Amazan v. Toronto Catholic District School Board, 2016 HRTO 1555

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Félix Amazan

Applicant

-and-

Toronto Catholic District School Board, Norma Rios, and Sylvie Talarico

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: December 5, 2016

Citation: 2016 HRTO 1555

Indexed as: Amazan v. Toronto Catholic District School Board

WRITTEN SUBMISSIONS

Felix Amazan, Applicant

Self-represented

Toronto Catholic District School Board, Norma Rios, and Sylvie Talarico, Respondents

Melissa Arruda, Counsel

Toronto Police Services Board and Lynne Beveridge, Affected Parties

Ansuya Pachai, 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 employment because of race, colour, ancestry, place of origin and ethnic origin. The first two days of hearing in this matter took place on September 8 and 9, 2016. This Interim Decision addresses several Requests for an Order During Proceedings filed by the applicant subsequent to the hearing as well as a Request for an Order During Proceedings (“RFOP”) filed by the affected parties, The Toronto Police Services Board and Detective Lynn Beveridge.

Background

2As noted in 2016 HRTO 1137, a previous Interim Decision in this matter, the applicant is an elementary school teacher employed by the respondent school board (the “Board”). Following a summary hearing, the Tribunal dismissed all but one of the applicant’s allegations. See 2015 HRTO 751. The Application continues against the remaining respondents regarding an incident that occurred on March 6, 2013 between the applicant and the individual respondent Norma Rios at St. Cyril Elementary School. Ms. Rios reported the incident to the police and the applicant was charged with a criminal offence. The charge was later withdrawn.

The Hearing and Requests

3At the commencement of the hearing, and as is not uncommon, I dealt with several preliminary issues. Among these issues was the attendance of Norma Rios, an individual respondent. Ms. Rios was unable to attend the hearing for medical reasons. Prior to the hearing, the intervenor produced a letter from Ms. Rios’ doctor confirming her inability to attend. I accepted the medical note and the Tribunal advised that Ms. Rios was not required to attend the hearing on September 8 and 9, 2016. At the hearing, I noted that the doctor’s letter seemed to indicate that Ms. Rios may never be able to attend the hearing of this matter. As a result, I asked respondent’s counsel and the intervenor to clarify Ms. Rios’ availability, if they could. Neither respondents’ counsel nor the intervenor could shed any light on the issue. The intervenor, which is Ms. Rios’ trade union, undertook to make inquiries to determine whether Ms. Rios will be able to attend the hearing in the future, whether in person or by telephone or videoconference. For his part, the applicant stated that he did not believe the reasons for Ms. Rios’ absence and requested that the Tribunal undertake an inquiry. The matter was left in the intervenor’s hands to advise regarding Ms. Rios’ availability.

4The applicant filed a RFOP on September 15, 2016, seeking an order requiring Ms. Rios to disclose her doctor’s name and produce all arguably relevant medical documents from her physician and other medical practitioners from March 6, 2013 to the present. The applicant also requested an original copy of the letter supporting her absence on September 8 and 9, 2016 with the doctor’s name (the applicant received a redacted copy) and that Ms. Rios not be allowed to testify by teleconference.

5The respondents responded by e-mail on September 15, 2016 and made the following submissions. The Tribunal accepted the medical information supporting Ms. Rios’ absence and the respondent and intervenor had undertaken to clarify Ms. Rios’ attendance for the balance of the hearing. The applicant’s request for medical information went beyond the scope of entitlement to Ms. Rios’ medical information.

6The applicant’s request came shortly after the first two hearing dates, during which the issue of Ms. Rios’ future attendance had been addressed. Consequently, this request was both unnecessary and unhelpful. There is no basis for an inquiry into Ms. Rios’ medical history or for disclosure of her medical information. There has been no request to allow Ms. Rios to participate in the hearing electronically; therefore, this aspect of the request is speculative and premature. Having said that, neither the respondent nor the intervenor have provided any updated information about Ms. Rios’ ability to attend the next hearing dates, scheduled for January 26 and 27, 2017. Accordingly, it is appropriate to direct the respondents, of whom Ms. Rios is one, to state whether Ms. Rios will be able to attend the hearings in January 2017 and if she requires any accommodation to facilitate her attendance.

7During the discussion of Ms. Rios’ availability, counsel for the respondents advised that one of their witnesses, Jose Cayanan, may also be unable to attend the hearing for medical reasons. The discussion regarding Mr. Cayanan’s attendance was more limited and there was no indication, one way or the other, of whether Mr. Cayanan may not be able to attend on the first two hearing dates or generally.

8Also on September 15, 2016, the applicant filed a Request for an Order During Proceedings seeking production of similar medical information as he requested from Ms. Rios. In their e-mail response of September 15, 2016, the respondents submitted that this request was premature and inappropriate.

