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 Francis Omoruyi-Odin dated December 12, 1995, alleging discrimination in employment on the basis of race, colour, ancestry and ethnic origin.

B E T W E E N :

Ontario Human Rights Commission

- and -

Francis Omoruyi-Odin

Complainant

- and -

Toronto District School Board

Respondent

_____________________________________________________________________________

INTERIM DECISION

_____________________________________________________________________________

Adjudicator : Mary Anne McKellar

Date : November 26, 2002

Board File No: BI-0354-00

Decision No : 02-021-I

Board of Inquiry (Human Rights Code)

505 University Avenue

5th Floor, Toronto ON M5G 2P3

Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946

TTY: (416) 314-2379 / 1-800-424-1168

A P P E A R A N C E S

Ontario Human Rights Commission ) Raj Dhir

Francis Omoruyi-Odin, Complainant ) Sheena Scott

Toronto District School Board, Respondent ) Carole Hoglund

INTRODUCTION

This decision deals with whether the Board of Inquiry (“BOI”) should qualify as experts two witnesses from whom the Commission and the Complainant proposed to proffer opinion evidence.

The decision also deals with the whether the BOI should engage a court reporter at its expense to record the balance of the proceedings.

THE PROPOSED EXPERTS

Dr. Paul R. Carr (“Carr”) was proposed by the Commission as “an expert in anti-racist education, discrimination in education and transformational change in educational institutions, specifically within secondary schools, to provide opinion evidence on anti-racist education with particular emphasis on the institutional culture and issues of under-representation of racial minority teachers and including systemic barriers to promotion for racial minority teachers”.

Dr. Wanda Thomas Bernard (“Bernard”) was proposed by the Complainant as “an expert in anti-black racism, human interaction and institutional culture to testify on the intersectionality of those three and related concepts, in particular to discuss:

• Anti-Black racism in Canada and its manifestations in the workplace

• The development and perpetuation of stereotypes and systemic barriers

• Stereotypes directed against African Canadian men

• Assessment of and solutions regarding workplace culture vis a vis the inclusion or exclusion of African Canadians in positions of responsibility

• The impact of systemic racism on the “dominant” group and on African Canadians

• The impact of allegations of discrimination on members of the “dominant group”

• The importance of having African Canadians in positions of responsibility.”

In both cases, the Toronto District School Board (“the School Board”) objected to their being so qualified.

THE COURT REPORTER ISSUE

Counsel for the Complainant wrote to the Chair of the BOI on August 20, 2002, requesting, among other things, that the hearings be transcribed. By letter dated August 29, 2002, the Chair responded to this issue by noting that the BOI’s Practice Direction #2 provided that “with the consent of the adjudicator and the other parties, any party may engage a court reporter to record and transcribe the hearing at his or her own expense” (emphasis in original). By Notice of Motion returnable November 4, 2002, the Complainant sought “an order that the BOI cause these proceedings to be transcribed by a Court Reporter (Verbatim transcription) at no cost to the Complainant”.

The Commission supported the Motion. The Respondent opposed it.

DECISIONS

At the conclusion of his testimony with respect to his expertise to provide the proposed opinion evidence, the BOI declined to qualify Carr and issued the following oral ruling:

The [BOI] considers four criteria in determining whether to admit proposed opinion evidence:

1. relevance;

2. necessity in assisting the trier of fact;

3. the absence of any exclusionary rule; and

4. proper qualification of the proposed witness.

Without commenting on any of the other criteria, the [BOI] finds that the proposed evidence of Dr. Carr does not satisfy criteria 1 and/or 2. Consequently, the [BOI] declines to qualify him to proffer opinion evidence. Complete reasons for the Board’s decision will be included in its final decision on liability.

At the conclusion of her testimony with respect to her expertise to provide the proposed opinion evidence, the BOI reserved on the issue of whether to qualify Bernard, and indicated that its decision and the reasons therefore would follow shortly. The Commission requested that the BOI consider including the reasons for its decision not to qualify Carr in its decision and reasons dealing with whether Bernard should be qualified.

The BOI subsequently reviewed Bernard’s testimony and advised the parties by letter dated October 25, 2002 that it declined to qualify her to proffer the proposed opinion evidence, indicating that its reasons would follow.

The BOI has reviewed the submissions of the parties with respect to the Complainant’s request that the BOI pay for the transcription of the balance of the proceedings. The Motion is dismissed.

The BOI’s reasons for each of these decisions is set out below following a brief overview of the nature of the dispute in this case and the history of the proceeding to date.

