Ontario (Human Rights Comm.) v. O.T.F. (No. 2)
1989-02-16
Ontario Board of Inquiry
Margaret Tomen and Linda Logan-Smith
Complainants
v.
Ontario Teachers' Federation (OTF) and Ontario Public School Teachers' Federation (OPSTF)
Respondents
The Federation of Women Teachers' Association of Ontario, the Ontario English Catholic Teachers' Association, the Ontario Secondary School Teachers' Federation and l'Association des enseignantes et des enseignants franco-ontariens
Interveners
Before: Ontario Board of Inquiry, D. J. Baum
Comm. Decision No.: 354B
Appearances by: Anne Molloy and Sharon Ffolkes-Abrahams, Counsel for the Canadian Human Rights Commission
R. G. Juriansz, Counsel for the Complainants and for the Ontario Public School Teachers' Federation
Thomas Forbes, Counsel for the Ontario Teachers' Federation
Elizabeth Lennon and Mary Eberts, Counsel for the Federation of Women Teachers' Association of Ontario
Paul Cavalluzzo, Counsel for the Ontario English Catholic Teachers' Association
Maurice A. Green, Counsel for the Ontario Secondary School Teachers' Federation
Sean A. McGee, Counsel for l'Association des enseignantes et des enseignants franco-ontariens
BURDEN OF PROOF — obligations of complainants and respondents — EVIDENCE — expert evidence — PARTIES — order of appearance
Summary: This is a second interim decision regarding procedures of the Board of Inquiry hearing the complaints of Margaret Tomen and Linda Logan-Smith alleging that a by-law of the Ontario Teachers' Federation discriminates against them because of their sex.
The Board of Inquiry decides on the order of appearance of the parties and interveners, the onus of proof on the complainants and respondents, procedures regarding expert evidence, and hearing dates.
Cases Cited
Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 132 D.L.R. (3d) 14, 3 C.H.R.R. D/781: 22
Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321, 64 N.R. 161, 7 C.H.R.R. D/3102: 23
Legislation Cited
Human Rights Code, 1981, S.O. 1981, c. 53, s. 13: 15, 17–22, 26–8
1Two days, January 16 and 17, 1989, were set aside for what amounted to a pre-hearing conference, almost all of which was placed on the record. The conference was preceded by substantial communications between the parties, a point which I encouraged so that to the extent possible, there might be agreement as to many of the several preliminary issues in dispute. In the result, only one day was needed for the parties to present the issues then agreed upon and the others remaining in dispute. The purpose of this second interim award is to finalize those rulings necessary for the matter to proceed to hearing. That which follows are my rulings and, where necessary, my reasons relating thereto.
A. Intervener Status
2Intervener status was requested by l'Association des enseignants et des enseignants franco-ontariens. No objection was raised by any of the parties or interveners. Because of their interest in the issues raised by the complaint, I granted the requested intervener status with all the rights flowing to other interveners. Mr. Sean McGee is counsel to the Association.
B. Division of the Parties and Interveners: Order of Appearance
3There are two complicating factors under this head: (1) The parties and interveners in this proceeding are numerous. What should be the order of their presentation and questioning? (2) The same counsel, Mr. Juriansz, represents the respondent, the Ontario Public School Teachers' Federation (the "OPSTF") and the complainants. What should be the opportunity given counsel in the cross-examination of witnesses?
4(1) Mr. Juriansz suggested, and I agree, that there are essentially two sides to this matter: those who support the complaint, and those who are opposed to the complaint. Those who support the complaint are: the Commission, the OPSTF, the complainants, and the OSSTF. Those who oppose the complaint are the OTF, the FWTAO, OECTA and the AEFO.
