Moffatt v. Kinark Child and Family Services (No. 3), 1996 CanLII 20014

Moffatt v. Kinark Child and Family Services (No. 3)

1996-10-31

BOARD OF INQUIRY (Human Rights Code)

IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended;

AND IN THE MATTER OF the complaint by James Moffatt dated November 26, 1991, alleging discrimination in employment on the basis of sexual orientation and handicap;

BETWEEN:

Ontario Human Rights Commission

• and -

James Lawrence Moffatt Complainant

• and -

Kinark Child and Family Services Harry Oswin Respondents

INTERIM DECISION

Adjudicator: Katherine Laird Date: October 31, 1996 Board File No.: BI-0056-95 Decision No.: 96-036-I

APPEARANCES

Ontario Human Rights Commission Ena Chadha, Counsel

James Lawrence Moffatt, Complainant Brian Kelsey, Counsel Eric Gillespie, Counsel

Kinark Child and Family Services, Respondent Brian Mulroney, Counsel

Harry Oswin, Respondent Brian Mulroney, Counsel

On October 15, 1996, this proceeding was reconvened to hear two preliminary motions. The complainant brought a motion for an order amending his complaint to add two allegations not set out in the original complaint filed with the Ontario Human Rights Commission ("Commission"). The Commission supported the complainant's motion and brought its own for an order allowing the evidence of one of its witnesses to be given by electronic means. The respondents opposed both motions. This is my decision on the two preliminary issues.

Amendment of the Complaint

The complainant sought to amend the complaint to add:

1. an allegation that the respondents had infringed his right under s. 7 (now s. 8) of the Human Rights Code ("Code") to claim and enforce his rights under the Code without reprisal;
2. an allegation that the respondents had discriminated against him on the basis of family status.

Counsel for the complainant submitted that the jurisprudence clearly established that the Board has the jurisdiction to amend a referred complaint by adding new allegations in appropriate circumstances: Cousens v. Canadian Nurses Association (1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365 (Ont. Bd. of Inq.); Tabar and Lee v. Scott and West End Construction (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 (Ont. Bd. of Inq.); Barnard v. Fort Frances Board of Police Commissioners (1986), 1986 CanLII 6526 (ON HRT), 7 C.H.R.R. D/3167 (Ont. Bd. of Inq.); Entrop v. Imperial Oil Ltd. (No. 3)(1994), 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186 (Ont. Bd. of Inq.)). Relying on the cases cited, counsel argued that the Board should exercise its discretion to amend the complaint if satisfied that the respondents had adequate notice of the allegations to be added, and of the factual basis for the allegations. In his submission, amendment of the complaint would not result in any prejudice in this case as the respondents had known of the issues raised by the proposed amendments since even before the complaint was filed with the Commission. In arguing that the issues of reprisal and family status had been raised by the complainant during the Commission's investigation of the complaint, counsel relied on correspondence, notes and various memorandum prepared by the parties between September 1991 and January 1996.

Counsel for the respondents did not dispute the jurisdiction of the Board to make the amendments. He acknowledged that his clients had notice of the factual issues relating to the allegations, and would not be prejudiced significantly by the amendments sought. However, counsel argued that the motion should be denied due to the failure of the complainant to support the motion with vive voce or affidavit evidence. Further, with respect to the reprisal issue, the Board was urged to decline to exercise its discretion to amend because, in counsel's submission, the documents relied upon demonstrated that there was no possibility of a finding in favour of the complainant in respect of the amendment sought. In these circumstances, counsel argued, it would be unfair to the respondents to allow the allegation of reprisal to be added to the complaint.

I am satisfied that I have jurisdiction to make the order sought and that this is an appropriate case for an order amending the complaint. I note that the Code provides that it is the "subject matter of the complaint (s. 36(1), formerly s. 35(1)), and not the specific allegations that are referred to the hearing panel, and further, that the task of the hearing panel is to determine if "a right of the complainant under the Act has been infringed" (s. 39(1), formerly s. 38(1), emphasis added), not necessarily the right alleged to be infringed in the complaint. Where, before the commencement of the hearing on the merits, a complainant seeks to add an allegation of infringement which arises out of the same factual circumstances relied upon in the original complaint, amendment of the complaint may be appropriate provided that the respondent has had adequate notice of the allegation to be added, and the supporting particulars. It is in the interest of all parties that all issues arising out of an alleged act of discrimination be dealt with in one proceeding without the necessity of filing a second complaint. I note, however, that an application such as this, which seeks to add to the complaint an allegation of which the respondent has had notice, is quite different from the situation in which a complainant requests the opportunity to prove a ground of discrimination alleged in the original complaint but which the Commission has declined to include in its referral to the Board of Inquiry.