The Complaint was referred to the BOI on or about July 28, 2000. In accordance with the BOI’s usual practice, the proceeding commenced by way of a conference call, which was convened on September 25, 2000. At that time the Complainant was jointly represented by his own legal counsel, Andrew Pinto, and by counsel from the African Canadian Legal Clinic (“the ACLC”). The Commission and the Respondent (on behalf of itself and three personal respondents against whom the Complaint was subsequently abandoned) exchanged statements of facts and issues in the fall of 2000. Several additional conference calls were held, and a day of hearing was convened on November 9, 2000, following which the Complaint was amended to include allegations of reprisal, and then revised pleadings were exchanged. No pleadings were filed on behalf of the Complainant.

The Commission and the School Board proposed, and the Complainant consented, that the hearing be bifurcated and that the BOI deal separately with the issues of liability and remedy.

On March 20, 2001, the parties presented their opening statements and the BOI commenced its hearing of the evidence going to the merits of the case. At this point, the parties estimated that the hearing on the merits with respect to the issue of liability would take approximately 20 days, and 19 days were scheduled between March 20, 2000 and July 5, 2000, inclusive. It soon became clear that many more hearing days would be required to litigate this issue, and an additional 16 days of hearing were scheduled by notice dated July 9, 2000. Subsequently, by notice dated December 13, 2001, an additional 37 days of hearing were scheduled.

Mr. Pinto attended the hearing on behalf of the Complainant until the BOI was informed in October 2001, that the ACLC would henceforth be the sole counsel of record for the Complainant. At that point, the BOI had heard some 18 days of evidence (one of the original 19 scheduled days having been adjourned), comprising the complete examination of the Complainant. Since that time, Ms. Sheena Scott of the ACLC has attended the hearing on behalf of the Complainant. Another 31 days of actual hearing ensued (at least three more scheduled days having been lost to adjournments) prior to counsel’s making her request to the Chair that the balance of the hearing be transcribed. A further 5 days of hearing occurred (one day having been adjourned) before the Complainant’s counsel indicated at the conclusion of the qualification portion of Bernard’s testimony on October 9, 2002 that she intended to bring a motion respecting transcription to be heard in November. On November 1, 2002, a Notice of Motion was served and filed, returnable November 4, 2002. The Commission and the Complainant had previously stated that Carr and Bernard would be their final witnesses, so that realistically, any order that the proceedings be recorded would have resulted in the recording of the testimony of all of the Respondent’s witnesses, but the testimony of only the last witness called by the Complainant and Commission. That is still the situation because although the BOI has declined to hear from Carr and Bernard, the Commission and Complainant have now indicated their intention to call one further witness.

Following the hearing of the motion respecting the court reporter, the BOI entertained the Commission’s request that the balance of the four hearing days originally scheduled for the week of November 4, 2002 be adjourned. A partial adjournment was granted at the outset and a conference call convened at which the Commission renewed its adjournment request and provided further representations in support of it. In the end, none of the scheduled November 2002 dates were used for the hearing of evidence in this proceeding.

NATURE OF ISSUES IN DISPUTE

The Complainant is a black man who emigrated to Canada from Nigeria in 1973. He commenced his employment as a teacher with the former Scarborough Board of Education (“the Scarborough Board”) in 1977, and has been continuously employed by it or its successor, the School Board, since that time. All parties acknowledge that there are three aspects to his complaint: (1) He complains that he has been denied promotional opportunities because of his race, colour, ancestry and place of origin; (2) He complains that he was subject to reprisals as a consequence of initiating the complaint in December; and (3) He complains that the Scarborough Board systemically discriminated against African Canadians such as himself with respect to promotional opportunities, and that African Canadians were under-represented in positions of responsibility at the Board. The term “positions of responsibility” includes department heads and assistant department heads (both acting and permanent) and vice-principals and principals.

With respect to the first issue complained about, the Complaint refers specifically to events surrounding the Complainant’s appointment to and removal from a position as acting assistant head of business at Timothy Eaton Business and Technical Institute, as well as to his failure to secure that position on a permanent basis following a subsequent job competition. The Statement of Facts and Issues filed by the Commission focuses on these events as well in respect of the first aspect of the Complaint. The Complainant testified with respect to these matters as well as various other competitions for positions of responsibility in which he had been an unsuccessful candidate.

With respect to the second issue complained about, the parameters of this dispute have been outlined by the BOI in its decision dated November 14, 2000 in this matter. At the risk of generalizing, the Complainant alleges that, subsequent to his filing the Complaint against the Scarborough Board and several individual employees of it in late 1995, his conduct and performance as a teacher was subject to much closer and more formal mechanisms of scrutiny than had been employed previously, most of them effected by one particular vice-principal (not named in the initial Complaint). The BOI heard extensive evidence from the Complainant with respect to this issue.