5The Commission will proceed with the carriage of the complaint. It will be followed by Mr. Juriansz and the OSSTF. There will then follow those who resist the complaint. Between now and the first date of hearing, I will leave it to counsel resisting the complaint to agree and finalize among themselves about the order of presentation and cross-examination. However, once the order has been set, it shall not be changed unless for good cause shown. Finally, if those resisting the complaint are unable to agree among themselves as to the order of presentation and cross-examination, then the following preferences shall govern:
(a) The OTF shall have first preference as to where it wishes to place itself in the order of presentation and cross-examination. The reason for this is that the OTF is a named party respondent to the complaint.
(b) The FWTAO shall have second preference as to where it wishes to place itself in the order of presentation and cross-examination. The reason for this is that the FWTAO has an obvious, real and direct interest in the outcome of these proceedings.
6In the examination and cross-examination of witnesses in a proceeding such as this, there is, of course, the clear danger of repetitious questioning. In proceedings that are already protracted, everything possible should be done to expedite matters. Repetition should be avoided. Yet, at the same time, it may be necessary for counsel to lay foundations for questioning and, in this sense, repetition simply may not be avoided. The line to be drawn in the abstract is one of avoiding undue repetition. What this will mean as a practicality is quite another matter. Perhaps it is enough for me to caution counsel that I will be careful to avoid unnecessary repetition.
7(2) Ms. Molloy for the Commission spoke to the matter of the dual role of Mr. Juriansz in these proceedings. She stated:
As part of the Commission's case in chief, I will be calling a representative of [the OPSTF]. I intend to lead through that witness evidence of OPSTF dealings with the complainants and this by-law. I will also be putting to that witness what the position of OPSTF is — what I understand the position to be — and in fact it is a matter of record between the parties that OPSTF supports the complainants . . . I will ask OPSTF if they will consent to the orders being sought by the Commission. At that point, it will be our position that Mr. Juriansz is not entitled to cross-examine the witness from OPSTF.
Furthermore, throughout the rest of the hearing, Mr. Juriansz' position in terms of examining and cross-examining ought not to be any different by virtue of the fact that he acts for the OPSTF, so that he does not play both sides of the street, as it were. . . .
8Mr. Juriansz did not object to the position taken by Commission counsel, nor did the remaining parties and interveners. Accordingly, that is the position which I will adopt at the hearings on the merits.
C. Section 8 — Statutory Powers Procedure Act: Notice
9Questions were raised concerning application of s. 8 of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484 (the "SPPA"). All counsel agreed, and specifically those carrying the complaint, that there would be full compliance with the notice requirements of the SPPA. However, those carrying the complaint indicated that at the present time there was no evidence they intended to present that would fall within the ambit of s. 8.
D. The Nature of the Relief Sought
10Those opposing the complaint sought particulars concerning the nature of the relief sought by the Commission and by Mr. Juriansz. Commission counsel answered that its concern was not, as such, with the precise language of the OTF by-law. Rather, the Commission is seeking to remove the impugned effects of that by-law. Toward this end, the Commission will ask by way of relief for the following:
A declaration that the OTF by-law requiring OPSTF members to be male violates the Human Rights Code;
An order that OTF amend the by-law in a manner that will permit women to join OPSTF;
An order that OPSTF admit the complainants, Ms. Tomen and Ms. Logan-Smith, as members and in the future admit all qualified women;
Support for a general damage award on behalf of the complainants if any is sought by them.
11Mr. Juriansz, speaking for the complainants, agreed at the hearing to particularize within two weeks from that date the relief he will seek. That statement was provided by letter to all counsel on January 30, 1989. In it Mr. Juriansz stated:
The complainants will request that the Board award the following relief:
a finding that [the impugned by-law] By-Law No. 1, subsections 2(a) and 2(c) are null and void because they contravene the Ontario Human Rights Code;
An order that OTF cease applying By-Law No. 1, subsections 2(a) and 2(c);
an order that OTF and OPSTF admit Margaret Tomen, Linda Logan-Smith, and any other female public elementary teacher whose application for full membership in OPSTF had been denied by OTF in reliance on subsection 2(a) and 2(c) of By-Law No. 1, to full membership to OPSTF immediately.
an order that OTF compensate each of Margaret Tomen and Linda Logan-Smith in the amount of $1,500.00.