I find that there is no need for vive voce or affidavit evidence to support the motion. The tribunal has the authority to admit documents into evidence which have not been proven under oath or affirmation: s. 15(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended. In this case, the complainant is relying on the documents solely for the purpose of establishing that the respondents had notice of the allegations to be added and the supporting particulars. The authenticity of the documents was not disputed and, with one possible exception, all of the various documents relied upon by the complainant came to the attention of the respondents during the course of the Commission's investigation or by disclosure subsequent to referral of the complaint to the Board of Inquiry in June 1995. In these circumstances, the tribunal can appropriately rely on these documents for the purpose of determining whether or not there was adequate notice. It is clear from the documents taken as a whole that the issues of reprisal and family status were raised by the complainant, and brought to the attention of the respondents, at various stages throughout the process. Although it is of course possible, as suggested by respondent counsel, that the evidence at the hearing will not establish a sufficient factual basis for the allegation of reprisal, it would be premature to make such a determination at this stage in the hearing.

Finally, I note that all of the parties agreed that the factual issues related to the amendments are intertwined with the evidence to be led in respect of the other grounds raised by the complaint, with the result that the hearing will not be lengthened by allowing the amendments.

Evidence by Electronic Means

The Commission sought an order to allow one of its witnesses, currently residing in Germany, to testify by speaker telephone. The witness is reluctant to travel to Toronto to testify, in part because she has a child under one year of age. The Commission asked that the Board to consider the lost time, expense and inconvenience to the witness, as well as the cost to the Commission of bringing the witness to Toronto in these times of fiscal restraint.

The respondents raised a number of objections to the motion. Relying on s. 5.2 of the Statutory Powers Procedure Act, counsel argued that the wording of this section, added in the 1995 amendments to the Act, required an "all or nothing approach to electronic hearings; that is, a hearing must be electronic in its entirety, or not at all. This interpretation was discussed in legal commentary brought to my attention by respondent counsel. ( See for example, Cowan, J., "Recent Amendments to the Statutory Powers Procedure Act", CBAO Continuing Legal Education, April 12, 1996 at p. 5). Further, it was submitted that s. 5.2(1) required tribunal rules as a pre-condition for electronic hearings, and that Rule 40 of the Board of Inquiry Interim Rules of Practice was inadequate for that purpose. Rule 40 was characterized as a bald statement without sufficient content to support an authority to hold electronic hearings.

Finally, counsel submitted that his clients would be prejudiced if the evidence of this witness was taken by electronic means, and relied on s. 5.2(2) which provides that a tribunal shall not hold an electronic hearing if satisfied that "significant prejudice" is likely. In arguing that his client would suffer prejudice, counsel noted that credibility was a significant issue with respect to the testimony of this witness, and stated that he would be calling three witnesses to refute her evidence. He also raised the possibility that practical and technical difficulties would undermine his ability to conduct a full cross-examination of the witness. In this regard, he cited the possibility of disconnections, and of problems in administering the oath, in identifying the witness and in ensuring the availability of all relevant documents.

I do not accept the "all or nothing" interpretation of s. 5.2(1) of the Statutory Powers Procedure Act. Section 5.2 was added to the legislation as part of an omnibus bill aimed at improving the efficiency of the various public services: Preamble, Statute Law Amendment Act, S.O. 1994 c.27 It cannot have been the intention of the legislature to enact a provision which would undermine the long-standing practice of many tribunals, including the Board of Inquiry, to allow part of a hearing to be conducted by telephone conference call or speaker telephone in appropriate circumstances.

