HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Free
Applicant
-and-
Municipality of Magnetawan and Richard Smith
Respondents
A N D B E T W E E N:
David Free
Applicant
-and-
Municipality of Magnetawan and Jeffery Rochwerg
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Free v. Magnetawan (Municipality)
WRITTEN SUBMISSIONS
David Free, Applicant
Self-represented
Municipality of Magnetawan, Richard Smith and Jeffery Rochwerg, Respondents
M. Elizabeth Keenan and Jeff Rochwerg, Counsel
1This Interim Decision addresses the applicant’s request to adjourn the preliminary hearing scheduled for June 20, 2016. It also addresses several other requests made by the parties and identifies additional legal issues to be dealt with in the preliminary hearing.
applicant’s Adjournment request
2By Case Assessment Direction, the Tribunal directed that a preliminary hearing be held to determine whether the Tribunal should dismiss the Application on the basis that the substance of the Application has already been dealt with in another proceeding.
3By letter dated May 3, 2016, the applicant requested an adjournment of the preliminary hearing due to an aggressive and debilitating medical condition. He indicated that he is awaiting surgery but does not yet know when the surgery will be done nor how long it will take him to recover from the surgery. The applicant did not attach a medical note from his doctor to support his statement that he is medically incapable of taking part in the preliminary hearing due to his medical condition.
4On or around May 10, 2016, the applicant filed three other Applications with the Tribunal alleging a failure to provide reasonable accommodations for his disability in relation to a hearing/mediation that was held on May 9, 2016. One of the three Applications is against the Municipality of Magnetawan and its counsel. The applicant enclosed a note from his optometrist dated May 5, 2016 with one of the two other Applications he filed on May 10, 2016. In the note, the optometrist stated that the applicant was diagnosed with advancing cataracts and is awaiting cataracts surgery. Further, he stated that “[i]t is reasonable that David’s reduced vision with his cataracts should be taken into consideration with respect to reading print that is smaller than 20/60 (1.25 M or equivalent 12 pt font.)”
5In my view, the applicant has not provided sufficient medical documentation to support his request to adjourn the preliminary hearing. As far as I am aware, all of the materials filed in this case use at least 12 pt. text size. If there are any documents with a text size below 12 pt., the applicant may enlarge the documents in question or request an enlarged copy from the respondents or Tribunal.
applicant’s request for production and particulars
6The applicant has requested that the respondent produce certain materials and particulars. Rule 16 of the Tribunal’s Rules of Procedure sets out a timeframe for the disclosure and production of documents by the parties in cases that proceed to a hearing. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case. As a result, the applicant’s request for production and particulars is premature. He may renew his request at the appropriate time.
additional issues to be dealt with in preliminary hearing
Respondent’s request to remove personal respondent
7Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
8The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
9In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
10The parties may make submissions on whether Richard Smith should be removed as a personal respondent if Application 2010-04514-I, or any portion of it, proceeds to a full merits hearing.
Whether May 10, 2016 Application falls outside the Tribunal’s jurisdiction
11The Applicant’s May 10, 2016 Application (File No. 2016-24294-I) relates to a hearing and/or mediation that took place on May 9, 2016 regarding legal costs relating to the civil proceeding between the parties. The respondents named in the Application are the Municipality of Magnetawan and Jeffrey Rochwerg. The Municipality of Magnetawan was a party opposed to the applicant in the civil proceeding and Mr. Rochwerg is one of the Municipality’s counsel.
12It appears that Application 2016-24294-I falls outside the Tribunal’s jurisdiction on the basis that it does not relate to a social area covered by the Human Rights Code (“Code”). The applicant alleged discrimination with respect to “goods, services and facilities”. However, it does not appear that the relationship between him and the respondents at the May 9, 2016 hearing/mediation falls under this social area.
13The Tribunal has stated many times that the relationship between a lawyer and an opposing party is not covered by the Code because there is no service relationship between them. See Belso v. York Regional Police, 2009 HRTO 757, and Cooper v. Pinkofskys, 2008 HRTO 390. It also does not appear that the Municipality of Magnetawan was in a service relationship with the applicant during the May 9, 2016 hearing/mediation.
14The parties will be asked to make submissions on this issue at the preliminary hearing.
Respondent’s request for vexatious litigant declaration
15The respondent has requested that the Tribunal declare the applicant to be a vexatious litigant. The adjudicator assigned to conduct the preliminary hearing may also hear the parties’ submissions on this issue at the preliminary hearing.
applicant’s intended witnesses
16The applicant has indicated that he intends to call a former part-time resident of Magnetawan at the preliminary hearing. It does not appear that this intended witness will have any relevant evidence to provide in relation to the issues being dealt with in the preliminary hearing. The issues being dealt with at the preliminary hearing are all legal issues on which the parties must make submissions.
17The first issue to be dealt with in the preliminary hearing is whether the substance of the Application was appropriately dealt with in the civil proceeding between the parties. This is a legal issue in which the Tribunal must apply the following factors set out in the Supreme Court of Canada’s decisions in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19:
a. whether there was concurrent jurisdiction in the other proceeding to decide human rights issues;
b. whether the previously decided issues were essentially the same as what is being complained of to the Tribunal; and
c. whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it; and
d. whether it would be unfair to use the results of the proceeding to dismiss an Application.
18The other issues to be dealt with in the preliminary hearing are also strictly legal issues on which the parties must make legal submissions. It does not appear that the applicant’s intended witness will have any direct knowledge that is relevant to the legal issues being dealt with in the preliminary hearing. As such, the adjudicator assigned to the preliminary hearing will address this issue at the outset of the preliminary hearing.
Additional Applications filed by applicant
19I am aware that the applicant has filed a further application alleging reprisal by the Municipality of Magnetawan. This Application is currently being processed by the Tribunal. The adjudicator assigned to conduct the preliminary hearing may exercise his discretion to address this additional Application as well as any other Applications filed by the applicant prior to the preliminary hearing.
ORDER and directions
20The Tribunal orders and directs as follows:
a. The applicant’s request to adjourn the June 20, 2016 preliminary hearing is denied.
b. The applicant’s requests for production and particulars are dismissed as premature.
c. The preliminary hearing will address the two additional issues identified above: (1) whether Richard Smith should be removed as a personal respondent if Application 2010-04514-I, or any portion of it, proceeding to a full merits hearing and (2) whether Application 2016-24294-I falls outside the Tribunal’s jurisdiction on the basis that it does not relate to a social area covered by the Code.
d. The adjudicator assigned to the hearing may also hear submissions in relation to whether the Tribunal should declare the applicant a vexatious litigant.
e. The adjudicator assigned to conduct the preliminary hearing will also determine whether it is appropriate to hear any oral testimony in relation to the legal issues being dealt with in the preliminary hearing.
f. The Registrar shall send a copy of Application 2016-24294-I to counsel for the respondents in Application 2010-04514-I.
21I am not seized of these Applications.
Dated at Toronto, this 25th day of May, 2016.
“Signed by”
Jo-Anne Pickel
Vice-chair