12Those supporting the complaint have indicated on the record that no relief is sought against any affiliate other than the OPSTF. Specifically, no order preventing the FWTAO from excluding men from membership is sought.
13I made it clear to counsel that once the statements concerning the relief sought had been presented they would remain fixed unless there were strong reasons for modifying this position which were not known to counsel at the time the statements were submitted. The positions concerning relief requested are now before all counsel.
14I believe that relief which is sought by those supporting the complaint is reasonably clear. However, if during the course of the hearing there is reason to believe that those responding to the complaint are unable to understand or be responsive to the relief being sought, should the complaint be sustained in relevant part, then I will ask counsel supporting the complaint for the appropriate clarification, and I will provide full opportunity for reply.
E. Onus, Section 13: Human Rights Code, and Expert Evidence
15Substantial issues were raised that centred around onus, the role of s. 13 of the Human Rights Code, and expert evidence. Commission counsel argued that to establish a prima facie case, she was required to do the following:
The prima facie case goes first. As part of its prima facie case the Commission will call the complainants to establish the facts that are in the complaint, that is, that they applied for membership in the OPSTF and were denied membership, and that the general structure of OTF prevents them from full membership in OPSTF. Evidence will also be called with respect to the general organization of OTF, although we will make attempts to try to get an agreed statement of facts with respect to these matters.
If we cannot do that, we will lead the evidence of how OTF operates, and I guess there will be an historical component to that, how it was set up and so on. We will also, as I have already indicated, call OPSTF to clarify for the record their involvement in the complaints, and also their position with respect to the complainants' allegations.
Once we have established that the complainants were denied membership or full membership in OPSTF, that, in my submission, is all of the evidence necessary to establish a prima facie case of a contravention of the Code. If no defences were raised at all, that would be sufficient to justify an order from this Board.
16All counsel opposing the complaints take strong exception to this. They argue: (1) Those supporting the complaints would be splitting their case. It is clear that s. 13 of the Human Rights Code concerning special programs for disadvantaged persons to achieve equal opportunity will form a vital part of the case. And, in this regard, expert evidence will be called. Those supporting the complaints would be in the position of being able to cross-examine one set of experts, and then to mount experts of their own with no corresponding right on the other side to call reply evidence. Mr. Forbes, counsel for the OTF, stated:
[I]f the plaintiffs have the plan of dumping enough evidence or adducing sufficient evidence to raise a prima facie case with the idea in mind of calling the substance of their evidence after hearing the evidence of the defendants, then . . . I wish to advise them at this time that we will be taking the position that that type of evidence in reply, which ought to have been subject to your ruling, adduced as part of the plaintiff's case, will not be admissible at that time.
So I would ask my friends . . . to take into consideration, when assuming their obligations with respect to a prima facie case, so that we do not find ourselves regretfully, after a number of months and days, in an argument about whether someone has split his case. [sic] In my submission, it is the obligation of the plaintiffs to adduce all of their evidence in support of their position and not to wait until after the defence, which they know is coming, is adduced, and then to call the evidence in reply.
17(2) In any event, those opposing the complaints take the further position that a necessary part of the complaints themselves is s. 13. Putting it somewhat differently, Ms. Lennon, counsel for the FWTAO, stated:
We do not see s. 13 as being an exception to the general non-discrimination provisions but as being a statutory direction as to how to interpret what really is discrimination and what really is equality. . . . In that sense, and I think this submission is supported by the [Human Rights] Code, we do not see s. 13 as functioning as a defence in the same way that reasonable accommodation may be a defence.