In my view, the language of the statute supports my interpretation. The relevant sections of the Act are:

s. 1(1)

"electronic hearing" means any hearing held by conference telephone or some other form of electronic technology allowing persons to hear one another; "hearing" means a hearing in any proceeding; "proceeding" means a proceeding to which this Act applies;

Section 5.2:

(1) A tribunal may hold an electronic hearing in a proceeding, in accordance with its rules made under section 25.1. (2) The tribunal shall not hold an electronic hearing if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice. (3) Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters. (4) In an electronic hearing, all the parties and the members of the tribunal participating in the hearing must be able to hear one another and any witnesses throughout the hearing.

Although it would have been clearer if s. 5.2(1) had specified that any part of a hearing could be conducted electronically, in my view, the word "hearing" is meant to include any part of the whole proceeding in which evidence and submissions are received. This is supported by the definition of "hearing" in s. 1(1) of the Act, which speaks of "a hearing" in the proceeding, thus suggesting that there could be more than one hearing in a proceeding. Section. 5.2(3) supports this interpretation by providing that procedural matters can be dealt with electronically even if there is a likelihood that one party would suffer significant prejudice as a result. Subsection (3) only makes sense if read as making an exception in respect of that part of the hearing which deals with procedural matters. When the section is read as a whole, it becomes apparent that subsection (1) should not be taken to require that the entire hearing be conducted electronically if any part of the hearing is to make use of electronic technology.

I now turn to the argument that Rule 40 of the Board of Inquiry Interim Rules of Practice is not sufficient authority to support an order allowing evidence to be taken electronically. Rule 40 is subject to s. 5.2 of the Statutory Powers Procedure Act and provides that:

A panel may, at its discretion and without the consent of the parties, receive evidence or submissions electronically or in writing during the course of the hearing.

I acknowledge the submission of respondent counsel that this rule could be expanded to give direction over matters such as the identification and swearing-in of witnesses testifying by telephone. Adding such detail to the rules would serve to further define the process, but might do so at the expense of accessibility. It is perhaps true that the longer and more complex a set of procedural rules is, the less useful it will be to the community served, particularly unrepresented parties. The purpose of these rules, as stated in the introductory section, is to serve the Board's goal of ensuring a fair, accessible and efficient hearing process. The rules, which are interim only and currently under revision, were introduced as a guide to practice before the Board, not a comprehensive code. This is underlined by Rules 4 and 6. Rule 4 provides that the Board may issue practice directions which would serve to supplement the Rules; Rule 6 provides that a panel may waive or vary the application of the Rules.

In my view, Rule 40 is an adequate foundation for my authority to allow evidence and submissions to be received electronically, pursuant to s. 5.2(1) of the Statutory Powers Procedure Act. It is up to each individual hearing panel to make any additional directions as may be necessary to ensure that the process for receiving electronic evidence is a fair one in each particular case. The legislation should not be interpreted to make the use of electronic technology dependant upon the sufficiency of a tribunal's rules of practice. On this point, I was persuaded by the discussion in Macaulay and Sprague, Practice and Procedure Before Administrative Tribunals. section 21A.5(a) at 53 to 56.

The final issue with respect to this motion is the question of prejudice. I acknowledge that there are particular difficulties associated with the receiving of evidence by telephone, and that several potential problems have been identified in the submissions of respondent counsel. In my view, however, the interests of all the parties may be affected detrimentally by the use of the telephone for this witness. I recognize that there is a danger that the effectiveness of cross-examination may be affected, but this is also true of examination-in-chief.

The respondents have not met the test of establishing "significant prejudice". The inconvenience to the witness, and the costs of attendance in this particular case, are of sufficient weight to justify an order allowing her evidence to be taken by speaker telephone. I note that the weight to be attached to her evidence may be affected by her absence in person, and that this issue can be addressed in final submissions. In order to minimize the difficulties which could be associated with the use of electronic technology, I ask that all counsel confer on the process to be followed in arranging for this witness to testify, and that the Deputy Registrar be consulted. If necessary, a conference call can be scheduled to allow' me to consider whether specific directions are necessary in relation to the process to be followed. I expect the Commission to take responsibility for ensuring: that the appropriate technology is in place; that all parties have copies in advance of any notes upon which the witness may rely; that the witness has unmarked copies of any documentary evidence to which she will be referred.

Dated at Toronto this 31st day of October, 1996:

"Katherine Laird"

Katherine Laird Member, Board of Inquiry