Human Rights Tribunal of Ontario
BETWEEN:
Wesley Crichlow Applicant
-and-
Toronto Transit Commission Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard Date: March 18, 2016 Citation: 2016 HRTO 352 Indexed as: Crichlow v. Toronto Transit Commission
Written Submissions
Wesley Chrichlow, Applicant Self-represented
Toronto Transit Commission, Respondent Lucy Siraco, Counsel
Introduction
1This is an Application dated December 19, 2014 alleging discrimination with respect to services because of race, colour and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant alleges that on March 11, 2014, as he was entering the subway station, he went past the turnstile and was called back by a White Toronto Transit Commission (“TTC”) employee. The applicant alleges that the TTC employee yelled at him, assumed he had not swiped his card, questioned him about it and made inappropriate demeaning racist comments to the applicant. The applicant alleges that he went back to the TTC employee and told him he should stop such racist practices.
3By Requests for Order During Proceedings dated July 8, 2015 and December 24, 2015 the respondent seeks to strike the Reply, dated June 19, 2015, filed by the applicant on the basis that the contents are largely repetitive and constitute arguments not consistent with a proper Reply and that the claim for defamation is precluded by absolute privilege.
4The applicant has not filed a Response to Requests for Order During Proceedings and the time for filing a Response has passed.
Request to Strike Reply Because Not Proper
5The respondent is of the view that the applicant simply reasserts his views about the basis upon which he believes he was discriminated against without asserting new alleged facts that he intends to prove and that are not already contained in the Application.
6The respondent argues that the Reply contains only one new issue that may be in reply to a matter raised in the respondent’s Response, namely, that the respondent did not conduct a thorough investigation of the applicant’s complaint to the respondent regarding the events that allegedly occurred on or about March 11, 2014. The new additional alleged facts raised by the applicant are that the respondent did not, during its investigation, make use of the video surveillance from the collector booth.
7The respondent argues that, other than the new alleged facts about the thoroughness of the investigation, the applicant’s contention rests on a recitation of theories and in this regard is repetitive and contains no new or additional alleged facts. The respondent submits that this constitutes arguments that are not proper for a Reply.
8The respondent filed a Supplemental Response to address the allegation of the thoroughness of its investigation on December 24, 2015.
Claim of Defamation
9The respondent also submits that the applicant makes a claim of defamation (libel and/or slander) against the respondent that is based solely on submissions made by the respondent in paragraph 40 of its Response to the Application. The respondent argues that the doctrine of absolute privilege prohibits causes of action based on communication made during, or incidental to, judicial or quasi-judicial proceedings.
10The respondent requests that, based on the doctrine of absolute privilege, the applicant’s claim of defamation be struck from the Reply in its entirety.
Analysis and Decision
11Rule 9 of the Tribunal’s Rules of Practice provides that an applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply setting out the different version, unless it is contained in the Application. The Reply must deal only with new matters that are raised in the Response.
12The respondent is quite right that a Reply is not the place to reassert views about the basis upon which an applicant believes he was discriminated. Having said this, I agree with the respondent’s position that the Reply contains one new issue in reply to a matter raised in its Response to the Application, namely that the respondent did not conduct a thorough investigation of the applicant’s complaint to the respondent regarding the events that occurred on or about March 11, 2014. The respondent has filed its Supplemental Response, dated December 24, 2015, to address this issue.
13I find that it is not appropriate to strike the applicant’s Reply in its entirety and that the following two paragraphs in the Reply should stand: the paragraphs entitled “Response To TTC’s Point 3” and “Response to TTC’s Point 34”.
14I also agree with the respondent’s arguments that a claim for defamation based solely on the submissions made by the respondent cannot be made. It is well established that the doctrine of absolute privilege prohibits against causes of action that are based on communications made during, or incidental to, judicial or quasi-judicial proceedings, such as pleadings in administrative proceedings. This includes statements made by parties in the course of applications before this Tribunal. See Carlos v. 117364 Ontario, 2009 HRTO 311; Ornelas v. Casamici Restaurant, 2010 HRTO 1078; and 1522491 Ontario Inc. v. Stewart, Esten Professional Corp, 2010 ONSC 727.
15I find that, based on the doctrine of absolute privilege, the claim of defamation should be struck from the Reply in its entirety. I also accept respondent’s supplementary Response dated December 24, 2015.
Order
16For the above reasons, I make the following order:
a. The respondent’s request to strike the applicant’s Reply is granted in part, and portions of the Reply are struck as set out in para. 14 above;
b. The respondent’s Supplementary Response forms part of the respondent’s submissions;
c. The claim of defamation will be struck from the Reply in its entirety.
Dated at Toronto, this 18th day of March, 2016.
“Signed By”
Josée Bouchard Vice-chair