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 15, 2015 Citation: 2015 HRTO 60 Indexed as: Rosario v. Thunder Bay Police Services Board
APPEARANCES
Allen Rosario, Applicant Self-represented
Thunder Bay Police Services Board, Respondent Holly Walbourne, Counsel
1In an earlier Interim Decision in this matter, Rosario v. Thunder Bay Police Services Board, 2015 HRTO 36, dated January 12, 2015, I found that the applicant was in breach of Rule 3.3 of the Tribunal’s Rules of Procedure (the “Rules”) because he disclosed to third parties documents he received from the respondent pursuant to the Rules. The Tribunal delivered this Interim Decision by electronic mail at 10:35 a.m. on January 12, 2015. I also found that the applicant’s conduct amounts to an abuse of the Tribunal’s processes and warned the applicant that further abuses of process may result in sanctions, up to and including dismissal of the Application, and made the following order:
The applicant shall comply with Rule 3.3 and shall not disclose any document that the respondent disclosed to him in the course of this proceeding to any third party; and,
The respondent shall immediately comply with its obligation to file and deliver the documents upon which it intends to rely, its list of intended witness and witness statements.
2On January 13, 2015, the respondent filed another Request for an Order During Proceedings, again requesting that sanctions be taken against the applicant for publishing additional disclosure (a video) on the internet, i.e., on YouTube and the applicant’s Google drive; and sending it to the Mayor of Thunder Bay, a city councillor and other members of the public. The respondent submitted that this conduct is in violation of Rule 3.3. The respondent acknowledged that these violations, occurring between January 9, 2015 and January 11, 2015, occurred before the Tribunal’s Interim Decision on January 12, 2015, but submitted that they occurred after the respondent put the applicant on notice that he was violating the Rules. In any event, the respondent submitted that the video was viewable as of 1:00 p.m. on January 12, 2015. The respondent submitted that the Tribunal should order the applicant to sign an undertaking not to violate Rule 3.3 before any further documentation or video evidence is provided to him.
3The applicant filed a Response to a Request for an Order on January 13, 2015, and does not deny posting the video on the Internet. The applicant submitted that he is not obliged to abide by the respondent’s request. The applicant submitted that he would abide by any order of the Tribunal and submitted that he has complied with the order of January 12, 2015. The applicant noted that he stated his intent to comply with the Tribunal’s order of January 12, 2015 in a letter to the Tribunal sent by e-mail on that date, after receiving the Interim Decision.
4Nonetheless, the applicant submitted that his Application against the respondent outweighs the violation of Rule 3.3 and that his Application is in the public interest in light of the subject matter involved. The applicant also submitted that he previously received the video in question as part of the Crown disclosure in criminal proceedings, which he lost after he was incarcerated. The applicant also submitted that Rule 3.3 violates section 2 and section 52(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Charter”). The applicant submitted that Rule 3.3 is overruled by the Constitution of Canada and he is entitled to distribute any documents he has received in the course of these proceedings. Notwithstanding his position that Rule 3.3 is unconstitutional, the applicant submitted that he continues “to put myself under the Order” rendered by the Tribunal on January 12, 2015, by which I take him to mean that he will obey that order.
5The applicant submitted that the documents he obtained in the course of these proceedings are on public record and that the public has a right to be informed of the respondent’s alleged misconduct. The applicant submitted that the respondent’s allegations that “[A]llegations made by the Respondent in Schedule “A” has no factual finding that documents are still shared with the public over the internet”. This submission is not particularly clear, but it appears that the applicant is indicating that the materials he posted on the internet in breach of Rule 3.3 have been removed and can no longer be viewed by the public.
6Finally, the applicant submitted that the respondent has not complied with the Tribunal’s order to immediately file and deliver the documents upon which it intends to rely, its list of intended witness and witness statements.