9At this point, there is no indication that Mr. Cayanan will not be able to attend the hearing in the future, since respondents’ counsel only raised this as a possibility. As a result, there is in my view no proper basis for requiring any production of medical information from Mr. Cayanan. However, if there is any issue with Mr. Cayanan’s attendance at the hearing of this matter, then the respondents must advise the Tribunal as soon as the issue arises and provide supporting documents, as necessary.

10In an Interim Decision dated July 22, 2016, the Tribunal ordered the respondents to disclose arguably relevant documents and e-mail messages related to the incident in question, if they exist. In particular, the applicant identified an e-mail exchange on March 13, 2013 between John Shain, a superintendent of the organization respondent, and Detective Lynn Beveridge, the police officer who investigated Ms. Rios’ complaint. This exchange indicates that Mr. Shain was inquiring regarding the applicant’s status and whether he was permitted to attend work. The e-mail exchange was included in the respondents’ Response, but the entire exchange was not included in the Response.

11The respondents did not make further disclosure of e-mail messages before the hearing. Counsel for the respondent submitted that she had made a diligent search of Mr. Shain’s files and e-mail records to locate any arguably relevant documents that had not been disclosed. Counsel advised that no further documents had been located. Counsel submitted that she had contacted the organizational respondent’s Information Technology department regarding Mr. Shain’s e-mail and was advised that the organizational respondent’s systems store messages for limited period of time and, given the passage of time, Mr. Shain’s messages from March 2013 have been deleted. Counsel undertook to provide any further arguably relevant documents that are discovered.

12The applicant submitted that he believed the e-mail messages existed and noted that the respondents had included e-mail messages in their Response.

13Respondents’ counsel replied that the e-mail message in question is the exchange between Mr. Shain and Detective Beveridge on March 13, 2014, described above. Counsel reiterated that the organizational respondent has been unable to locate the remainder of the e-mail exchange, but, again, undertook to disclose it if it is discovered. Counsel also submitted that the scope of the Application is limited to the events of March 6, 2013. Accordingly, the e-mail in question is beyond the scope of the Application and not material to the issues before the Tribunal.

14The applicant’s position was that the respondents were hiding the e-mail messages between Mr. Shain and Detective Beveridge. The applicant stated that the organizational respondent had used devious methods in the past, e.g., with respect to the closing of St. Cyril Elementary School. The applicant submitted that the organization respondent would not disclose the document, regardless of counsel’s efforts. The applicant submitted that the document is relevant because it is related to the incident of March 6, 2013.

15I noted that the incident in question occurred on March 6, 2013, and that the actions of Detective Beveridge and Mr. Shain are not really in issue in this Application. On the face of the portion of the e-mail exchange that has been disclosed, the messages also do not appear to be probative of the issues arising in this Application. I was satisfied with the respondent’s explanation and undertaking and directed the respondent to continue searching for arguably relevant documents.

16Notwithstanding this direction, the applicant filed two RFOPs on September 14, 2016, requesting production of the e-mail messages sent between Mr. Shain and Detective Beveridge on March 13, 2013. The first of the requests was directed at the organizational respondent and the second towards Detective Beveridge, who is not a party to this proceeding. In the second request, the applicant effectively acknowledges that the request repeats his position enunciated during the hearing. The applicant also asserted that he “proved” to me during the hearing that the documents exist and that I “agreed” with him.

17It does not appear that the respondents replied to this request, but the Toronto Police Services Board (“TPSB”) filed a Response to a Request for an Order on November 8, 2016, following a direction from the Tribunal and an extension of time limits. TPSB submitted that it had not been able to locate the e-mail communications in question, but was awaiting final confirmation. In a letter dated November 22, 2016, the TPSB confirmed that it has been unable to locate either a paper copy or an electronic copy of the e-mail messages the applicant requested. The TPSB advised that Detective Beveridge retired in 2014 and her e-mail account was deleted.

18I certainly agree with the applicant that the e-mail messages in question are arguably relevant and ought to be disclosed, if they can be located. As noted, I am satisfied with the respondent’s explanation given and the hearing; therefore, the applicant’s assertion that he had “proven” these messages exist, in the sense that they can be located and produced, is incorrect. The Tribunal has already ordered the respondents to produce the e-mail messages in question and they remain subject to that order. The TPSB has confirmed that it also cannot locate the messages. There is no basis for questioning that assertion. In my view, there is no need for the Tribunal to issue another order on this subject.

19I note that on November 23, 2016, the applicant filed another RFOP seeking an order to require the TPSB to undertake a further search for the messages exchanged between Mr. Shain and Detective Beveridge on March 13, 2013. The time period for responding to this request has not yet passed. The Tribunal shall address the request once the deadline for response has expired.