With respect to the third issue complained about, the Complaint makes specific allegations with respect to the number of African Canadians in positions of responsibility at the Scarborough Board, and appears to suggest that African Canadians are under-represented and that this is symptomatic of a pattern of systemic discrimination. See paragraphs 1, 3, 4, 19 and 20 of the Complaint. These numbers are not reproduced or referred to in the Commission’s Statement of Facts and Issues filed with the BOI, however the Commission did note that the Complainant’s allegations that race was a factor affecting his promotional history required an “examination of the context and patterns in which the practices, procedures and hiring policies of the Scarborough Board are carried out”. In the course of the Complainant’s testimony and that of the other witnesses called by the Commission and Complainant to date, the BOI understands that these parties do indeed take the position that African Canadians were under-represented among those persons holding positions of responsibility at the Scarborough Board, and that such under-representation is indeed symptomatic of a pattern of systemic discrimination in promotion as against African Canadians. The Complainant and the Commission specifically indicated to the BOI (on June 21, 2001) that they do not take issue with the number of African Canadian classroom teachers employed by the Scarborough Board.

At the request of the Commission (and with the consent of the Complainant and no objection from the School Board), the BOI qualified Dr. Bobby Siu to provide opinion evidence with respect to the quantitative aspects of the alleged systemic discrimination. At the request of the Complainant, the Board also qualified Patrick Case (“Case”) (over the objections of the School Board) to provide opinion evidence with respect to “the analysis of and addressing of systemic barriers to the promotion of visible minorities, specifically African Canadians, and in that context, to review certain policies of the former Scarborough Board of Education and to discuss specific systemic barriers that exist and the role of policy development and implementation in eliminating those barriers”. In doing so, the BOI understood the Complainant to be taking the position that the Scarborough Board’s liability in this case might be founded on evidence that it failed to take pro-active steps to identify and remove systemic barriers to the promotion of African Canadians. Case is a former employee of the Toronto Board of Education (“the Toronto Board”) and he testified in part with respect to the measures that the Toronto Board took to identifying/removing barriers with respect to the recruitment/advancement of members of equity seeking groups (visible minority and aboriginal candidates, women and persons with disabilities).

During the course of the Complainant’s testimony, an issue arose with respect to the admissibility of certain evidence that might tend to establish that it is beneficial for visible minority (and perhaps particularly African Canadian) students to see visible minority (and African Canadian) teachers in positions of responsibility. This proposition may be succinctly referred to as relating to the “value of role-modelling”. In the hearing on May 15, 2001, the Respondent objected that the evidence was not relevant because it pertained to the interests of students rather than teachers. The Commission argued that the evidence spoke “directly to the contribution of black teachers to the school system” and was relevant. The BOI ruled that the evidence was not admissible as it was not relevant to any issue in dispute. On May 16, 2001, the School Board advised the BOI and the other parties that, in any event, it did not dispute that it was desirable for the teaching staff, including those occupying positions of responsibility to be reflective of the racial diversity of the student population. According to the notes of Commission counsel, counsel for the Complainant noted that concession, but indicated that he would still maintain that there were not enough African Canadians in positions of responsibility. When the BOI had occasion subsequently to refer to its notes relating to this exchange, those notes did not reflect the comments of Complainant’s counsel. In any event, the BOI subsequently heard evidence from several witnesses (including the Complainant, Harley Payne (December 5, 2001) and Lennox Borel (December 11 and 12, 2001)) concerning the percentage of secondary school students in the Scarborough Board who were African Canadian or members of other visible/racial minorities. In addition, some witnesses may have referred to the value of role modelling in their examinations in chief, but such evidence was certainly not extensive. Although no objection was made to its admission, these witnesses were also not cross-examined on this area of testimony.

With this background, the BOI now turns to address (1) the admissibility of the proposed opinion evidence, and (2) the request for a court reporter to be provided at the expense of the BOI.

CRITERIA FOR ADMITTING OPINION EVIDENCE

There was no dispute among the parties that the BOI may admit opinion evidence and has done so in a number of cases. See for example Kearney v. Bramalea Ltd., [1998] O.H.R.B.I.D. No. 21; Sinclair v. Morris A. Hunter Investments Ltd., [2001] O.H.R.B.I.D. No. 24.

There was also no dispute among the parties that in order to be admissible in a proceeding before the BOI, proposed opinion evidence must satisfy each of the four criteria set out in the oral ruling delivered with respect to Carr. These criteria were set out in the Supreme Court of Canada’s decision in R. Mohan, (1994) 1994 CanLII 80 (SCC), 89 C.C.C. 402, at p. 411, and considered and applied by the BOI in Ahmed v. 177061 Canada Ltd. (c.o.b. Shelter Canadian Properties Ltd.), [2002] O.H.R.B.I.D. No. 7.

With respect to Carr, the School Board objected that his proposed opinion evidence was not relevant or necessary to these proceedings.

