Rose v. Toronto Police Services Board, 2016 HRTO 647

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Garnette Rose

Applicant

-and-

Toronto Police Services Board, William Blair, Bruce Johnston and Larry Sinclair

Respondents

RECONSIDERATION DECISION

Adjudicator: Ken Bhattacharjee Date: May 12, 2016 Citation: 2016 HRTO 647 Indexed as: Rose v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Garnette Rose, Applicant

Osborne G. Barnwell, Counsel

Introduction

1The purpose of this Reconsideration Decision is to address the applicant’s Request for Reconsideration of the Tribunal’s Decision, 2015 HRTO 1716, which dismissed the Application.

BACKGROUND

2On June 10, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to employment because of his race, colour, place of origin, and ethnic origin.

3The hearing of the merits of the Application commenced on January 15, 2013. The last two hearing days were on May 7, 2013 and June 3, 2013. On both of those days, I had to stop and adjourn the hearing because, when counsel for the Toronto Police Services Board (“TPSB”) was conducting his cross-examination of the applicant, the applicant exhibited behaviour that was discourteous and disrespectful, and, from the TPSB’s counsel’s perspective, threatening. It was obvious to me, particularly on June 3, 2013, that the applicant was either unwilling or unable to control his behaviour.

4Accordingly, on June 6, 2013 and November 1, 2013, I issued Case Assessment Directions (“CADs”), which included a description of the applicant’s behaviour, my observation that he was either unwilling or unable to control his behaviour, and the following directions:

1. The applicant shall file a report from a psychiatrist, which addresses his behaviour, whether he is medically able to participate in the hearing in a manner which is courteous and respectful of the Tribunal and other participants, and whether he has any disability-related needs that need to be accommodated during the hearing, and, if so, what accommodations the psychiatrist believes are required.

2. The psychiatrist should be someone who is mutually acceptable to all the parties, or the applicant should be referred to two psychiatrists, one of whom is selected by the applicant and one of whom is selected by the respondents.

3. If the parties are able to agree upon a mutually-acceptable psychiatrist, the applicant shall bear the cost of seeing the psychiatrist and obtaining a report.

4. Given that the applicant’s counsel stated that the applicant currently has a limited ability to pay to see, and obtain a report from, a psychiatrist, I will not impose strict deadlines at this time.

5The CADs also directed the parties to provide a copy of my June 6, 2013 CAD, which included a description of the applicant’s behaviour, my observation that he was either unwilling or unable to control his behaviour, and direction 1) above, to the psychiatrist(s).

6On October 10, 2014, the Tribunal convened a Conference Call to deal with the fact that the applicant had not yet filed a report from a psychiatrist. In their submissions, the respondents requested that the Tribunal provide a deadline for the applicant to file a psychiatrist’s report because they would be prejudiced if the hearing was delayed indefinitely. They also requested that the Application be dismissed as abandoned if the applicant failed to file a report by the deadline. The applicant opposed this request on the basis that he was living in Florida, was impecunious, and lacked the funds to travel back to Ontario to see a psychiatrist and obtain a report at that time.

7On May 20, 2015, having not yet received a psychiatrist’s report and upon a further request from the respondents to provide a deadline for the applicant to file the report, the Tribunal issued a CAD with the following directions:

1. By no later than June 30, 2015, the applicant shall deliver to the respondents and file with the Tribunal a report from a psychiatrist.

2. By no later than July 14, 2015, the respondents shall deliver to each other and the applicant and file with the Tribunal written submissions which address (a) what steps the Tribunal should take as a result of the events during the hearing and the report of the psychiatrist, or (b) what steps the Tribunal should take as a result of the events during the hearing and the failure of the applicant to file the report of the psychiatrist.

3. By no later than July 28, 2015, the applicant shall deliver to the respondents and file with the Tribunal written submissions in response.

4. By no later than August 4, 2015, the respondents shall deliver to each other and the applicant and file with the Tribunal written submissions in reply.

8On June 29, 2015, the applicant filed a Request for an Order During Proceedings (“RFOP”), which requested an extension of time of 60 days for him to see a psychiatrist.

9The respondents filed Responses to the RFOP, which opposed the applicant’s request for an extension of time, and written submissions, which requested that the Application be dismissed because the applicant’s conduct shows that he has abandoned the Application, his entire course of conduct constitutes an abuse of process, and it would be unfair and unjust to the respondents for the Application to continue.

10On July 24, 2015, the applicant sent the Tribunal an email, which stated that a tentative appointment had been scheduled with a psychiatrist for September 11, 2015.

