Amazan v. Toronto Catholic District School Board, 2016 HRTO 971

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Felix Amazan Applicant

-and-

Toronto Catholic District School Board, Norma Rios, and Sylvie Talarico Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: July 22, 2016 Citation: 2016 HRTO 971 Indexed as: Amazan v. Toronto Catholic District School Board

WRITTEN SUBMISSIONS

Félix Amazan, Applicant Self-represented

Toronto Police Service Board, Affected Party Ansuya Pachai, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of race, colour, ancestry, place of origin and ethnic origin.

2The applicant is an elementary school teacher employed by the respondent school board (the “Board”). Following a summary hearing, the Tribunal dismissed all but one of the applicant’s allegations. See 2014 HRTO 751. The Application continues against the remaining respondents regarding an incident that occurred on March 6, 2013 between the applicant and the individual respondent Norma Rios. Ms. Rios reported the incident to the police and the applicant was charged with a criminal offence. The charge was later withdrawn. The applicant alleges that the respondents falsely accused him of workplace violence based on racist misperceptions.

3On May 24, 2016, the applicant filed a Request for an Order During Proceedings seeking production of documents from the respondents (the “first request”). On May 25, 2016, the applicant filed a Request for an Order During Proceedings seeking production of documents from the respondents and the Toronto Police Service Board (the “TPSB”) (the “second request”). The respondents did not file a response to the requests and the time for doing so has passed. The TPSB filed a late response to the second request on June 13, 2016. The TPSB filed a separate request seeking an extension of time to file its response to the second request and to “validate” or accept the response despite the delay in filing it. The applicant appears to oppose the TPSB request and submitted that the Tribunal should sanction the respondents and the TPSB under Rule 5 of the Tribunal’s Rules of Procedure for failing to respond to his request as stipulated under Rule 19. The Tribunal routinely grants short extensions to deadlines and I see no reason not to grant the TPSB’s request to extend the deadline for its response or to disregard the TPSB’s submissions for a short delay. Parties are not required to respond to requests for orders and there is no basis for applying Rule 5 in this instance.

4In the first request, the applicant seeks production of several e-mail messages related to the incident in question in this Application. The applicant also requests that the respondents provide explanations for certain actions and to identify which of the Board’s employees asked the police to check the applicant’s criminal record. The applicant seeks particulars regarding a conversation between the individual respondent, Ms. Talarico, and Corrado Maltese, the Board’s Coordinator of OHS, on March 6, 2013, which is referred to in Ms. Talarico’s notes. The applicant also seeks particulars regarding a conversation between the individual respondent, Ms. Talarico, and Suzy Kawasaki, the Board’s Supervisor of Conflict Resolution, which the applicant states is also referred to in Ms. Talarico’s notes. Review of the notes, however, reveals no reference to such a conversation.

5In the second request, the applicant requests that the TPSB provide a clearly written copy of Detective Constable Beveridge’s handwritten notes (Detective Constable Beveridge dealt with Mr. Rios’ complaint to the police) because he cannot decipher some parts of it. The applicant also seeks explanations for some of Detective Constable Beveridge’s notes and for her actions recorded in the notes. The applicant also requests that the TPSB identify Board employees who advised Ms. Rios to call the police and to provide explanations for the acts of some Board employees.

6The TPSB submitted that the applicant’s request in effect is challenging the adequacy of the police investigation and making allegations of discrimination against the police. The TPSB noted that it is not a respondent in this Application and that the allegations against it were dismissed following a summary hearing. The TPSB submitted that the police investigation is irrelevant to the issues in dispute in the Application and that much of the request is simply argumentative. The TPSB submitted that Detective Constable Beveridge’s notes are entirely legible and noted that the applicant quoted from them extensively in his request. The TPSB further submitted that much of what the applicant seeks is not in its possession, custody or control.

Analysis and Decision

7At 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. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute.

8The e-mail messages the applicant identified in the first request, if they exist, are all related to the incident in question in this Application. Accordingly, these messages are arguably relevant and should be disclosed. I note that the respondents have not complied with their obligation to disclose arguably relevant documents, pursuant to Rule 16.1. Most of the applicant’s requests consist of demands that the respondents or the police provide explanations or reasons for actions or decisions related to this Application. Unlike the discovery process in civil proceedings, the Tribunal’s pre-hearing procedures do not require the parties to answer questions or provide explanations in advance of a hearing. Consequently, there is no basis to require the respondents or the TPSB to provide reasons or explanations as the applicant has requested. The TPSB is also not a party to this Application and its actions are not relevant. Detective Constable Beveridge’s notes are an arguably relevant document and they do seem quite legible. On the other hand, there is no basis to question the applicant’s statement that he cannot decipher all of the notes. In the circumstances, the simplest procedure is to have the TPSB provide the notes in a clearer format. In my view, the conversation between Ms. Talarico and Mr. Maltese appears to be sufficiently particularized in the Response.

Order

9The Tribunal orders as follows:

1. Within 14 days of the date of this Interim Decision, the respondents shall comply with their obligations under Rule 16.1 to disclose arguably relevant documents;

2. Within 14 days of the date of this Interim Decision, the respondents shall produce to the applicant the e-mail messages identified in the first request and any other e-mail message related to the incident of March 6, 2013 between the applicant and Ms. Rios;

3. Within 21 days of the date of this Interim Decision, the TPSB shall transcribe (i.e., have typed) Detective Constable Beveridge’s notes identified in the second request and provide a copy of the transcription to the applicant.