Worrell v. City of Ottawa, 2016 HRTO 689

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ricardo Worrell

Applicant

-and-

City of Ottawa

Respondent

INTERIM DECISION

Adjudicator: Jennifer Khurana

Date: May 19, 2016

Citation: 2016 HRTO 689

Indexed as: Worrell v Ottawa (City)

WRITTEN SUBMISSIONS

Ricardo Worrell, Applicant

Chantal Tie, Counsel

City of Ottawa, Respondent

David Patacairk, Counsel

1This is an Application filed pursuant to section 34 of Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in goods, services and facilities because of race, colour, ancestry, place of origin and ethnic origin.

2This Interim Decision determines, among other things, a Request for an Order During Proceedings (“applicant’s Request”), in which the applicant seeks an order for production by the respondent of a number of materials. It also addresses the parties’ request for an adjournment and the respondent’s Request for an Order During Proceedings (“respondent’s Request”).

PROCEDURAL BACKGROUND

3On April 28, 2016, the Tribunal issued a Case Assessment Direction (CAD) directing that a case management conference be held to address any outstanding production issues and to consider the parties’ positions on a revised timeline for disclosure under Rules 16 and 17. The CAD also extended the respondent’s time for filing a Form 11 response to the applicant’s Request and denied the parties’ adjournment request. The Tribunal further directed the respondent to file the respondent’s Request for production of the applicant’s workplace documents by May 9, 2016.

4The case management conference held on May 13, 2016 addressed three issues:

a. The applicant’s Request;

b. The respondent’s Request; and

c. The parties’ disclosure obligations and request that they not be required to call evidence during the scheduled hearing dates.

The applicant’s Request

5The applicant’s Request, filed April 8, 2016, seeks, among other things, an order for production by the respondent of a number of documents and materials. Schedule A to the applicant’s Request lists the 9 categories of documents he seeks. The applicant had requested these documents from the respondent in correspondence dated February 8, 2016 and in two letters dated March 23, 2016.

6The respondent responded to the applicant’s Request on May 9, 2016. Counsel for the applicant confirmed at the case management conference that she is satisfied with the response on some issues but continues to seek production of the following documents:

a. Category 1: Copies of all witness statements, notes of interviews or other material provided by the City of Ottawa staff to the Ottawa Police Service on December 12, 2014;

b. Categories 3, 4, 5: Anonymized copies and/or a summary of all Trespass to Property Notices issued and Accident, Injury and Workplace Illness Reports related to all incidents where the police were called to protect staff for the past 3 or 5 years, detailing the nature of the incident, the description of the person involved including race and gender, and whether the Trespass to Property Notice was served on the person; and

c. Category 7: Video recording of the applicant’s allegedly “aggressive behaviour” said to have occurred on December 11, 2014 which is referenced in the Rule 16.1 disclosure.

Category 1:

7The respondent is not in possession of the first category of materials. The respondent agrees that these materials are arguably relevant. Counsel for the respondent estimates these documents would take a week or two at most to obtain should the Tribunal order third party production by the Ottawa Police Service (the “police”).

8On March 23, 2016 counsel for the applicant wrote to respondent counsel following up on her February 8, 2016 production request. She indicates that she sent a Freedom of Information Request to the Ottawa Police Service regarding the police investigation of the incident and provided a copy of the disclosure she received from the police as part of the applicant’s Rule 16.1 disclosure. The police advised the applicant that they could not disclose the witness statement of the respondent’s employees without the consent of the individuals who provided those statements.

9I agree with the applicant that the requested materials are arguably relevant and this is not disputed by the respondent. I find it appropriate to make a third party production order of the materials listed in Item 1 in this case. Even though the parties have not served the third party with the Request for production, the parties have advised that the Ottawa Police Service consents to the production of these documents. In the future, the parties are reminded that they should deliver and file a timely Request for production with respect to the third party.

10I am ordering that the Ottawa Police Service produce copies of all witness statements, notes of interviews or other material provided by the City of Ottawa staff to the Ottawa Police Service on December 12,2014. These materials are to be produced at the latest by May 27, 2016. The parties are responsible for providing this order to the third party and should provide the third party contact information to the Tribunal within three days of receipt of this Interim Decision.

11If the Ottawa Police Service has not in fact consented to this production order, then it need not comply but must file submissions with the Tribunal by May 27, 2016 explaining its position on this issue.

Categories 3, 4 and 5:

12As the respondent indicated in its response to the applicant’s request, it does not have the information requested in these categories for the years prior to 2015. At the case management conference counsel for the applicant asked that the Tribunal order production of the paper files of all reports and Trespass to Property Notices in these categories. She argues that these materials are relevant to establish the type of activity that typically warrants a permanent ban on access to City of Ottawa property. She submits that this information is relevant in establishing that the Trespass to Property Notice issued against the applicant is inconsistent with outcomes in other cases. Absent another reason, the Tribunal could draw an inference that action was taken in the applicant’s case by virtue of his membership in a group protected by a Code ground.

