ceddia, Counsel

Toronto Police Services Board (2010-06416-I), Respondents David A. Gourlay, Counsel

Toronto Police Services Board (2010-07698-I) and Bradley Verspeeten (2010-04964-I), Respondents Lisa C. Cabel and Naomi Calla, Counsel

Introduction

1This Decision addresses the respondents’ request that these consolidated Applications be dismissed on the basis of abuse of process. The applicant filed these three Applications between February and December 2010, alleging discrimination in services on the basis of race, colour, ethnic origin, reprisal and sex, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

Decision and analysis

2This case has a protracted procedural history which has resulted in considerable delays in scheduling a hearing on the merits. Notably, it took from 2012 to 2014 to address the issue of whether these consolidated Applications should be dismissed on the basis of no reasonable prospect of success and (in one instance) delay. Although much of the reason for this delay was administrative errors, part of the reason for the delay in processing these files was the applicant’s refusal to participate in a teleconference hearing and his insistence on proceeding in writing only for the adjudication of the summary hearing issues.

3This was not the first summary hearing the applicant had refused to participate in by way of a teleconference hearing. On a separate Application, the Tribunal directed the applicant to provide dates on which he was available to provide his oral submissions (despite his stated preference for written submissions only). Ultimately, that Application was dismissed as abandoned, when the applicant refused to comply with the direction of the Tribunal and stopped communicating with the Tribunal. A more detailed description of the events giving rise to this dismissal is found in the Tribunal’s Decision, Surh v. Scarborough Town Centre Holdings Inc., 2013 HRTO 1645.

4Given this background, the Tribunal was concerned that the applicant would not attend an in-person hearing on the merits which the Tribunal ordered be held after refusing to dismiss the applications for delay and no reasonable prospect of success. For this reason, the applicant was directed in an Interim Decision, 2014 HRTO 261, to indicate whether he would attend an in-person hearing. The applicant did respond to this, albeit one day after the deadline set by the Tribunal, saying he would participate. Shortly thereafter, he requested a publication ban and that “all persons who know of complaint banned from communicating with all others.” The respondents opposed this on the basis that the request was unclear and, in any event, unsupported by any evidence of harm.

Recent Procedural History

5The Tribunal had sent out a Notice of Hearing on March 4, 2015, scheduling the hearing for September 1, 2015. One of the respondent’s counsel wrote in shortly after the Notice went out to advise that she was not available that date and asking that the hearing be rescheduled. The request was granted as it was made within two weeks of the Notice, in conformity with the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments.

6Since that time, the Tribunal’s scheduling unit has been attempting to reschedule the hearing, without success. It is clear from the correspondence on file that the three counsel for the respondents have been fully cooperative with the scheduling process, but that the applicant has failed to cooperate, instead insisting that the Tribunal deal with a myriad of procedural requests to his satisfaction before he provides dates.

7On March 9, 2015, the applicant filed a Request for an Order During Proceeding (and a duplicate of the identical document on March 17, 2015). In response, the Tribunal issued an Interim Decision, 2015 HRTO 493, on April 20, 2015, in which it addressed the procedural issues raised by the applicant.

8One of these issues was the applicant’s assertion that he could not participate in a hearing as he had been banned from downtown Toronto by the police. He was ordered to confirm his willingness to proceed to a hearing within two weeks of the receipt of respondent counsel’s confirmation that he was not banned from attending a hearing in downtown Toronto.

9Despite the fact that counsel confirmed on April 21, 2015 that the applicant was not banned from downtown Toronto, the applicant did not confirm his willingness to proceed, as directed. On May 6, 2015, counsel for the respondents wrote to ask that these matters be dismissed as abandoned. The applicant responded by filing a May 7, 2015 Request for an Order During Proceedings. In this document he states, somewhat cryptically:

Applicant still requires the complaint to remain open a deferment does not mean applicant wants Application dismissed. Applicant intends to be available for a hearing.

10On May 15, 2015, the Tribunal issued a Case Assessment Direction attempting to address some of the applicant’s concerns (many of which are difficult or impossible to discern). With respect to the issue of scheduling, it advised the parties of the following:

The Registrar will be scheduling a one-day hearing. If the applicant does not cooperate with this scheduling process, the Tribunal may dismiss these Applications as abandoned.

11On May 19, 2015, the Tribunal sent an email to the parties asking them to provide mutually agreeable dates. The applicant responded to this request that day, but failed to copy the respondents on his email and was advised that the Tribunal could not consider it until such time as it had confirmation that the respondents were copied. On May 28, 2015, he wrote a further email to the scheduler: “Information as sent to others, may 19, 15.”