20On October 30, 2016, the applicant filed a RFOP for an order requiring Detectives Beveridge and Marilyn Frank to disclose the entirety of Ms. Rios’ statement to the police on March 8, 2013. The TPSB addressed this request in its response filed on November 8, 2016. The TPSB submitted that it located two documents that appear to be encompassed by the request. One is a typed document dated March 6, 2013 that appears to be a statement made by Mr. Rios, but there is no record of when the police received it. The second is Detective Frank’s notes made on March 8, 2013. The TPSB submitted that it will provide the documents, including a best effort transcription of Detective Frank’s notes, if ordered by the Tribunal.

21The documents retrieved by the TPSB are arguably relevant and it is appropriate to direct the TPSB to disclose them.

22On September 21, 2016, the applicant filed a RFOP in which he raised concerns with the Tribunal’s processes. In that regard, the applicant pointed to the fact that at the hearing I was unaware of two RFOPs the applicant filed in the week prior to the hearing, that the Tribunal quickly addressed the issue of Ms. Rios’ attendance, technical difficulties experienced when calling his witness to testify by teleconference and failure to enforce deadlines and orders.

23The respondents did not respond to this request, but there is no merit to it. The applicant filed two RFOPs in the week prior to the hearing, including one the day before the first day of hearing. These RFOPs were not brought to my attention prior to the hearing date. This is unfortunate, but in light of the short time before the hearing and the requirement to allow the respondents to reply to the requests, it is not likely that the requests would have been addressed before the hearing in any event. Preliminary matters, particularly those raised at the last minute, are routinely dealt with at the commencement of a hearing, as was the case here. The issue of Ms. Rios’ attendance was a very simple matter that was easily dealt with via e-mail, despite the fact that I was presiding at another proceeding the day the issue arose. The Tribunal has had to remind the both the respondents and the applicant of the deadlines for filing documents, but I am satisfied that no party has suffered any prejudice as a result. As the respondent has yet to begin its case, the applicant has had ample time to prepare. As noted above, the respondents have adequately addressed the issue of their ongoing disclosure obligations and I do not agree that the Tribunal has failed to enforce any order. At the hearing, the Tribunal’s teleconference system did not function properly, which is regrettable, but a work-around was quickly fashioned and the applicant’s witness was able to testify. In my view, the applicant’s concerns are baseless or overstated and there is no foundation for his concern that he may not receive a fair hearing.

TPSB’s Request

24The TPSB filed a RFOP on August 17, 2016, in which it submitted that the applicant’s conduct towards it and Detective Beveridge in this proceeding is vexatious and amounts to an abuse of process. The TPSB requested that the applicant’s various requests seeking to make allegations against the TPSB and Detective Beveridge be dismissed and that the applicant be required to seek permission from the Tribunal to make any further requests to the TPSB or its personnel. The TPSB filed supplementary submissions to this RFOP on October 17, 2016, to request that the Tribunal require the applicant to follow certain protocols when filing requests involving the TPSB. The parties to the Application have not responded to this request and the time for doing so has passed.

25There is no doubt that the applicant has attempted to revive allegations against TPSB personnel, Detective Beveridge in particular, that the Tribunal has dismissed. There was no merit to these attempts and the Tribunal dismissed the applicant’s requests to rehabilitate allegations against Detective Beveridge and others. See 2016 HRTO 1137. Accordingly, this aspect of the TPSB’s request has already been achieved. I tend to agree that the applicant’s repeated allegations against Detective Beveridge and the TPSB are somewhat vexatious and abusive of the Tribunal’s processes. On the other hand, the applicant is a layperson without legal training. The police were engaged with the parties regarding incident on March 6, 2013. In these circumstances, it was not unreasonable, and perhaps inevitable, that the TPSB would be involved in these proceedings, at least from the standpoint of producing documents related to the investigation of the incident. Following the disposition of the applicant’s request filed on November 23, 2016, that role will have been exhausted and, in my view, the TPSB should not be subject to further requests unnecessarily. Accordingly, the applicant shall be required to request the Tribunal’s permission should he wish to file RFOPs regarding the TPSB in the future.

Order

26The Tribunal orders as follows:

1. Within 21 days of the date of this Interim Decision, the respondents shall indicate if Ms. Rios is able to attend the hearing scheduled on January 26 and 27, 2017 and whether she requires any accommodation in order to participate in the hearing;

2. Within 14 days of the date of this Interim Decision, the TPSB shall produce a copy of the documents described in paragraph 20, above, to the applicant and the respondents; and,

3. Should the applicant wish to file any RFOPs involving the TPSB in the future, he must first file the RFOP with the Tribunal, along with submissions explaining why the request is necessary. The Tribunal shall give directions as necessary and the TPSB is not required to respond to any request from the applicant unless so directed by the Tribunal.