With respect to Bernard, the School Board objected that her proposed opinion evidence was not relevant or necessary to these proceedings and that it had not been established that she possessed the necessary expertise to furnish such evidence.

With these criteria in mind, and having regard to the nature of the issues in dispute and the history of these proceedings to date, the BOI now turns to summarize briefly the proposed testimony of Carr and Bernard.

TESTIMONY OF CARR

Before summarizing Carr’s testimony, it may be useful to set out once gain the basis on which the Commission sought to have him qualified. Carr was proposed by the Commission as “an expert in anti-racist education, discrimination in education and transformational change in educational institutions, specifically within secondary schools, to provide opinion evidence on anti-racist education with particular emphasis on the institutional culture and issues of under-representation of racial minority teachers and including systemic barriers to promotion for racial minority teachers”. The primary focus of the evidence adduced in support of the request that he be qualified to proffer opinion testimony related to his academic study of the Toronto Board, to which the School Board is the successor.

Carr holds a Doctor of Education (Ed.D) degree from the Department of Sociology and Equity Studies in Education, Ontario Institute for Studies in Education (“OISE”) at the University of Toronto. The Ed.D. was conferred on him in 1996. OISE had previously conferred the degree of Master of Education (M.Ed) on Carr in 1992. Prior to that Carr had earned his MPA (Master of Public Administration) from Queen’s University in 1988, and his B.A. (Hons.) in Political Science from Glendon College, York University in 1987. From 1988 to the present, Carr has been employed in a variety of capacities with the Ministry of Education. Carr testified that his work with the Ministry from 1993 until 1996 focussed on issues related to the delivery of anti-racist education.

Carr’s Ed.D. thesis is entitled “Anti-Racist Education, Institutional Culture and the Search for Educational Transformation: A Case Study of the Toronto Board of Education’s Secondary Panel”. Although somewhat lengthy, the abstract of his thesis is worth quoting in full:

The issue of equity, in terms of accessibility, inclusivity, representation and outcomes, within a highly diverse society, especially as it relates to education, has become increasingly relevant over the past two decades. Understanding the social construction of identity, in addition to the heterogeneous nature of groups, has been deemed a key element to improving the education system. While a significant amount of theoretical and applied work has been undertaken on the significance of social class, ethnicity and gender in education, fewer detailed and comprehensive studies have been completed on the relevance of racial origin vis-à-vis education.

This thesis examines the manner in which a large, diverse, urban school board – the Toronto Board of Education (TBE) – has responded to racial diversity and anti-racist education from 1970 to 1995. The central focus, therefore, is on the institutional culture of the TBE: the myriad formal and informal practices, policies, programs and events which shape the day-to-day and long-term management and vision of the Board, from decision-making processes to the educational activities in the classroom.

A qualitative, applied approach based on an anti-racist education framework emphasizing critical pedagogy, is used to examine the secondary panel of the TBE. This approach aims to provide a forum for better understanding how inequitable power relations are perpetuated, and how educational systems respond to the needs and interests of marginalized groups. The research methodology involved two components: 1) one-on-one interviews with twenty-two key decision makers, six principals and seventeen racial minority teachers, in addition to a focus group discussion with five racial minority teachers; and 2) data gathered through three detailed questionnaires – one for principals, one a random sample survey for teachers, and the other being a targeted survey for racial minority teachers only – were provided by 5 principals, 60 White teachers and 35 visible minority teachers, all working in the secondary panel.

An analysis of the ways the institutional culture in education have marginalized racial minorities is provided by reviewing the conceptualization and implementation of employment equity in education, policy development in education, and multicultural education. Laying the groundwork for the research is an historical review of the implementation of the various overlapping components connected to equity in the TBE from 1970 to 1995.

The thesis has nine principal findings, which together indicate that, despite the leadership shown by the TBE over the past two decades, a coherent, effective equity strategy has been lacking. Further, it was found that the implementation of equity, and in particular anti-racist, initiatives has been wrought with a number of inconsistencies, underscoring the entrenched and systemic nature of the institutional culture. Despite having developed a cadre of committed and respected experts adept in the field of equity and organizational change, Board efforts aimed at inculcating equity seem to be largely isolated, often disconnected from the larger decision-making process.

While a number of White individuals within the Board have worked towards reforming the education system, a greater number do not seem to share the same strong views about racial inequities, and a third smaller group of Whites strongly opposes, and is resistant to, measures favouring anti-racist education. Conversely, the study found that racial minorities almost universally felt that racial inequities were a serious issue within the institutional and educational context. In sum, it is argued that these barriers perpetuated within the institutional culture serve to diminish the significance and quality of education for all students and others involved in the system.