13The applicant alleges the respondent discriminated against him when staff of the respondent’s Kanata Client Service Centre called the police to escort him out of the building after he was confronted by a staff member. He also alleges that the respondent discriminated against him by issuing trespass notices that indefinitely prohibit him from entering into any of its Client Service Centres. The applicant submits that he was treated this way because of his race.

14The respondent opposes this request. Counsel for the respondent indicates that he is not sure whether, or where this information could be obtained for 2014 or prior. He notes that even were he to obtain the requested data, the City does not track information such as race or gender. He submits the information sought by the applicant amounts to a “fishing expedition” as it does not relate to the incident involving the applicant or to any of the other individuals involved. The respondent included in its Response to the applicant’s Request that 32 Trespass to Property Notices have been issued to date in 2016, and that 44 were issued in 2015, excluding public libraries and other properties governed by their local boards.

15The applicant’s Request for the disclosure of Items 3, 4 and 5 is denied. I agree with the respondent that this request is overly broad and constitutes a “fishing expedition”. In my view, it is entirely speculative that there is any utility to the production of these documents. The Tribunal has a mandate to adjudicate applications in a fair, just and expeditious manner. In considering requests for production the Tribunal must also apply the principles of proportionality. The applicant did not provide the Tribunal with caselaw supporting its position that the Tribunal order production for a request of this nature and breadth.

16At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns; see McKay v. Toronto Police Services Board, 2009 HRTO 1220 (“McKay”). The requesting party has the onus of establishing that documents are arguably relevant. While “arguable relevance” may not be a high onus, there must be a link between the materials that are sought and the allegations made in the application. A link may be established if the information requested could be used to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. See McKay, above, at para. 13.

17I acknowledge that there may be instances in which the comparative experiences of others can be relevant to a complaint of individual discrimination. Yet I find the applicant’s request speculative as he is merely hoping that the records he wants to review will provide something useful to assist in the presentation of his case. The applicant submits that the anonymized reports and summaries of incidents and surrounding circumstances could prove that he was treated as an outlier, or that he was treated more harshly than others because of his race. The treatment of other individuals against whom Trespass to Property Notices were issued or involving incidents where police were called will provide little guidance as to whether discrimination motivated the decision to call the police or to issue the Notice in the applicant’s case. I will not order production on this basis at this stage, and do not find the reasons provided by the applicant set out a sufficient foundation for the request.

Category 7

18In its Response to the applicant’s Request, counsel for the respondent indicated that he has provided the video of the events of December 12, 2014 to the applicant on two occasions. Counsel for the applicant confirmed that she has in fact requested production of the allegedly aggressive behaviour displayed by the applicant for the previous day, namely December 11, 2014, referenced in the Response.

19Counsel for the respondent acknowledged this was an error on his part and endeavoured to provide the requested video as soon as possible if available.

The respondent’s request

20The respondent filed its own Request on May 9, 2016 seeking production of a number of the applicant’s workplace records. At the case management conference, counsel for the applicant confirmed that the applicant consents to producing the materials requested by the respondent. She confirmed she would not be filing a Form 11 Response to the respondent’s Request and would require a week or more to produce the materials.

Conduct of hearing

21This matter is scheduled for hearing in Ottawa on June 1 and 2, 2016. There are a number of outstanding issues and production requests and I agree with the parties that the hearing on the merits cannot proceed on the scheduled dates.

22I also agree with the applicant that he will require time to review the requested materials and to prepare. I note that the applicant has been requesting production of these materials since February 8, 2016. I acknowledge that respondent counsel encountered unforeseen emergency circumstances giving rise to the delay in responding to the applicant’s Request and the delay in filing the respondent’s Request. However, as of the date of the case management hearing, the applicant was still not in possession of a number of relevant documents and the parties have not met their Rule 16 and 17 disclosure obligations.

23The parties advised that they agree to participate in mediation/adjudication on June 1, 2016, and as such the hearing date shall be used for that purpose and the June 2, 2016 hearing date is cancelled. The parties should be prepared to make their opening submissions on June 1st if directed by the Tribunal.

24If the parties are not able to resolve the matter on June 1, 2016, the Application will proceed to be scheduled for a hearing.

ORDER

25The Tribunal orders:

a. The Ottawa Police Service is ordered to produce to the parties, with a copy to the Tribunal, by May 25, 2016 :

i.all witness statements, notes of interviews or other material provided by the City of Ottawa staff to the Ottawa Police Service on December 12, 2014. In the event that the Ottawa Police Service does not have the records related to the December 12, 2014 incident or objects to the production on the basis that it has not consented they must make submissions of this in writing to the Tribunal, with a copy to the parties.

b. The applicant’s Request to order production of documents in categories 3, 4 and 5 listed above is denied;

c. The respondent is to provide a copy of the requested videotape set out in Item 7 above within three days of the date of his Interim Decision or to confirm in writing to the applicant and to the Tribunal that these materials are not available;

d. The hearing scheduled for June 1, 2016 in Ottawa is cancelled and will be used for mediation/adjudication by the parties;

e. The June 2, 2016 hearing date is cancelled.