Velegjanin v. Toronto Police Services Board, 2015 HRTO 899

Human Rights Tribunal of Ontario

BETWEEN:

Nikolai Velegjanin Applicant

-and-

Toronto Police Services Board Respondent

INTERIM DECISION

Adjudicator: Sheri Price Date: July 7, 2015 Citation: 2015 HRTO 899 Indexed as: Velegjanin v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Nikolai Velegjanin, Applicant Bakhtier Shakhnazarov, Paralegal

Toronto Police Services Board, Respondent Brennaugh Smith, Counsel

1This Application alleges that the respondent discriminated against the applicant in the provision of policing services because of the applicant’s ethnic origin, disability, creed, and sex, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, the applicant alleges that police officers discriminated against him in the manner they allegedly treated him when they arrested him on April 28, 2012, following a 911 call from another resident in the applicant’s apartment building.

2The Application is scheduled to be heard on July 16 and 17, 2015.

3This Interim Decision addresses the following:

a. The applicant’s May 18, 2015 Request that “Toronto Paramedic Services” be added as a party to the Application;

b. The applicant’s May 25, 2015 Request that the respondent be required to produce certain documents; and

c. The applicant’s request for 10 Summonses to Witness.

Request to add a party

4On May 18, 2015, the applicant filed a Request for an Order during Proceedings seeking to add “Toronto Paramedic Services” as a respondent to the Application (“Request to Add a Party”). In his Request, the applicant alleges that the proposed respondent, Toronto Paramedic Services, discriminated against him because of disability on April 28, 2012 by allowing the applicant to be walked down to the ambulance from the third floor of his apartment building instead of carrying the applicant down on a stretcher.

5The respondent Toronto Police Services Board opposes the Request.

6The proposed respondent “Toronto Paramedic Services” has not responded to the Request because it appears not to have been served with a copy of the Request, notwithstanding that the Request form itself and Rule 19.2 of the Tribunal’s Rules of Procedure state that Requests for an Order during Proceedings must be delivered to “any person or organization who may have an interest in the request.” In the circumstances, however, and insofar as I find that it is appropriate to deny the Request to add “Toronto Paramedic Services” as a party to the Application, I am prepared to determine the Request in the absence of submissions from the proposed respondent.

7In order to provide for the fair, just and expeditious resolution of any matter before, the Tribunal has the power to add or remove a party to the proceeding (Rule 1.7(b). In exercising its discretion with respect to whether it ought to add a respondent to an ongoing proceeding, the Tribunal has stated that it will consider, among other things, whether there are allegations against the proposed respondent that could support a finding that the proposed respondent violated the Code; and whether it would be fair in all of the circumstances to add the proposed respondent.

8In the case at hand, I am not persuaded that it would be appropriate to add the proposed respondent as a party to the proceeding.

9First, the timing of the Request weighs against it. As noted above, the Request to add the proposed respondent was not made until May 18, 2015, which was less than two months before the first scheduled day of hearing. Adding the proposed respondent as a party at this stage of the proceeding would surely necessitate the adjournment of the hearing, in order to allow the new party to be given notice of the Application; file a Response to it (normally 35 days after notice of the Application is given); allow the applicant to file a Reply to that Response (normally 14 days after the Response is delivered); and have the proposed respondent file its documents and witness statements (45 days before the hearing), not to mention any amended documents and/or witness statements that the current parties to the Application might seek to file as a result of the proposed respondent being added as a party. In my view, it would not be fair to the respondent Toronto Police Services Board to adjourn the hearing at this juncture based on the applicant’s belated request to add a respondent to the Application.

10The absence of a cogent reason for the lateness of the Request to add the proposed respondent is another factor that weighs against the granting of the Request. The applicant submits that the reason for the late request was that it was not “concluded” that the applicant had been discriminated against by the proposed respondent until the applicant’s legal representative read the Ambulance Report in early May 2015. However, the applicant’s claim that paramedics discriminated against him rests on the allegation that he was walked downstairs to the ambulance, instead of being carried down by paramedics on a stretcher; and this alleged fact was known at the time that the applicant’s representative filed an amended Application in February 2014 and is contained in the amended Application. In the circumstances of this case, I am not persuaded that there is a justifiable reason for the late Request to add the proposed respondent.