The thesis shows how the structural barriers inherent in the secondary system prevent the full implementation of anti-racist education. The role of the principal is shown as being integral to the implementation of all equity initiatives. Concerning the institutional culture of the schools and the Board, the thesis documents how informal practices prevent policies from being effectively implemented. The thesis suggests potential reforms for the TBE, including the development of a long-term, broad-based equity strategy, which connects disparate needs and interests, and clearly articulates the objectives, monitoring procedures and accountability guidelines of any system-wide approach.

Carr attached as appendices to his thesis copies of the protocols he observed in his interviews with both key decision makers and principals with the Toronto Board. The protocols are substantially the same. Each includes a one-page introduction, followed by a series of questions. The second paragraph of the introduction reads:

The thesis involves examining the status, role and participation of racial minority secondary teachers in the TBE within the context of anti-racist education. For this phase of the interviews, I am interested in achieving a better understanding of how and why the Board’s anti-racist education strategy was and is developed, with a particular focus on the relevance and contribution of the racial minority teacher.

Of the questions set out in the protocols, only portions of the second and the fifth appear to be directed to any specific consideration of employment practices or employment equity initiatives:

2. Now I’d like to ask you about your overall perspective of racism and racial discrimination in the Board. As with most of the questions, please comment on only the time-period you are most familiar with.

a) How widespread is it?

b) Where is it most evident and pervasive?

c) What trends do you see regarding race relations in the Board?

d) How do the Board’s management and employment policies, programs and initiatives compare with those related to the educational and pedagogical practices concerning race? Is there a clear connection between the two?

5. Regarding racial minority teachers, how would you assess their importance and impact in the schools in influencing the school culture, the curriculum, students (i.e. as role models), school-community relations, etc.?

a) Is there a (significant) difference between racial minority teachers and White teachers? And between racial minority teachers of different races? To that end, is there, or do you think there would be, a difference between racial minority as opposed to White teachers?

b) How do issues related to language, gender, class and other forms of equity status come into play?

c) Does the heterogenous [sic] nature of racial minority groups pose a problem?

d) From your vantage point, how important were racial minority teachers considered to be with regard to the development of anti-racist education (policy)?

e) Some critics of employment equity have argued that it creates the doubt in the minds of non-equity members that merit is of little concern, and moreover that, those who have achieved high positions without such measures would be penalized and diminished. Some have also made the point that the colour of the teacher is of little importance; what counts is the quality of the education and the competency of the teacher. What is your opinion on this.

Finally, the sixth question invited the interviewees to comment on “what would you see as an ideal for the TBE regarding racial diversity and equity?”

The 10-page questionnaire distributed to principals for completion was accompanied by a covering letter indicating the purpose of Carr’s research:

This study will result in a more complete understanding of the development and implementation of anti-racist education, and may assist the Board and others in developing policy. The completed study will be shared with the Board and other interested parties.

Some questions in the questionnaire demand a narrative response, while others require the respondent to indicate on a numerical scale his/her level of agreement with the question or statement, and also include a space for comments. The following questions in this questionnaire appear to relate expressly to employment practices:

SECTION 3 THE ROLE OF THE PRINCIPAL IN ANTI-RACIST EDUCATION

10. Does the departmental structure of the secondary school system affect the implementation of anti-racist education, and how, in the following areas:

a. Hiring and promotion [numerical scale]

b. Budget [numerical scale]

c. Curriculum [numerical scale]

d. School activities [numerical scale]

SECTION 5 ANTI-RACIST EDUCATION AND TEACHERS

3. How important is race to the composition of your teaching corps? Why? [numerical scale]

4. What emphasis is now being put on the recruitment, hiring and promotion of racial (visible) minority teachers in your school? From your point of view, what are the effects? {numerical scale]

5. Do you feel that racial minority teachers face barriers that White teachers do not? Why? What are the barriers? [numerical scale]

SECTION 6 MISCELLANEOUS

2. Do you support legislated employment equity for racial minorities in the teaching profession? ( ) YES ( ) NO Why?

The covering letter that accompanied the questionnaire sent by Carr to the random sample of Toronto Board teachers is not appended to his thesis. What is appended, however, is a memo from the Toronto Board’s employment equity coordinator to all teachers who self identified to the Toronto Board as racial minorities inviting them to participate in Carr’s research and indicating that those who chose to participate would either be interviewed or would be asked to complete a questionnaire. This memo describes the nature of the research project as follows:

This study will provide a better understanding of the way institutional environments, in this case the Toronto Board, develop and implement strategies and policies related to race in an educational setting. This will also serve as a valuable planning tool for policy and program issues related to racial diversity in the Toronto Board of Education.

