Rosario v. Thunder Bay Police Services Board, 2015 HRTO 145

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: January 30, 2015

Citation: 2015 HRTO 145

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.

2The Tribunal’s records indicate that this Application has been the subject of eight Interim Decisions, six Case Assessment Directions and a Reconsideration Decision, addressing a host of issues that have arisen in this case. This (ninth) Interim Decision addresses still more procedural issues that have arisen in recent weeks.

no Reasonable Apprehension of Bias

3The applicant has requested that I be removed as the adjudicator assigned to hear and decide this Application on several occasions. In a letter to the Tribunal dated January 16, 2015, the applicant submitted that an Interim Decision I rendered the previous day (2015 HRTO 60) in which I found the applicant to have breached Rule 3.3 of the Tribunal’s Rules of Procedure for a second time gave reason for my removal. The applicant submitted that I made this ruling arbitrarily, i.e., without factual foundation, and this gave him “reasons (sic) to believe that he is unfit to deal with my application and I am in fear of become (sic) a victim of corrupt Tribunal proceedings”. In letter to the Tribunal dated January 18, 2015, the applicant submitted that one of the witnesses identified by the respondent is a native woman and “Douglas Sanderson is also a native who graduated from Lakehead University in Thunder Bay”. The applicant further submitted that the respondent is “using this native women (sic) to influence the decision making of Douglas Sanderson who has shown bias against me in his Interim decision dated January 15, 2015”. On January 22, 2015, the applicant filed a Request for an Order During Proceeding dealing primarily with his objections to two witnesses identified by the respondent (see below), and making further submissions regarding the respondent’s position that the applicant has again breached Rule 3.3. (see below also). The applicant also repeated his request to have me removed as the adjudicator assigned to this Application. The applicant submitted that I have acted recklessly in making orders without justification and that I am “very well known to the community of Thunder Bay, he graduated in arts at the Lakehead University in Thunder Bay. These (sic) is a conflict of interest and that is why he made bias (sic) decision in favour of the Respondent”.

4On January 21, 2015, the respondent filed a Response to a Request for an Order in which it responded to several issues raised by the applicant, including the request to have this writer removed from this Application. The respondent submitted that there is no valid reason to remove me and that removal of an adjudicator at this stage of the proceedings would cause undue delay.

5On January 27, 2015, the applicant filed another Request for an Order During Proceeding seeking my removal from this Application. The applicant repeated his assertion that the Interim Decision in question, 2015 HRTO 60, was rendered in reckless manner. The applicant also submitted that the respondent has made the Tribunal aware of the applicant’s YouTube videos “regarding misconduct of Vice Chair Douglas Sanderson”. The applicant submitted that this disclosure causes a conflict of interest as well. The respondent has not yet responded to this request, but as it is clearly without merit, for the reasons described below, a response from the respondent is not necessary.

Analysis and Decision

6The applicant’s request to remove me as the adjudicator assigned to this Application is one of apprehension of bias. Pursuant to the Tribunal’s Code of Conduct, determinations on issues of conflict or bias are for the member to make. Accordingly, it is appropriate for me to decide this issue.

7The Supreme Court of Canada enunciated the principles to be applied in considering apprehension of bias in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394 as follows:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

8Tribunal adjudicators routinely make preliminary rulings regarding cases they have been assigned to adjudicate. The Tribunal has ruled on several occasions that making preliminary rulings or engaging in case management does not create a reasonable apprehension of bias. See Group of Employees v. Presteve Foods, 2012 HRTO 1365, Rosenberg v. Ombudsman Ontario, 2012 HRTO 676 , Mayta v. Canada Lands, 2009 HRTO 1613, and Noronha v. 1174364 Ontario, 2009 HRTO 1292. Accordingly, the fact that I rendered an Interim Decision that was not favourable to the applicant does not amount to a reasonable apprehension of bias. As is noted in the Interim Decision in question, the applicant did not deny the actions attributed to him and made various arguments about why he was not bound to follow Rule 3.3. Consequently, the applicant’s submission that the Interim Decision was arbitrary is in any event without factual foundation.

9The applicant is correct that I graduated from Lakehead University in Thunder Bay, which is in fact my hometown. I have not resided in Thunder Bay since graduating from Lakehead University in 1992, however, and the applicant provides no foundation for his bare assertion that I am well known in the Thunder Bay community. I am not, however, “native”, i.e., a person of First Nations ancestry. In that regard, it would appear the applicant has confused me with another person named Douglas Sanderson. The applicant’s submissions are therefore largely inaccurate, but in my view the fact that an adjudicator may be known in a community or be of the same ancestry as a potential witness is not, without more, a proper basis for finding a reasonable apprehension of bias. In my view, an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that there was no reasonable apprehension of bias.

