HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Garnette Rose
Applicant
-and-
Toronto Police Services Board, William Blair,
Bruce Johnston and Larry Sinclair
Respondents
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Rose v. Toronto Police Services Board
1On June 10, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to employment because of his race, colour, place of origin, and ethnic origin. The Application is dismissed for the following reasons.
2The hearing of the merits of the Application commenced on January 15, 2013. The last two hearing days were on May 7, 2013 and June 3, 2013. On both of those days, I had to stop and adjourn the hearing because, when counsel for the Toronto Police Services Board (“TPSB”) was conducting his cross-examination of the applicant, the applicant exhibited behaviour that was discourteous and disrespectful, and, from the TPSB’s counsel’s perspective, threatening. It was obvious to me, particularly on June 3, 2013, that the applicant was either unwilling or unable to control his behaviour.
3Accordingly, on June 6, 2013 and November 1, 2013, I issued Case Assessment Directions, which included the following directions:
The applicant shall file a report from a psychiatrist, which addresses his behaviour, whether he is medically able to participate in the hearing in a manner which is courteous and respectful of the Tribunal and other participants, and whether he has any disability-related needs that need to be accommodated during the hearing, and, if so, what accommodations the psychiatrist believes are required.
The psychiatrist should be someone who is mutually acceptable to all the parties, or the applicant should be referred to two psychiatrists, one of whom is selected by the applicant and one of whom is selected by the respondents.
If the parties are able to agree upon a mutually-acceptable psychiatrist, the applicant shall bear the cost of seeing the psychiatrist and obtaining a report.
Given that the applicant’s counsel stated that the applicant currently has a limited ability to pay to see, and obtain a report from, a psychiatrist, I will not impose strict deadlines at this time.
4On October 10, 2014, the Tribunal convened a Conference Call to deal with the fact that the applicant had not yet filed a report from a psychiatrist. During the call, I understood from the parties that they had agreed upon a mutually-acceptable psychiatrist several months earlier.
5In their submissions, the respondents requested that the Tribunal provide a deadline for the applicant to file a report from the psychiatrist because they will be prejudiced if the hearing is delayed indefinitely. They also requested that the Application be dismissed as abandoned if the applicant failed to file a report by the deadline.
6On May 20, 2015, having not yet received a report from the psychiatrist and upon a further request from the respondents to provide a deadline for the applicant to file the report, the Tribunal issued a CAD with the following directions:
By no later than June 30, 2015, the applicant shall deliver to the respondents and file with the Tribunal a report from a psychiatrist.
By no later than July 14, 2015, the respondents shall deliver to each other and the applicant and file with the Tribunal written submissions which address (a) what steps the Tribunal should take as a result of the events during the hearing and the report of the psychiatrist, or (b) what steps the Tribunal should take as a result of the events during the hearing and the failure of the applicant to file the report of the psychiatrist.
By no later than July 28, 2015, the applicant shall deliver to the respondents and file with the Tribunal written submissions in response.
By no later than August 4, 2015, the respondents shall deliver to each other and the applicant and file with the Tribunal written submissions in reply.
7On June 29, 2015, the applicant filed a Request for an Order During Proceedings (“RFOP”), which requested an extension of time of 60 days for him to see a psychiatrist.
8The respondents filed Responses to the RFOP, which opposed the applicant’s request for an extension of time, and written submissions, which requested that the Application be dismissed because his conduct shows that he has abandoned the Application, his entire course of conduct constitutes an abuse of process, and it would be unfair and unjust to the respondents for the Application to continue.
9On July 24, 2015, the applicant sent the Tribunal an email, which stated that a tentative appointment had been scheduled with a psychiatrist for September 11, 2015.
10On August 11, 2015, the applicant sent the Tribunal a letter, which stated that because he is now living in the United States and in the process of obtaining residency, he would not be able to see the psychiatrist in Toronto until October 2015.
11On October 22, 2015, the applicant sent the Tribunal an email, which stated that he has an appointment with the psychiatrist on November 20, 2015.
12To date, the applicant has not filed a report from the psychiatrist, has not confirmed whether or not he saw the psychiatrist on November 20, 2015, and has not otherwise contacted the Tribunal.
13In the circumstances, the applicant is deemed to have abandoned the Application. More than two and a half years have passed since the last hearing date, and the applicant has not met either the Tribunal’s deadline to file a psychiatrist’s report or his own self-imposed deadlines to file the report. It seem obvious that he has other priorities in his life, specifically obtaining residency and living in the United States, which are more important to him than pursuing his human rights Application in Ontario.
14Furthermore, the Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See section 40 of the Code and Rule 1.1 of the Tribunal’s Rules of Procedure. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated at paras. 4-7:
Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.
When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.
Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.
The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.
15I have extended significant leeway to the applicant with respect to the time line to see a psychiatrist and file a report because his conduct at the hearing may have been disability-related, and he was, according to his counsel, impecunious. However, the applicant’s failure to file a psychiatrist’s report cannot continue indefinitely. The alleged incidents of discrimination occurred in 2010 and 2011, and, in my view, it has now reached the point where it is manifestly unfair to the respondents to have these allegations hanging over their heads for years with no end in the sight. In these circumstances, it would not be fair, just and expeditious to allow the Application to continue.
16The Application is dismissed.
Dated at Toronto, this 21st day of December, 2015.
“Signed by”
Ken Bhattacharjee
Vice-chair