12It is not altogether clear whether the applicant, in fact, copied the respondents on his May 19, 2015 email. He appears to have sent them (and the Tribunal) a Request for Reconsideration (Form 20) on that date. He does not specify what Decision or order of the Tribunal on which he is requesting reconsideration.

13The Assistant Registrar wrote to the applicant on May 29, 2015 to advise him that his Request for Reconsideration does not stay directions issued by the Tribunal and warning him to provide his availability in response to the Tribunal’s May 19, 2015 email. The applicant responded as follows on June 8, 2015:

applicant has not received the respondents, notes, correspondence etc. requested in application. The hrto should not be scheduling hearing now.

14The Assistant Registrar wrote to the applicant that same day and advised him that documents are not due until the deadlines set out in the Notice of Hearing. The applicant wrote a further email in response on June 20, 2015 saying that documents were supposed to be submitted by the respondents in March 2015.

15Deadlines were, in fact, set out in the March 4, 2015 Notice of Hearing, but were set aside when the Tribunal received its timely rescheduling request. The parties are not subject to disclosure deadlines until such time as the Tribunal is able to send out a Notice of Rescheduled Hearing.

16It would appear from his correspondence that the applicant believes that because he submitted his documents (which appear to largely consist of media articles about the police) that the respondents should likewise be required to submit their documents before he agrees to any dates. In any event, the Tribunal communicated the above to the applicant in Interim Decision, 2015 HRTO 1005, dated July 28, 2015.

17In that Interim Decision, I stated the following:

The Tribunal’s process has been disrupted by the applicant’s insistence that he will not provide dates and, therefore, some measure of assurance that he will participate in the hearing process, until his many demands are met. The respondents, understandably, are very frustrated with this and have asked the Tribunal to dismiss the three Applications on the basis that they have been abandoned or that to proceed would be an abuse of process.

Given that the applicant is participating in the process, albeit not in the prescribed manner, it is not appropriate to dismiss his Applications as abandoned. However, the Tribunal has the authority to control its processes, including, if necessary, dismissing applications in which the applicant has failed to abide by the directions and orders issued by the Tribunal.

The Tribunal cannot dismiss an application within its jurisdiction on the basis of abuse of process without first giving the applicant the opportunity to make oral submissions. Accordingly, the applicant is directed to advise the Tribunal of whether he wishes to make oral submissions on abuse of process by August 20, 2015. If he chooses to proceed by way of written submissions, he must submit them by August 27, 2015.

If the applicant does not indicate that he wishes to proceed by way of oral submissions by August 20, 2015, or file written submissions by August 27, 2015, the Tribunal will make a decision in the absence of submissions from the applicant. In the event that the applicant fails to advise the Tribunal or make written submissions in accordance with the above deadlines, the Tribunal will advise the respondents whether it requires them to file written submissions.

18On July 30, 2015, the applicant sent an email requesting hearing dates for the week of “dec. 20 2015.” The Registrar wrote back to him to advise that the Tribunal is closed that week and directing him to provide alternative hearing dates by August 17, 2015, failing which the Tribunal would re-schedule the hearing on its own initiative.

19On August 19, 2015 (i.e., two days after the August 17, 2015 deadline), the applicant sent an email to the Tribunal with the following message:

Applicant – d.surh – schedule hearing dates:

After july2,2016 – august.2016

20On August 20, 2015, the Tribunal’s Registrar wrote to the applicant saying that the respondents had (much earlier) provided the dates on which they were available in late November 2015. He was directed to provide his availability with respect to these dates.

21In fact, these scheduling requests were superseded by the Interim Decision, which required submissions on abuse of process rather than the applicant’s hearing availability. The Registrar sent a follow-up email referencing the above Interim Decision and directing the applicant to provide his written submissions on abuse of process by August 27, 2015.

22After close of business on August 27, 2015, the applicant filed his submissions, which largely consist of a litany of the issues he raised (and which the Tribunal addressed) earlier. His factual submissions point out why the Tribunal is wrong and/or indifferent to his wellbeing, although they also contain a summary on the applicant’s position on the law.