10The respondent has brought to the attention of the Tribunal several YouTube videos the applicant has posted on the Internet in the context of a request to dismiss the Application as an abuse of process (see below). Some of these videos discuss the Interim Decisions I have rendered in this matter and the applicant describes me in unflattering terms.. Whether the applicant’s actions amount to an abuse of process is yet to be determined, but in my view it would be a perverse result if a party to an Application could in effect manufacture a reasonable apprehension of bias through his or her own actions. If this were possible, any party could have an adjudicator who is perceived to be unfavourable removed by making unflattering comments about them in public, which the Internet readily facilitates. The Tribunal Code of Conduct defines a conflict of interest as follows: “A conflict of interest is any interest, relationship, association or activity that is incompatible with the member's obligations to the Tribunal.” I have no interest, association and have engaged in no activity that is incompatible with me continuing to adjudicate this Application. In my view, the applicant’s public comments about me do not create a conflict of interest or support a finding of a reasonable apprehension of bias.

No adjournment to pursue Civil Claim

11In a letter to the Tribunal dated January 15, 2015, the applicant requested “for leave of my application in pursuant of HRTO code 46.1”. The applicant explained that he wishes to proceed with this matter in civil proceeding, since most of his complaints against the respondent fall outside the Tribunal’s jurisdiction. In another letter dated January 15, 2015, the applicant requested adjournment of these proceeding (currently scheduled for hearing on February 26 and 27, 2015) to allow him to raise his concerns about Rule 3.3 in a court of constitutional jurisdiction.

12In its Response to a Request for an Order of January 21, 2015, the respondent submitted that the Tribunal should dismiss this Application with prejudice should the applicant proceed with a civil proceeding. The respondent submitted that the Application has been ongoing since 2012 and it wishes to have this matter come to a close. The respondent also opposed the request to allow the applicant to bring his concerns regarding Rule 3.3 before a court of constitutional jurisdiction. The respondent submitted that Rule 3.3 is valid and will be upheld and submitted that the Application should be dismissed with prejudice if the Tribunal allows the applicant to pursue such a cause of action.

Analysis and Decision

13The applicant does not require the Tribunal’s “leave” or permission to pursue the civil claims he states he intends to pursue. However, the applicant should be aware that the Tribunal will immediately lose jurisdiction to deal with this Application if he commences a civil action based on the same facts as this Application and seeks a remedy pursuant to section 46.1 of the Code. This loss of jurisdiction would be the result of section 34(11) of the Code, which imposes a mandatory bar against proceedings before this Tribunal where an applicant has made a civil claim for remedies based upon the same alleged infringement of the Code. Section 34(11) states as follows:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

[Emphasis added]

14Section 46.1 reads as follows:

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the Court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

15The Tribunal has found that section 34(11) applies whether the civil action was commenced before or after an application to the Tribunal. See Grogan v. Toronto District School Board, 2011 HRTO 954 and Borden v. Toronto Grace Health Centre, 2010 HRTO 1109.

16The applicant is similarly entitled to challenge the validity of Rule 3.3 in court, if he wishes. Awaiting the completion of such proceedings would further delay the hearing of this Application, which has already been met with significant delay. Moreover, the outcome of such litigation, if it is ever commenced, would have no bearing on the merits of this Application. In my view, the applicant’s proposed challenge to Rule 3.3 is not a proper basis for adjourning these proceedings.

Respondent’s Proposed Witnesses

17This Application concerns the applicant’s interactions with officers of the Thunder Bay Police Service on three occasions: March 27, 2012, April 14, 2012 and July 16, 2012. On the first two occasions, the applicant was placed under arrest and incarcerated. The respondent has filed transcripts of the criminal trial in which the applicant pleaded guilty to two criminal offences. The Tribunal has no jurisdiction to review the Court’s findings and the Tribunal and the parties are bound by the findings of fact made by the Court. Re-litigation of the matters before the Court would amount to an abuse of process. See Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63.

18The issue before this Tribunal with respect to the applicant’s arrest and incarceration on March 27, 2012 and on April 14, 2013 is not the nature of the applicant’s actions that led to his arrest on those dates. Rather, the issue is whether the respondent’s personnel failed to accommodate the applicant by denying him access to his medication when he was incarcerated, as is alleged. Consequently, the events leading to the applicant’s arrest on March 27, 2012 and April 14, 2013 are of limited relevance to the issues the Tribunal must determine. What happened during the criminal trial has no apparent relevance to the issues before the Tribunal.

19The respondent, as it was required to do, has identified six witnesses it intends to present at the hearing and provided a witness statement summarizing the expected evidence for all but one of these witnesses. The respondent states that two of the proposed witnesses, Carty Hugette and Jennifer Meshake, will give evidence regarding the events leading to the applicant’s arrest on April 14, 2012. The respondent states that it may present Ms. Meshake to testify about the incident involving her and the applicant that led to his arrest and that Ms. Hugette will give evidence about the assistance she provided to Ms. Meshake after that incident.