Section 13(1) simply makes the categoric statement that a right under Part I is not infringed by the implementation of a special program designed to [relieve] hardship or economic disadvantage. . . . We . . . take the position that in a case of this nature, s. 13, is, indeed, part of the Commission and the complainants' cases in chief. There are substantial structural differences between the function of an affirmative action program under s. 13 and a reasonable accommodation defence under s. 10, and particularly under subsection 10(2).
18Mr. Cavalluzzo, counsel for the OECTA, endorsed Ms. Lennon's argument and he went one step further: he stated that as a matter of discretion in terms of an expedited hearing process, the Commission should be required to set out what it will prove, including any expert evidence, in relationship to s. 13. Mr. Cavalluzzo stated:
It seems to me that the prima facie case that must be established must take into account s. 13. So the Commission with . . . the full resources of the state behind it, should come forward with the adjudicated facts . . . [and] at the same time its expert evidence regarding that very crucial issue in s. 13 which, . . . is not new to the Commission as far as this particular case is concerned . . .
That, in my view, apart from the . . . interpretation of the Code is also the most expeditious way to proceed. Otherwise we are going to have a true tennis game here, where team two [those opposing the complaints] will be replying to the rebuttal of team one [those in support of the complaints].
19Commission counsel clearly stated that she understands much of the defence to the complaints is s. 13-related. She argued, however, that her approach was designed to avoid case-splitting:
Now s. 13 will involve showing, first of all, that there is a special program in place; secondly, that the special program was designed to assist a disadvantaged group . . . Thirdly, they will have to establish that the group being protected actually is a disadvantaged group. Those are the elements of s. 13.
I would expect that there will be some straightforward factual evidence called with respect to the s. 13 defence. As Mr. Forbes [counsel for OTF] stated, I would expect that there will be some historical evidence, and I would expect that there will be some expert evidence in the nature of experts on education, perhaps union-organizing experts, and perhaps sociological experts on feminist theory.
As I have said before, I am speculating on what the defences will be . . . Our submission will be that once that evidence is in, we will be in a position to know what we need to put in . . . to rebut that.
I will have the right, of course, to cross-examine those witnesses. It may be the case that, having heard their evidence, and having cross-examined their witnesses, we will not be calling any expert evidence at all. It may be the case that the expert evidence will not be particularly contentious, so that a decision can be made by simply waiting. I do not know that now. What we are saying is that we cannot and should not be required to call evidence . . . anticipating what the s. 13 defence will be.
Now my friends have said I am trying to split my case. In fact, what I am trying to do is to prevent that from happening. If I guess at what their s. 13 defence is going to be by looking at the affidavit material that was filed in the court, and I anticipate their defence . . . and call experts or other witnesses to rebut in advance their evidence before it is presented, and then, when the respondents present their s. 13 case and I find that it has a twist that I had not anticipated, I am then in the position where I must recall witnesses that I have already been through.
That is splitting the case. I am calling somebody at the beginning to give some of the evidence and then, in response to what I have heard, I call him again to give some more . . . I should not be permitted to do that. . . .
My friends have suggested that what I am doing is depriving them of a right to reply. I am not. Once the onus shifts, so does the order of counsel. When the onus shifts over to the respondents to establish their defence, they call in evidence which they say will establish that defence on a balance of probabilities. I have a responsibility to rebut it. The onus shifts to me to do so. If I raise matters that they had not anticipated or could not have covered in their case in chief, then they have the opportunity to ask you for the right to call reply evidence. Since they have the primary onus, they ought to have that right of reply, in the appropriate case, if it is truly evidence that they could not have anticipated.
20While Mr. Juriansz agreed with the comments of Commission counsel, he emphasized that the issue of onus need not be resolved at this point in the proceedings. Indeed, to do so would be for the Board of Inquiry to make an "abstract ruling." In the result, those involved in this proceeding as to the matters of onus, the role and application of s. 13, and matters of proof relating to expert evidence act at their peril. This is a position with which Mr. Green for the OSSTF and Mr. Forbes for the OTF both agree. Mr. Juriansz stated:
We propose to prove that the complainants were excluded from full membership in occupational associations because of their sex. . . . Once we have done so, we close our case at our peril. You may be faced at that point with an application to dismiss the complaints in that they have not been established. At that point, we will rely on the decision of the Supreme Court of Canada in the Borough of Etobicoke Case [Ontario Human Rights Commission v. Borough of Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 3 C.H.R.R. D/781] [which will be discussed shortly].