All teachers (both the targeted sample and the random sample) completed the same 8-page teacher questionnaire. The teacher questionnaire contained some similarities to the questionnaire completed by principals, and specifically addressed employment issues in the following questions:

SECTION 4 ANTI-RACIST EDUCATION AND TEACHERS

2. Would you agree that great emphasis is now being put on the recruitment, hiring and promotion of Racial (Visible) Minority teachers in your school. [numerical scale]

From your point of view, what are the effects? [narrative response]

3. Racial Minority teachers face barriers that White teachers do not. [numerical scale]

Why, and what are the barriers? [narrative response]

SECTION 6 MISCELLANEOUS

2. Do you support legislated employment equity for Racial Minorities in the teaching profession? ( ) YES ( ) NO Why? [narrative response]

Carr’s testimony suggested that his doctoral research rested on certain assumptions about the Toronto Board: that racial minority students were not reaching their full potential; that there were not enough racial minority teachers; that the Toronto Board had recognized these issues and developed policies to address them; and that those policies were not working. His project was to determine what prevented those policies from being more effective.

In the course of his cross-examination, Carr agreed that his doctoral research did not focus on employment issues, but rather that one element of anti-racist education is recognizing the pedagogical value of having teachers (and presumably persons in positions of responsibility and central administration as well) who are members of racial minorities. Even in the employment area, Carr did not focus on issues related to promotion. Carr also agreed that while the teacher respondents to his survey were asked to identify their racial background, he did not separately analyze the data relating to teachers who identified themselves as African-Canadian. Although he suggested in his examination in chief that his analysis could be extrapolated and applied to the Scarborough Board, on his cross-examination it was put to him that his lack of knowledge of the Scarborough Board prevented him from comparing it to the Toronto Board in terms of employment, and he replied:

I don’t think I would go that far. If presented with the data I think I could. The issue is not so much historical knowledge as having the tools to analyze it – you could have a historian who knows a great deal about the Scarborough Board, but does not understand systemic discrimination sufficiently to say whether it exists there or not.

TESTIMONY OF BERNARD

Once again, it may be helpful to repeat the basis on which the Complainant sought to have Bernard qualified prior to reviewing her evidence. Bernard was proposed by the Complainant as “an expert in anti-black racism, human interaction and institutional culture to testify on the intersectionality of those three and related concepts, in particular to discuss:

• Anti-Black racism in Canada and its manifestations in the workplace

• The development and perpetuation of stereotypes and systemic barriers

• Stereotypes directed against African Canadian men

• Assessment of and solutions regarding workplace culture vis a vis the

• inclusion or exclusion of African Canadians in positions of responsibility

• The impact of systemic racism on the “dominant” group and on African Canadians

• The impact of allegations of discrimination on members of the “dominant group”

• The importance of having African Canadians in positions of responsibility.”

Bernard holds a Ph.D. in Sociological Studies from the University of Sheffield, England, as well as an MSW from the Maritime School of Social Work (MSSW), Dalhousie University, and a B.A. (Sociology) from Mount Saint Vincent University. She has held academic appointments with the MSSW since 1990 (tenured since 2000) and has been its Director since 2001. Her undergraduate teaching load consists of one or two courses per year, and those courses may include cross-cultural working for social workers or Afrocentric perspectives in social work. In addition, Bernard teaches a graduate-level course that focuses on institutional change and understanding the intersecting levels of oppression and the social work role.

Bernard has also lectured extensively and taught courses outside of MSSW and Dalhousie. She has an impressive list of publications and funded research projects. In addition to her academic employment, Bernard worked professionally as a social worker from 1977 until 1990 with both the Halifax County Social Services/Family Services Association (or its predecessor) and with the Nova Scotia Hospital Social Work Department. Since January 1990 she has been a self-employed private practitioner offering culturally sensitive counselling and consulting services. Bernard is a founding member of the Nova Scotia Association of Black Social Workers, and of the Faculty of Colour Caucus of the Canadian Schools of Social Work.

Bernard’s doctoral dissertation was a participatory research project, and involved participants in both Halifax and in Sheffield, England. During the course of the project, the participants at each site did not know of the existence of the other site or its participants. The aim of the project was to explore notions of survival and success as black men defined those terms. Bernard wanted to identify the barriers black men had to overcome in mature societies to succeed where they were expected to fail and to make visible the positive achievements and success strategies of black men. In order to make the men the subjects of, rather than the objects of, the research, in each community she recruited one black man who then recruited others to form a research working group (RWG). Bernard reviewed relevant academic literature and worked with the RWG to develop a questionnaire for the members to use in their interviewing of other black men. Bernard used the questionnaire to conduct the interviews of the RWG members. RWG members then interviewed another twenty men on each site. Bernard did not know the identity of the men interviewed. In addition to the above, data was gathered from focus groups of 10-12 mean on each site. As well, a conference was convened on each site. Bernard performed the analysis of the data gathered through the above methodology.