20In a letter dated January 18, 2015 and in a Request for an Order During Proceeding filed on January 22, 2015 the applicant stated his opposition to the testimony of Ms. Hugette and Ms. Meshake. In the letter of January 18, 2015, the applicant submitted that Ms. Meshake’s evidence would not justify the respondent’s actions towards him. In the Request of January 22, 2015, the applicant submitted that the respondent did not provide witness statements for these two witnesses and that neither of them was present when the alleged violations of the applicant’s Code rights occurred.

21On the direction of the Tribunal, the respondent filed a detailed response to the applicant’s objections to the expected evidence of its witnesses. The respondent’s submissions can be summarized as follows:

a. The applicant has not provided a witness list, a witness statement or the documents he intends to rely upon; therefore, it is difficult to particularize the evidence that may be needed from Ms. Meshake;

b. Ms. Meshake has relevant evidence regarding the issues arising in this matter;

c. The applicant is aware of Ms. Meshake’s possible testimony because it was recorded in the police officer’s notes, which were disclosed to the applicant in this proceeding as documents upon which the respondent intends to rely and in the criminal proceeding. Ms. Meshake’s testimony in the criminal trial is also set out in the transcripts of that proceeding, which the respondent has disclosed;

d. The applicant remains angry that he was arrested and may attempt to present evidence calling the arrests and criminal proceedings into question. The respondent must be prepared for an effort by the applicant to re-litigate the criminal trial;

e. The applicant’s anger about the arrest on April 14, 2012 is a very live issue on cross-examination with respect to the applicant’s credibility; and,

f. The respondent has not undertaken to call Ms. Meshake, but may call her depending on how the hearing proceeds. The respondent submits that the events leading to the applicant’s arrest will be directly in issue at the hearing and it would be unfair if the respondent may not consider this person as a witness.

Analysis and Decision

22The respondent is obliged, pursuant to Rule 17.2, to provide a witness statement for any potential witness it identifies. This obligation is not contingent on the applicant’s compliance with his pre-hearing disclosure obligations and it is no answer to state that the content of Ms. Meshake’s expected evidence is contained in another document provided to the applicant, but not identified as her expected evidence. In any event the Tribunal’s records reveal that the applicant filed the documents he intends to rely upon, including a statement of his expected evidence on December 23, 2014. The applicant filed a Statement of Delivery indicating that he sent these documents to respondent’s counsel by registered mail on December 23, 2014.

23More fundamentally, Ms. Meshake’s testimony regarding the incident of April 14, 2012 was accepted as fact by the Court. The Tribunal and the parties are bound by that finding and re-litigation of this issue, or any other issue decided by the Court, would be an abuse of process. Contrary to the respondent’s submission, the events leading to the applicant’s arrest are not in issue before this Tribunal. Accordingly, Ms. Meshake’s evidence is neither necessary nor appropriate. However the applicant may feel about his arrest and subsequent convictions (after pleading guilty), he may not challenge the facts regarding the incident leading to his arrest on April 14, 2012 in this proceeding. For the same reason, testimony from the police officers involved about the incident involving Ms. Meshake and the applicant that led to the applicant’s arrest is also unnecessary.

24The respondent did not address the applicant’s objections to Ms. Hugette’s evidence. The respondent did, in fact, provide a brief witness statement regarding the expected evidence of Ms. Hugette, as described above. On the basis of that statement, however, it would appear that Ms. Hugette has no relevant evidence to give regarding the issues before this Tribunal.

Abuse of Process

25On January 16, 2015 the respondent filed a Request for an Order During Proceeding seeking dismissal of the Application as an abuse of process as a result of certain actions taken by the applicant. The applicant filed a Response to a Request for an Order on January 19, 2015 opposing the request to dismiss. Section 43(2) of the Code provides as follows:

The rules shall ensure that the following requirements are met with respect to any proceeding before the Tribunal:

1. An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.

26This Application is clearly within the jurisdiction of the Tribunal and the disposition of the respondent’s request may result in the dismissal of the Application. Consequently, the applicant must be afforded an opportunity to make oral submissions regarding the request to dismiss before the Tribunal renders a decision on it. The applicant shall therefore indicate whether he wishes to make oral submissions regarding the respondent’s request to dismiss within seven days of this Interim Decision.

Order

27The Tribunal orders as follows:

1. The applicant’s request to remove me as the adjudicator for this Application is dismissed;

2. The applicant’s request to adjourn the hearing of this matter is dismissed;

3. Neither Carty Hugette nor Jennifer Meshake shall testify at the hearing of this matter;

4. Within 7 days of the date of this Interim Decsion, the applicant shall inform the Tribunal whether he wishes an opportunity to make oral submissions regarding the respondent’s request to dismiss the Application as an abuse of process;

5. If the applicant indicates that he wishes to make oral submissions regarding the request to dismiss, then the Tribunal shall give the parties directions about the date, time and format for oral submissions; and,

6. If the applicant does not wish to make oral submissions or does not communicate with the Tribunal regarding whether he wishes to make oral submissions in the time specified, then the Tribunal shall dispose of the request to dismiss based on the material before it.