HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrew Sprague
Applicant
-and-
Beck Taxi Limited
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Sprague v. Beck Taxi Inc.
WRITTEN SUBMISSIONS
Andrew Sprague, Applicant
Self-represented
Beck Taxi Limited, Respondent
Lauren Chang MacLean, Counsel
1This Application alleges discrimination with respect to goods, services and facilities because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The Tribunal was supposed to hear this case on June 10, 2016, but adjourned the hearing pending the filing of the full transcript of a related case, R. v. Bashir, heard by the Ontario Superior Court of Justice on March 17, 2016. On June 9, 2016, the respondent filed the transcript with the Tribunal. After reviewing the transcript, the Tribunal decided to hold a summary hearing to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
3On August 4, 2016, the applicant filed a Request for an Order During Proceedings (“RFOP”) requesting that the Tribunal make a determination that the respondent breached settlement privilege and requesting that I recuse myself because I received, reviewed and considered alleged privileged communications.
4The respondent filed a Response to the RFOP on August 18, 2016.
Parties’ Submissions
5The applicant argues that the respondent breached the applicant’s settlement privilege when the respondent disclosed to the Tribunal, without the applicant’s consent, protected communications that the applicant had sent to the respondent. He maintains that the communications are protected by settlement privilege.
6On May 13, 2016, the Tribunal issued a Case Assessment Direction (May 13, 2016 CAD”) indicating that the alleged privileged correspondence was not arguably relevant and making no determination on the privileged nature of the correspondence. The Tribunal indicated that it would disregard the communication.
7The applicant argues that the Tribunal should have made a determination that the respondent breached the applicant’s settlement privilege. The applicant requests that the Tribunal make a finding regarding privilege. Finally, the applicant argues that because I received, reviewed and considered communications that are protected by settlement privilege, I should recuse myself from this matter.
8The respondent opposes the RFOP arguing that the Tribunal has already addressed the applicant’s RFOP regarding settlement privilege in its May 13, 2016 CAD.
9The respondent submits that the applicant’s request amounts to a request for reconsideration of the Tribunal’s finding on this issue. The Tribunal’s Rules of Procedure and jurisprudence state that only those decisions which are “final” will be reconsidered by the Tribunal. The respondent submits that case assessment directions are not final decisions eligible for reconsideration either through the normal procedural channels or otherwise.
10The respondent submits that the requested order is not relevant to the substance or the fair determination of this case. In particular, the request is not relevant to the imminent next step in this litigation, which is a summary hearing on the issue of whether the applicant has access to sufficient evidence to prove, beyond his own mere belief and speculation, that his rights were infringed in the manner alleged, and accordingly, whether the Application has any reasonable prospect of success. The respondent denies that it has breached settlement privilege. The respondent does not support the applicant’s request that I recuse myself as there are no compelling reasons for recusal.
decision
11Requesting that the Tribunal change its position on a case assessment direction is tantamount to asking the Tribunal to reconsider an earlier decision to not determine whether the documents are subject to settlement privilege. There is no basis for reviewing or re-visiting the May 13, 2016 CAD.
12The applicant requests that I recuse myself because I received, reviewed and considered communications that are protected by settlement privilege. As stated in my May 13, 2016 CAD, I will disregard the communication. The next step in this matter is a summary hearing to determine whether the Application has a reasonable prospect of success. The allegedly privileged communications are not relevant to this issue and will not be considered.
13The fact that I have seen these documents does not give rise to a reasonable apprehension of bias. Adjudicators are frequently provided with copies of documents that are not entered into evidence. Decisions are made based on the evidence before the Tribunal and not on what is contained in the Tribunal file. See James v. Workplace Safety and Insurance Board, 2012 HRTO 1215.
order
14The request to determine the issue of whether the document is subject to settlement privilege is denied;
15The request that I recuse myself is denied;
16The Tribunal will continue to schedule the half-day conference call summary hearing.
Dated at Toronto, this 29th day of August, 2016.
“Signed By”
Josée Bouchard
Vice-chair