In examination in chief Bernard was referred to the summary of findings contained in her thesis and asked to comment in particular on data and analysis pertaining to barriers to promotion. She replied as follows:

To getting to naming 8 survival strategies the men talked about the struggles they had to overcome. They talked about individual and institutional acts of racism and how systemic racism affected them. For instance, the study was done with adult men, and they reflected back on their experience in education. The participants had various levels of education. They talked about systemic barriers in education. Some talked about barriers in promotion. Many were unemployed or underemployed. They talked about difficulty in finding and maintaining employment. They talked about negative scripting and how they were able to overcome it and survive.

The actual questionnaire used in the study was not appended to the dissertation, although Bernard recalled that one question asked the participants about their experience in employment and how they dealt with it.

In her professional practice, Bernard has worked as a psychiatric social worker with the Nova Scotia Hospital in the children’s unit at a residential treatment centre where most of her clients had ADD and hyperactive behavioural problems. In her private practice, she has worked primarily with African Canadian families in Nova Scotia. In her examination in chief, Bernard was asked for examples of her work dealing with issues of racial identity and racial consciousness. She testified that she had worked extensively with black and bi-racial children who experienced major racial identity problems, and that her role was to work with the school and the community to secure their successful reintegration into the community. In addition, during her employment with the Family Services Association, Bernard dealt with many parent-adolescent conflict issues related to inter-racial dating. Bernard indicated that throughout her career there has been a thread of dealing with anti-black racism, white privilege and intersecting forms of oppression.

Bernard was asked specifically about her professional involvement in workplace issues. She testified that the Family Services Association had contracted to provide a company with an employee assistance program while she was employed there and that pursuant to that program she dealt with a number of referrals related to race and gender discrimination. Bernard indicated that her approach in such cases was to work not only with the individual employee, but also with others in the workplace in an attempt to address any systemic problems that might exist. When asked if she dealt with any issues respecting promotion, Bernard provided an example of a fellow social worker who was black and failed to secure a promotion which was awarded instead to a less qualified white candidate. She worked with the unsuccessful candidate to assist him in coping with the situation, including advising him of the range of options he might pursue to challenge the situation. Bernard also provides workplace training through her private consulting practice, and teaches workplace diversity training at Dalhousie. Both types of training are based on a three-point approach: awareness, analysis and action. A typical action plan might include training throughout the organization, communicating initiatives to all the employees, ensuring equity representation on hiring committees, and assisting individual employees in identifying personal actions they could take.

Bernard’s involvement in the education system has been largely confined to Nova Scotia. In addition to her work as a children’s residential social worker outlined above, Bernard is a parent and has been actively involved in the Black Learners Advisory Committee, in particular on a research project address issues confronting black learners in Nova Scotia. Bernard testified that she attempted to document the things that were having an impact on black learners, among which she identified the need to have more black people at all levels in the school system. Bernard has also provided training for groups of teachers.

REASONS FOR DECLINING TO QUALIFY CARR AND BERNARD

Introduction

This is a case alleging discrimination in employment, in which the Commission and the Complainant have articulated the systemic issue as one relating to the under-representation of African-Canadian teachers in positions of responsibility at the Scarborough Board due to the existence of systemic barriers to their promotion. The first stage of the hearing is aimed at the issue of liability: determining whether the factual assertions can be established, and if so, whether they constitute a contravention of the Code.

This is not a case about whether the Scarborough Board discriminated in the provision of services (i.e. education) to any of its users (i.e. African-Canadian students and parents).

Neither Carr nor Bernard conducted any applied examination or study of the employment circumstances of African Canadian teachers in the Scarborough Board.

The Commission and Complainant focussed on the fact that Carr and Bernard are extremely accomplished scholars, whose academic work is rigorous and learned. Because Carr and Bernard are “experts” in their fields, they should be qualified as “expert witnesses”. The fact is, however, that the focus of the BOI’s inquiry is not so much on the learnedness of the witness, as on the issue of whether he/she might usefully offer an opinion on the issues in dispute that are necessary to assist the trier of fact in making his/her factual determinations.

As set out above, Carr’s work relates to the delivery of anti-racist education. He testified that there are a number of components to an anti-racist education policy. For example, considerations of curriculum, community involvements and partnerships, and extra-curricular activities and clubs would go into the formation of such a policy. None of those elements have been the focus of any of the evidence in this case. Any complaints about those matters would fall under the rubric of alleged discrimination in the provision of services. Another component of anti-racist education is premised on the value of role-modelling, the idea that educational outcomes for racial minority students are enhanced by recruiting and promoting racial minority teachers. In the BOI’s view, it need not make any determination about whether this premise is correct, because it is, once again, pertinent only to the issue of the character or quality of the services provided by the School Board to its users. Indeed, as noted above, the BOI already ruled in May 2001, that such evidence is not relevant. Furthermore, for the purposes of this case, the School Board appears to have conceded the validity of the premise that it is desirable for the racial composition of the teaching staff (including persons in positions of responsibility) to reflect the racial composition of the student body. As noted earlier, a number of witnesses have been questioned (in chief and in cross-examination) about the racial composition of the student body in the Scarborough Board’s secondary schools.