Analysis and Decision
7As noted, the applicant does not deny posting the video in question. The applicant received this video pursuant to the respondent’s pre-hearing disclosure obligations in this proceeding. Whether he previously received these materials as disclosure in a criminal proceeding is immaterial, and Crown disclosure is in any event subject to an undertaking not to disclose the disclosed documents. Consequently, I find that the applicant has, again, violated Rule 3.3 and committed an abuse of the Tribunal’s processes.
8The applicant challenges the constitutional validity of Rule 3.3, but has not followed the proper process for doing so, as set out in Rule 4.1, which states as follows:
Where a party intends to question the constitutional validity or applicability of any law, regulation, by-law or rule or where a party claims a remedy under s. 24(1) of the Charter of Rights and Freedoms, in relation to an act or omission of the Government of Canada or the Government of Ontario, a Notice of Constitutional Question must be delivered to the Attorneys General of Canada and Ontario and all other parties and filed with the Tribunal as soon as the circumstances requiring the notice become known and, in any event, at least 15 days before the question is to be argued.
Accordingly, the question of the constitutional validity of Rule 3.3 is not properly before me and I need not address it on that basis. However, I note that the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), confers broad powers upon the Tribunal to control its processes and make Rules governing proceedings before it. For example sections 39, 40 and 43(1) of the Code state as follows:
The Tribunal has the jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any application before it.
The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.
43.(1) The Tribunal may make rules governing the practice and procedure before it.
9Rule 3.3 is essentially a codification of the implied undertaking rule in civil litigation. In Juman v. Doucette, 2008 SCC 8, the Supreme Court of Canada explained that the implied undertaking rule is necessary because pre-hearing discovery rules amounts to an invasion of privacy of litigants who are compelled to disclose all relevant information, including evidence that may be embarrassing or incriminating. The public interest in determining the truth in the civil proceeding outweighs litigants’ privacy interests, but this invasion of privacy should be limited to the level of disclosure necessary to satisfy the purpose of the legal proceeding and that purpose alone. Accordingly, it is in my view beyond question that Rule 3.3 is an entirely valid and necessary rule.
10The Rules facilitate the fair, just and expeditious disposition of applications before this Tribunal. All parties to proceedings before the Tribunal are obliged to comply with the Rules and, in my view, have an obligation to familiarize themselves with them. The respondent made the applicant aware of Rule 3.3, of which he was flagrantly – quite possibly intentionally – in breach. Rather than comply with the rule, the applicant took the position that he was entitled to continue in his improper disclosure of documents until the Tribunal ordered him to stop. This position is entirely without merit. The Rules apply at all times and should not require the Tribunal’s intervention to ensure compliance. Whether this Application raises issues in which the public may have an interest does not entitle the applicant to ignore the Tribunal’s Rules.
11It appears the respondent did not comply with the Tribunal’s order to immediately comply with its obligation to file and deliver the documents upon which it intends to rely, its list of intended witnesses and witness statements because of the applicant’s continued violation of Rule 3.3, prior to receipt of the Interim Decision of January 12, 2015. However, the Tribunal has received the respondent’s documents upon which it intends to rely, its witness list and witness statements and it appears that the applicant is in receipt of same.
Order
12I note that this is the second decision the Tribunal has rendered on the issue of Rule 3.3. This represents an inordinate misuse of the Tribunal’s limited resources, which was entirely avoidable had the applicant simply complied with the clear requirements of the Rule. In the circumstances, I find it necessary to make the following order:
The applicant shall comply with Rule 3.3 and shall not disclose any document that the respondent disclosed to him in the course of this proceeding to any third party;
The applicant shall immediately remove from the Internet any material he received in the course of this proceeding; and,
If the applicant fails to comply with the orders set out in paragraph 12(1) and 12(2) or commits any other abuse of the Tribunal’s processes, then the Tribunal shall seek submissions from the parties regarding whether the Application should be dismissed as an abuse of process.
Dated at Toronto, this 15th day of January, 2015.
“Signed by”
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Douglas Sanderson Vice-chair