11On August 11, 2015, the applicant sent the Tribunal a letter, which stated that because he is now living in the United States and in the process of obtaining residency, he would not be able to see the psychiatrist in Toronto until October 2015.

12On October 22, 2015, the applicant sent the Tribunal an email, which stated that he has an appointment with the psychiatrist on November 20, 2015.

13One month after November 20, 2015 appointment date, I noted that the applicant had not filed a report from the psychiatrist, had not confirmed whether or not he saw the psychiatrist on November 20, 2015, and had not otherwise contacted the Tribunal.

14On December 21, 2015, I issued a Decision, which dismissed the Application. The reasons for the dismissal were set out in paras. 13-15:

In the circumstances, the applicant is deemed to have abandoned the Application. More than two and a half years have passed since the last hearing date, and the applicant has not met either the Tribunal’s deadline to file a psychiatrist’s report or his own self-imposed deadlines to file the report. It seem obvious that he has other priorities in his life, specifically obtaining residency and living in the United States, which are more important to him than pursuing his human rights Application in Ontario.

Furthermore, the Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See section 40 of the Code and Rule 1.1 of the Tribunal’s Rules of Procedure. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated at paras. 4-7:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

I have extended significant leeway to the applicant with respect to the time line to see a psychiatrist and file a report because his conduct at the hearing may have been disability-related, and he was, according to his counsel, impecunious. However, the applicant’s failure to file a psychiatrist’s report cannot continue indefinitely. The alleged incidents of discrimination occurred in 2010 and 2011, and, in my view, it has now reached the point where it is manifestly unfair to the respondents to have these allegations hanging over their heads for years with no end in the sight. In these circumstances, it would not be fair, just and expeditious to allow the Application to continue.

15On December 23, 2015, the applicant filed a letter, which attached a copy of a psychiatrist’s report dated November 20, 2015, and indicated that he intended to file a Request for Reconsideration of the Tribunal’s Decision

16On January 13, 2016, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

ANALYSIS

17Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.

18Rule 26.5 of the Tribunal’s Rules states that reconsideration will not be granted unless the Tribunal is satisfied that:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

19The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states: “Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO.”

20In the Request for Reconsideration, the applicant’s indicated that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 a) and d). First, he stated, the Tribunal’s view that he had shown little interest in advancing the adjudication of his Application and had abandoned his rights was not reflective of the facts because it omitted the fact that the Tribunal had imposed a tight timeline on him to file a psychiatrist’s report, which was onerous and could not be met. Second, he stated, the Tribunal contributed to the delay because, having recognized that he had a limited ability to pay to see, and obtain a report from, a psychiatrist, it initially did not impose a strict deadline on him. He stated that after a deadline was imposed, he made efforts to secure an affordable psychiatrist. Third, he stated, his counsel received the psychiatrist’s report on December 4, 2015, and erred by not filing it with the Tribunal. He stated that the Tribunal should forgive this oversight because no prejudice will result to the respondents. Fourth, he stated, the Tribunal’s failure to rule on his June 29, 2015 request for an extension of time of 60 days for him to see a psychiatrist was a breach of procedural fairness. Fifth, he stated, the Decision dismissing the Application was contrary to s. 43(2) of the Code and Rule 3.5 of the Tribunal’s Rules, which provide that an Application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions.

21I disagree. To start out with, the psychiatrist’s report that was filed on December 23, 2015 is not compliant with the directions in my June 6, 2013 CAD. For this reason alone, the Request for Reconsideration is denied.

22The report states that during the hearing before the Tribunal in 2013, the applicant had depression, which included the symptom of being very irritable, but then goes on to make the following factually incorrect statements:

[The applicant] probably was unfairly judged in terms of his functioning, not taking into account that he was depressed, and not the same person as he usually was. Apparently, he was interviewed by some police officers, and as you are well aware, this period of time was a very difficult time for him, and just the idea of police officers interviewing him, would upset him.

23During and following the 2013 hearing, there was no judgement about the applicant’s functioning that failed to take into account that he was depressed. The Tribunal and the parties’ counsel, including the applicant’s counsel, agreed that the applicant was unable to function during the May 7, 2013 and June 3, 2013 hearing dates, and there was recognition by the Tribunal and the parties’ counsel, including the applicant’s counsel, that the applicant’s behaviour may be related to a mental health issue or a disability. Furthermore, the applicant was never questioned by police officers during the hearing. Rather, he was cross-examined by counsel for the Toronto Police Services Board. The psychiatrist appears to have solely relied upon what the applicant told him, and did not take into account the facts set out in my June 6, 2013 CAD, which is not compliant with the directions that I issued.