11Finally, I am not prepared to add the proposed respondent as a party to the Application because, in my view, the facts alleged in the Request to Add a Party and/or in the amended Application, if proven to be true, could not lead to a finding that the proposed respondent discriminated against the applicant because of his disability.

12For the above reasons, the applicant’s Request to add “Toronto Paramedic Services” as a respondent to the Application is denied.

Request for production of DOCUMENTS

13On May 25, 2015, the applicant filed a Request for an Order during Proceedings requiring the respondent to produce the notes of any police officers who guarded the applicant on late April 28 and/or 29, 2012, and, in particular, the April 28, 2012 notes of PC Hadrell and PC Smith. The respondent opposes the production request.

14The test for the production of documents is arguable relevance.

15The applicant submits that the documents sought are arguably relevant because they establish that a detective with the respondent police service, Detective Miron, misrepresented the facts when he recorded in his notes that the applicant answered his questions at St. Joseph’s Hospital on the evening of April 28, 2012. The applicant contends that the detective in question came to see him on April 29, 2012, not April 28, 2012. The applicant also contends that he did not answer the detective’s questions because he was unable to do so.

16In my view, the applicant has not established that the documents in question are arguably relevant to an issue in the human rights Application. In particular, the applicant has not explained and I cannot see how the accuracy of Detective Miron’s notes regarding his alleged questioning of the applicant at the hospital is relevant to the applicant’s allegation that police officers discriminated against him because of his ethnic origin, creed, sex and disability in the manner they allegedly treated the applicant when they arrested him at his apartment on April 28, 2012.

17For the above reasons, the applicant’s production request is denied.

Request for Summonses

18On or about June 3, 2015, the applicant wrote to the Tribunal requesting that he be provided with 10 Summonses to Witness so that he could summons “some of the respondent’s police officers” to the hearing of the Application.

19In my view, it is appropriate to address the applicant’s request for summonses at the July 16, 2015 hearing.

20At the outset, I note that it is not clear to me why the applicant requires 10 summonses in the case at hand, since, according to the information he has provided the Tribunal and the respondent pursuant to Rule 17.2 of the Tribunal’s Rules of Procedure, the applicant only proposes to call eight witnesses (other than himself), two of whom are already being called by the respondent. The Tribunal will give the applicant an opportunity to clarify this issue at the hearing.

21In addition, I cannot determine, based on the witness statements provided by the applicant to date, whether the applicant’s proposed witnesses have evidence to give that is relevant to the issues to be determined in this case. In my view, it would not be appropriate to summons a large number of witnesses to attend the hearing before determining that they have evidence to give that is relevant and/or necessary in the case at hand. This issue will also be addressed at the hearing.

22Finally, it is clear to me that time would not permit the Tribunal to hear from all of the proposed witnesses on the two dates presently scheduled, if it were to determine that they had evidence to give that is relevant to the issues in the human rights Application. As in the normal course, it is anticipated that the applicant will proceed first with the presentation of his evidence on July 16, 2015. After the conclusion of the applicant’s testimony, the Tribunal proposes to hear from PC Crossley and PC Bevilacqua, whom both the applicant and the respondent appear to agree have relevant evidence to give in the case at hand. In my view, there would likely not be time, following the testimony of these three witnesses, to hear from the other witnesses the applicant proposes to summons.

23In the circumstances, the applicant should come to the July 16, 2015 hearing prepared to identify which witnesses he proposes to summons to give evidence at the hearing and explain how such proposed witnesses’ evidence is relevant to the issues to be determined in the human rights Application. In the event that the Tribunal decides that it is appropriate to hear from any or all of the additional witnesses whom the applicant proposes to call, arrangements will be made to hear from such witnesses on July 17, 2015, if that is feasible, or on another date, if it is not.