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 Date: April 29, 2016 Indexed as: 2016 HRTO 575
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"). A hearing in respect of this Application is scheduled for June 10, 2016 in Toronto.
2This Interim Decision addresses preliminary matters.
The Dispute
3The applicant alleges that on December 10, 2014, the driver of a Beck taxicab ("driver") denied him a service because he was accompanied by his certified service dog.
4The respondent denies the allegations and argues that the respondent is not the driver's employer. It maintains that even if the allegations are founded, the respondent should not be held vicariously liable for the driver's conduct.
Request for Order During Proceedings
5On February 4, 2016, the Tribunal issued a Notice of Hearing directing the parties to exchange all arguably relevant documents in their possession by February 25, 2016. Amongst its arguably relevant documents, the respondent produced a copy of a document listing commendations ("Commendation Document") that the driver received from the Toronto Transit Commission Wheel-Trans.
6The Commendation Document refers to an incident that allegedly occurred on November 30, 2015 in which the driver telephoned "911" emergency services and performed cardiopulmonary resuscitation ("CPR") on one of his customers. The customer was saved and the incident is described as heroic. The applicant wishes to show that the driver fabricated this story.
7The applicant filed a Request for an Order During Proceedings ("request for particulars") on February 26, 2016 seeking an Order to compel the Toronto Police Services Board and the Toronto Paramedic Services to provide the following information:
a. Confirmation that the driver telephoned "911" on November 30, 2015 [...] to report that his taxicab passenger was not breathing;
b. Confirmation that paramedics from Toronto Paramedic Services attended [at the alleged location of the incident] on November 30, 2015;
c. Confirmation that paramedics from Toronto Paramedic Services saw the driver performing CPR on his taxicab passenger; and
d. Confirmation that an officer from the Toronto Police Services Board took a statement from the driver in respect to the driver performing CPR on his taxicab passenger.
8In its response to the request for particulars, the respondent indicates that it does not intend to lead evidence about the event and as a result, the information sought by the applicant is irrelevant. The Commendation Document is not included in the respondent's April 26, 2016 disclosure of documents on which the respondent intends to rely at the hearing. Consequently it will not be relying on it at the hearing.
9The applicant included the Commendation Document in his April 26, 2016 disclosure of documents upon which the applicant intends to rely on at the hearing ("applicant's Disclosure Documents"). It appears he intends to rely on the document.
10In Robinson v. Ethical Solution Providers Inc., 2015 HRTO 1334, the Tribunal considered a request seeking production of certain documents that were arguably relevant to an issue raised in the proceeding. The applicant alleged discrimination and reprisal with respect to employment because of various grounds contrary to the Code. The applicant requested documents relating to an alleged "fight" between one of the respondents' proposed witnesses and another co-worker. The documents were sought for the purpose of undermining the credibility of the witness. The Tribunal found at para. 11:
A challenge to a witness' credibility is generally conducted at a hearing through cross-examination, and questions asked during cross-examination can have a wider latitude than a strict application of the test of arguable relevance to an issue raised in the proceeding. However, the collateral evidence rule prevents the cross-examining party from introducing evidence to contradict a witness on a point that is not directly relevant to the issues to be determined. In my view, the requests for production made by the applicant in relation to [the witness] fall afoul of the collateral evidence rule, as the documents sought have no direct relevance or even arguable relevance to the actual issues to be determined in this proceeding. Rather, the documents sought are entirely for the purpose of undermining [the witness'] credibility. On this basis, the applicant's request is denied.
11It is clear that the applicant seeks to rely on the Commendation Document to challenge the credibility of the driver. I find that the Commendation Document refers to events that allegedly happened almost one year after the allegations in the Application and are irrelevant. The applicant's request for particulars is denied.
Proceeding before Ontario Court of Justice
12In his Application, the applicant indicates that a complaint based on the facts of the Application was filed with the City of Toronto's Municipal Licensing and Standards Investigation Services Licensing Enforcement. The parties did not request a deferral of the Application. However, the applicant's Disclosure Documents include transcripts of a court proceeding dated December 1, 2015 and March 17, 2016 before the Ontario Court of Justice in Case file No. 4860-999-15-103479-00. The court proceeding appears to be based on the same facts as the allegations in this Application.
13Section 34(11) of the Code provides
A person who believes that one of his rights under Part I has been infringed may not make an application under section (1) with respect to that right if a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn.
14In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449 at para. 8, the Tribunal described the operation of s. 34(11) as follows:
If a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of the specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.
15In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paras. 10 – 11, the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section to apply:
Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant's ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding on which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant's decision to raise the Code and seek remedies for its violation in a court action.
To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where the plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.
16The Ontario Superior Court of Justice in Grogan v. Ontario (Human Rights Tribunal) 2012 ONSC 319 at para. 39 endorsed the reasoning in Beaver, above, that "the legislative concern underlying s. 34(11) is the elimination of duplicative court and Tribunal proceedings alleging similar breaches of the Code".
17The Tribunal requires particulars of the court proceeding mentioned above to consider whether section 34(11) of the Code is applicable and is a bar to this Application. By no later than May 6, 2016, the applicant must deliver to the respondent and file with the Tribunal written submissions on whether this Application is barred because there is a civil proceeding based on the same facts as the allegations in the Application. By no later than May 13, 2016, the respondent may deliver to the applicant and file with the Tribunal its response to the submissions.
Order
18For the reasons given above, I order as follows:
a. The applicant's request for an Order to compel the Toronto Police Services Board and the Toronto Paramedic Services to provide information concerning the November 30, 2015 incident is denied.
b. By no later than May 6, 2016, the applicant must deliver to the respondent and file with the Tribunal written submissions on whether this Application is barred because there is a civil proceeding based on the same facts as the allegations in the Application.
c. By no later than May 13, 2016, the respondent may deliver to the applicant and file with the Tribunal its response to the submissions.
19I am seized of this matter.
Dated at Toronto, this 29th day of April, 2016.
"signed by"
Josée Bouchard Vice-chair