24The report then goes on to state:

Mental examination revealed a man of Jamaican background, pleasant and cooperative. There was no suicidal ideation or homicidal ideation or attempts. There was no evidence of thought or perceptual disorder. He was oriented in all spheres. His memory seemed to be intact. He appears to be of average to bright average intelligence. Judgement was intact.

The DSM 5 at this time is a mild generalized anxiety disorder.

Based on what Mr. Rose told me, it seemed quite obvious that he was very depressed and was a different person than he presents today.

25Again, this is not compliant with my June 6, 2013 CAD, which directed that the psychiatrist’s report must address the applicant’s behaviour during the May 7, 2013 and June 3, 2013 hearing dates, whether he is medically able to participate in the hearing in a manner which is courteous and respectful of the Tribunal and other participants, and whether he has any disability-related needs that need to be accommodated during the hearing, and, if so, what accommodations the psychiatrist believes are required. None of these points were specifically addressed in the report.

26The report concludes by stating: “I feel potentially that this man is able to be gainfully employed in a capacity as a police officer.” Again, this is not compliant with my June 6, 2013 CAD. My direction was not to file a psychiatrist’s report which addresses whether the applicant is able to be employed as a police officer again. Rather, my direction was to file a psychiatrist’s report which addresses the applicant’s capacity to participate in the hearing.

27In view of the fact that the applicant has still not filed a psychiatrist’s report that is compliant with the directions in my June 6, 2013 CAD, there is no basis to reconsider the Tribunal’s Decision dismissing the Application.

28That said, I will also address the applicant’s specific arguments for reconsidering the Decision. I disagree that the Tribunal deemed the applicant to have abandoned his Application because he did not meet the June 30, 2015 deadline to file a psychiatrist’s report. The Tribunal deemed the applicant to have abandoned his Application because on December 21, 2015, which was more than two and a half years after the last hearing date and nearly five months after the June 30, 2015 deadline, he had not met either the Tribunal’s deadline to file a psychiatrist’s report or his own self-imposed deadlines to file the report.

29I also disagree that the Tribunal’s (alleged) contribution to the delay should be taken into account. The applicant’s argument is that by not initially imposing a strict deadline on him to see a psychiatrist and file a report, the Tribunal contributed to the delay. He stated that after a deadline was imposed, he made efforts to secure an affordable psychiatrist. The record before me certainly indicates that prior to the imposition of a deadline, and particularly after he moved to the United States, there were long stretches of time when he took no steps to see a psychiatrist and file a report. However, I cannot see how this argument supports him because it implies is that it was the lack of a deadline, rather than impecuniosity, which resulted in him not filing the report in a more timely manner. Initially, the Tribunal did not impose a strict deadline on him because of representations from his counsel that he was impecunious.

30I also disagree that the Tribunal should forgive the applicant’s counsel oversight in failing to file the psychiatrists’ report in a timely manner because no prejudice will result to the respondents. In my Decision, I made a finding that because the alleged incidents of discrimination occurred in 2010 and 2011, it had reached the point where it was “manifestly unfair” to the respondents to have these allegations hanging over their heads for years with no end in the sight. There is no basis to reconsider this finding, particularly in view of the fact that the applicant has still not filed a psychiatrist’s report that is compliant with the directions in my June 6, 2013 CAD.

31I also disagree that the Tribunal’s failure to rule on the applicant’s counsel June 29, 2015 request for an extension of time of 60 days for the applicant to see a psychiatrist was a breach of procedural fairness. If I had denied his request and then dismissed the Application before 60 days had passed, there may have been a basis for this argument. However, I did not, and, as the Decision indicated, I had extended the applicant significant leeway with respect to the timeline to see a psychiatrist and file a report.

32I also disagree that the Decision dismissing the Application was contrary to s. 43(2) of the Code and Rule 3.5 of the Tribunal’s Rules, which provide that an Application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions. During the October 10, 2014 Conference Call, the parties made oral submissions about a number of issues, including what steps the Tribunal should take as a result of the events during the hearing, and the failure, to date, of the applicant to file a psychiatrist’s report. The respondents specifically requested that the Application be dismissed if the applicant failed to meet a deadline to file the report, and the applicant opposed the request.

33Accordingly, I am not satisfied that there are there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier, or that other factors exist that outweigh the public interest in the finality of the Decision.

ORDER

34The Request for Reconsideration is dismissed.