That makes it clear that, once we have proved exclusion from an occupational association because of sex, the complainants will be entitled to relief in the absence of justification. So, if the respondents at that point decline to call evidence . . . they do so at their own peril. At that point it would seem to us that the law is clear, the Etobicoke rule is clear, and so we anticipate that they would call evidence. When they have closed their case, it would then be open to us [those supporting the complaints] . . . to argue that they have not established a defence, and we can choose to call evidence in reply or not. . . .
So at further points in this hearing there will be a requirement for a ruling on a particular motion based on the evidence that is in the record at that point. A ruling at this point would be abstract and helpful, but is, in our view, unnecessary.
21I quite agree with the comments of Mr. Juriansz: it is not necessary for me to rule at this point on the issues of onus, the role and application of s. 13, and the presentation of expert evidence. Such a ruling would be anticipatory. The facts are not before me and, while those opposing the complaints have indicated that much of their evidence is known to the Commission, the reality is that that evidence has not been produced in this proceeding. Moreover, there is absolutely nothing preventing those opposing the complaints from eliminating or modifying what they referred to as the affidavit evidence before the court. Finally, any ruling might indeed be moot. As Commission counsel indicated, it may well be that no expert evidence will be called. The Commission and those supporting the complaints simply may be satisfied with what will be produced in cross-examination.
22Yet, having said this, I think it important for all counsel to have what must be characterized as preliminary thoughts only concerning the issues raised. They might be of some help in planning case presentation and more importantly ensuring that the hearing proceeds with expedition and that I receive all the relevant evidence necessary to make a decision on the merits. In this regard, I will divide my comments into three parts: (1) general rules relating to burden of proof; (2) the place of s. 13 of the Human Rights Code in relationship to such rules; and (3) the need for a full opportunity for reply.
(1) GENERAL RULES RELATING TO BURDEN OF PROOF
23In my view, the general rules relating to burden of proof as applied to the Ontario Human Rights Code have been laid down by the Supreme Court of Canada in Ontario Human Rights Commission v. The Borough of Etobicoke, supra. At paras. 6892–6893, the Court stated:
The case at bar involves complaints of discrimination in respect of employment on account of age. It was common ground that the compulsory retirement at age sixty constituted a refusal to employ or continue to employ the complainants. While discrimination on the basis of age is in terms forbidden by in [sic] s. 4 of the Code, in accordance with ss. (6) an employer may discriminate on that basis where age is a bona fide occupational qualification and requirement for the position or employment involved. Where such a bona fide occupational qualification and requirement is shown the employer is entitled to retire employees regardless of their individual capacities, provided only that they have attained the stated age. It will be seen at once that under the Code non-discrimination is the rule of general application and discrimination, where permitted, is the exception.
Once a complaint has established before a board of inquiry a prima facie case of discrimination, in this case proof of mandatory retirement at age sixty as a condition of employment, he is entitled to relief in the absence of justification by the employer. The only justification which can avail the employer in the case at bar, is the proof, the burden of which lies on him, that such compulsory retirement is a bona fide occupational qualification and requirement for the employment concerned. The proof, in my view, must be made according to the ordinary civil standard of proof, that is upon a balance of probabilities. [Emphasis added.]