23In a final Case Assessment Direction, dated September 18, 2015, I advised the parties that the Tribunal will put the abuse of process request made by the respondents in abeyance, if the applicant cooperates with the scheduling process. In that CAD, I directed the applicant to do the following by September 24, 2015:

1. Provide the Tribunal with all dates (Monday-Friday, excluding any statutory holidays) in the months of February and March 2016 [the months in which the Tribunal was now scheduling] on which he is available for a hearing;

2. If he is not available on certain dates in those two months, provide an explanation for why he is not available to attend a hearing;

3. Provide an assurance to the Tribunal that he is prepared to attend the hearing on the dates he advises he is available.

24The applicant did not comply with this direction. Instead on September 25, 2015 (after hours, and one day after the deadline), the applicant sent an email with the following message:

to; hrto

Applicant requests date for after July 3, 2016, applicant should not have to provide reason.

Why does the respondent not have to provide any reason, when they canceled date. March 18, 2016, if legal rep. can attend.

applicant.

25The respondents filed joint submissions in response to this asking the Tribunal to address the abuse of process issue.

The Law

26Rule 1.7(g) provides the Tribunal with the power to determine the order in which issues in a proceeding will be considered and determined. The abuse of process issue was held in abeyance to allow the applicant one last chance to participate in the Tribunal’s process and comply with the Tribunal’s orders. His most recent communication makes it clear that he has no intention of doing either and I therefore agree with the respondents that their request to dismiss for abuse of process should be revived and considered at this time.

27The Tribunal has the power, pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process. Where appropriate, the Tribunal has applied this power to dismiss Applications where parties have engaged in abusive conduct in the Tribunal’s process. See for example Nouraghighi v. Toronto Catholic District School Board, 2009 HRTO 2085; Vizcaya v. University of Toronto, 2010 HRTO 916; and Conway v. St. Joseph’s Healthcare Hamilton, 2015 HRTO 1232.

28Rule A7.1 of the Social Justice Tribunals Ontario Common Rules, found in Part 1 of the Human Rights Tribunal of Ontario’s Rules of Procedure confirms basic obligations of the parties in terms of their conduct in proceedings before the Tribunal:

All persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.

29The authority to make such orders as it considers appropriate to prevent an abuse of process is also reflected in the Tribunal’s Rules of Procedure:

A8 ABUSE OF PROCESS

A8.1 The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

30The Tribunal has dismissed Applications as an abuse of its process where the applicant has refused to comply with directions issued by it, including directions to undergo cross-examination, disclose arguably relevant documents, provide an undertaking concerning conduct at the hearing and not publish information about individual respondents. See E.E. v. Conseil des écoles catholiques de langue française du Centre-Est, 2011 HRTO 2132; Felix v. Shoppers Drug Mart, 2011 HRTO 89; Briggs v. Niagara Falls (City), 2010 HRTO 2244; and Nourhaghighi, supra.

31In an analogous situation to the one at issue here, the Tribunal dismissed the Application as abandoned when the applicant refused to cooperate in the scheduling of a summary hearing. See Eisenberg v. Seneca College of Applied Arts and Technology, 2012 HRTO 319. On judicial review, the Divisional Court held that:

Given the reaction of the applicant to the Tribunal’s decision to hold such a hearing and his refusal to co-operate in its scheduling, we are of the view that the Tribunal acted reasonably in dismissing his complaint. Indeed, we do not see that the Tribunal had any realistic alternative but to do so. The Tribunal was entitled to hold a summary hearing. The Tribunal was also entitled to postpone any ruling on the applicant’s request for documents until the summary hearing was held. The applicant’s unilateral refusal to provide dates for the summary hearing effectively thwarted the Tribunal’s process. If the applicant was not prepared to co-operate with the Tribunal in its process, the Tribunal was entirely within its rights to dismiss the applicant’s complaint.

Eisenberg v. Seneca College of Applied Arts and Technology, 2012 ONSC 4802 at para.13

32As noted in previous cases, the Tribunal is mandated to act in a fair, just and expeditious manner. The applicant’s conduct in this case – namely, insisting that he will only proceed when certain self-imposed conditions are met and on dates selected by him – has severely impaired the ability of the Tribunal to meet this mandate. To allow the applicant to continue with his Applications, in light of his most recent refusal to comply with a clear direction of the Tribunal to provide his available dates and an explanation for why he is not available on the remaining dates, would constitute an abuse of the Tribunal’s process. This is particularly the case here given that he was provided with an additional opportunity to participate after the issue of abuse of process was raised.

ORDER

33Accordingly, Applications 2010-04964-I, 2010-06416-I and 2010-07698-I are dismissed.