24Such is the so-called rule in Etobicoke. There can be no question that this constitutes [a] clear holding on the part of the court. Its context was explained by the court in Re Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321, 64 N.R. 161, 7 C.H.R.R. D/3102 at D/3108. The holding was applied not only in cases of direct discrimination, but also in cases of adverse effect discrimination. The court stated:
To begin with, experience has shown that in the resolution of disputes by the employment of the judicial process, the assignment of a burden of proof to one party or the other is an essential element. The burden need not in all cases be heavy — it will vary with particular cases — and it may not apply to one party on all issues of the case; it may shift from one to the other. But as a practical expedient it has been found necessary, in order to insure a clear result in any judicial proceeding, to have available as a "tie-breaker" the concept of onus of proof. I agree then with the board of inquiry that each case will come down to a question of proof, and therefore there must be a clearly-recognized and clearly-assigned burden of proof in these cases as in all civil proceedings. To whom should it be assigned? Following the well-settled rule in civil cases, the plaintiff bears the burden. He who alleges must prove. Therefore, under the Etobicoke rule, as to burden of proof, the showing of a prima facie case of discrimination, I see no reason why it should not apply in cases of adverse effect discrimination. The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer. Where adverse discrimination on the basis of creed is shown and the offending rule is rationally connected to the performance of the job, as in the case at bar, the employer is not required to justify it but rather to show that he has taken such reasonable steps toward accommodation of the employee's position as are open to him without undue hardship. It seems evident to me that in this kind of case the onus should again rest on the employer, for it is the employer who will be in possession of the necessary information to show undue hardship, and the employee will rarely, if ever, be in the position to show its absence. The onus will not be a heavy one in all cases. In some cases it may be established without evidence; for example, a requirement that all employees work on Saturday in a business which is open only on Saturdays, but once the prima facie proof of a discriminatory effect is made it will remain for the employer to show undue hardship if required to take more steps for its accommodation than he has done. In my view, the board of inquiry was in error in fixing the commission with the burden of proof.
25In my view, at this stage of the proceedings, it is enough to say that I will be guided by what the Supreme Court of Canada has stated in Etobicoke and in Simpsons-Sears. In this regard, it cannot be said that the Commission "splits" its case when it proceeds to establish fully that which is required for a prima facie case. The fact that the Commission may have a reasonable basis for knowing what those opposing the complaints will argue in their defence is not the same thing as knowing fully and in fact what will be proved. To require the Commission to mount a reply in anticipation of what will be proved by those opposing the complaint is not necessary to the proof of the Commission's prima facie case.
(2) THE PLACE OF SECTION 13 IN THE HUMAN RIGHTS CODE
26Those opposing the complaints, as noted, argued that s. 13 of the Human Rights Code should be integrated into what the Commission must prove as part of its prima facie case. I summarized their views earlier in this interim award.
27At this point, it is enough to say that I find no basis either in law or in fact to treat s. 13 in a manner other than as a defence to proof of a prima facie case on the part of the Commission. I believe that Commission counsel fully and effectively responded to such an argument:
Section 13 starts out with the provision, "A right under Part I is not infringed by the implementation of a special program. . . ." If you look at s. 16 of the Code relating to handicap you will see that "A right of a person under this Act is not infringed for the reason only that the person is incapable of performing. . . ." Section 15 [of the Code provides] "[a] right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship . . . is a requirement."
Section 23 of the Code, which is the reasonable and bona fide occupational qualification section that we dealt with in the Borough of Etobicoke case starts out, "The right under s. 4 to equal treatment with respect to employment is not infringed where the discrimination is for reasons of certain provisions, and is a reasonable bona fide qualification because of the nature of the employment."
All of these provisions are structured in the same way: "The Code is not violated," "The Code is not infringed where" — and then it is set out.
In this case, "the Code is not infringed where," and there are those requirements for a special program under s. 13. My friend sought to distinguish s. 10, which is the constructive discrimination section, but [it] is in fact structured the same way. It starts out a little differently because it says, "A right . . . is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons," but then goes on to say, "except where the requirement, qualification or factor is reasonable and bona fide."
So it is infringed except where it is reasonable and bona fide, which is exactly the same thing as saying it is not infringed where it is reasonable and bona fide. Structurally s. 13 is in the same position as all of the other defences we have referred to . . .
There is no authority whatsoever, anywhere, for requiring the Commission to call as part of its prima facie case evidence that goes to rebut a defence. . . . The prima facie case is created if you show a violation of a right guaranteed by Part I [of the Code]. The Commission can rest its case there and an order will follow unless the respondent offers some defence. . . .
28On the facts, there was no indication that the Commission either had approved or had in some other way passed upon a special program within the meaning of s. 13. That is, there was no evidence presented to me which allowed for a finding at this point that in some way the Commission had structurally set certain criteria or impliedly approved of such criteria to the special program alluded to by those opposing the complaints. I was told only that the Commission was aware of the special program and the rationale that went into its establishment and continuance. Such general statements are hardly enough to convert what the Code so clearly embodies as a defence into an element which the Commission is required to prove as part of its prima facie case.
29In closing this section of the pre-hearing order, I think it important to emphasize that it is my intent to hear all of the relevant evidence necessary for an informed decision. If it should come to pass that in their reply those supporting the complaints raise unforeseen matters not covered in the defence in chief, there will be afforded to those opposing the complaints a limited further right of reply.
F. Order of Procedure: Expert Evidence
301. Those supporting the complaints have indicated that they do not intend to call expert evidence to establish their prima facie case. If there should be a change in that regard, then I order that those supporting the complaints provide two months' notice of the following kind to the other side prior to the start of the hearings: that notice shall indicate whether the evidence will be in written form or vive voce. It shall also state who will be giving that evidence and that person's credentials. Finally, there shall be provided a summary of the evidence to be given. If no objection is raised within one week from such submission by any of the parties or interveners, a copy of the summary shall be forwarded to me.
312. At the January 16 hearing, it was suggested that either all or a great deal of the expert evidence relative to s. 13 presently is included in the record before the Court of Appeal. To the extent that any of the parties or interveners intend to rely on such evidence, they shall so indicate within one month of the first day of hearing by giving notice to all parties and interveners. That notice shall specifically reference the cited material, and it shall contain a summary of what is contained in such material. If within one week from the date of such notice no objection is raised by any of the parties or interveners, a copy of the summary will be forwarded to me.
323. From what I was told at the January 16 hearing, it is likely that the evidence referred to under point two of this heading will be led by those opposed to the complaints. It will probably relate to the background and rationale for the s. 13 program. To the extent that such evidence is presented (again, I am referring to evidence that already is a matter of record before the Court of Appeal), I will require those supporting the complaints to do the following:
a. Within one week following the submission of the evidentiary notice noted above, there shall be an indication as to whether expert evidence will be called in reply.
b. If expert evidence is to be called in reply, those supporting the complaints should indicate the source of such evidence, the credentials of the person(s) providing testimony, and a summary of the evidence likely to be led.
334. It is anticipated that those opposing the complaints will complete their submissions by July 14, 1989. By July 17, 1989, aside from the record of evidence noted under point 3 of this head, those in support of the complaint shall notify those opposed to the complaint if they intend to call further expert evidence in reply. The notice shall comport with the requirements set out under point 1 of this head.
G. Hearing Dates
34At the hearing, I encouraged counsel to discuss among themselves and agree upon dates for hearings. I cautioned, however, that it is my intent to proceed in a timely manner. There was discussion and correspondence between counsel and with me following the January 16 hearing. Agreement as to a hearing schedule was reached, and that agreement is now included as part of this order:
May 30, 31, June 1, 2
Those supporting the complaints will present their evidence.
June 12 to 16
OTF will respond.
June 26 to 30
AEFO and OECTA will respond.
July 10 to 14
FWTAO will respond.
July 24 to 28
Reply and closing arguments will be presented.
The above-stated provisions constitute my order in this matter.