Bernard

Based on the above observations, Bernard’s proposed evidence respecting “the importance of having African Canadians in positions of responsibility” is not relevant to any issue that has been articulated in this inquiry into discrimination in employment. The BOI notes that neither the Complainant nor the Commission submitted that Bernard’s evidence would tend to establish that African Canadian teachers in positions of responsibility serve as role models for African Canadian classroom teachers, although it might have been relevant on that basis. In any event, the BOI has already heard testimony to this effect from most, if not all, of the African Canadian teachers called as witnesses.

With respect to the balance of Bernard’s proposed evidence, the BOI finds that Bernard’s qualifying testimony did not provide a sufficient evidentiary basis on which the BOI might find that she possessed the expertise to proffer opinions on “the impact of allegations of discrimination on members of the “dominant group” or the impact of systemic racism on the “dominant” group and on African Canadians”. The BOI appreciates that Complainant’s counsel clarified that this area of proposed evidence went to the issue of how people behave when discrimination exists or is alleged. In counsel’s submission, such evidence would therefore be relevant to the issue of liability in this case, and particularly to liability on the reprisal allegations. Without making any finding as to whether such evidence could be relevant or necessary, it appears to the BOI from Bernard’s evidence that her counselling of one individual employee in an employment situation involving such allegations was relied on as establishing her expertise in this area. While the BOI recognizes that Bernard also provides workplace diversity training, it did not appear that this training was consequent upon allegations of discrimination. This evidence simply does not establish that Bernard has a body of work in this area on which her opinion might be based. Instead, on the testimony elicited from her by the Complainant, it appears that the informational basis for any such opinion might more accurately be described as the kind of “impressionistic” or “anecdotal” data that courts have cautioned may distort rather than assist the fact-finding process.

Insofar as it was proposed that Bernard provide opinion evidence respecting the “assessment of and solutions regarding workplace culture vis-à-vis the inclusion or exclusion of African Canadians in positions of responsibility”, such evidence, to the extent it is necessary and she is qualified to provide it (on which the BOI makes no determinations), appears relevant only to the question of remedy.

It was also proposed that Bernard proffer opinion evidence on the following topics: anti-Black racism in Canada and its manifestations in the workplace; the development and perpetuation of stereotypes and systemic barriers; and stereotypes directed against African Canadian men. None of these appear to be areas in which it is necessary that opinion evidence be adduced before the BOI, which is, after all, statutorily charged with and presumed to have the expertise to determine whether discrimination, including systemic discrimination, exists. Furthermore, it appears that this proposed evidence is all of a general or contextual nature in the sense that Bernard’s views on these topics do not arise out of any examination of the circumstances obtaining in the Scarborough Board during the time covered by this Complaint. The BOI notes that the Complainant appeared to rely on the experiential body of Bernard’s work in adducing evidence in support of the request that she be qualified to proffer opinion evidence in this case. She was not examined extensively with respect to her familiarity with or ability to speak to contemporary critical race scholarship.

There are two ways of providing the BOI with a sufficient contextual basis to deal with the issues arising in a complaint before it: an expert witness can be qualified to provide the BOI with a review of the academic literature; or the academic literature itself may be submitted to the BOI in argument as part of the book of authorities and relied on in the same way that Law Reform Commission papers, legal articles, or decisions of other courts or tribunals may be relied on to suggest the considerations the BOI should take into account in assessing the evidence led in this case and determining whether a contravention of the Code has occurred. The latter practice is common, and is illustrated in some of the decisions referred to below.

Complainant’s counsel submitted the following decisions to the BOI in support of the request that Bernard be qualified to proffer opinion evidence: Action Travail des Femmes v. Canadian National Railway Co. et al. (1987), 1987 CanLII 109 (SCC), 40 D.L.R. (4^th) 193 (S.C.C.); P.S.A.C. v. Canada (Treasury Board) (1991), 1991 CanLII 387 (CHRT), 14 C.H.R.R. D/341 (C.H.R.T.); R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.); and Kearney v Bramalea Ltd, supra. All but Parks involve proceedings pursuant to human rights legislation in which Complainant’s counsel stated that opinion evidence was admitted. None of them, however, discuss the pre-requisites to its admission, or the application of those pre-requisites in the unique circumstances of each case. For this reason, they are not particularly helpful as there was no dispute that the BOI has the ability to admit opinion evidence. In addition, it is not entirely clear to the BOI that the report considered by the Canadian Human Rights Tribunal in Action Travail was the subject of opinion evidence. Rather, it appeared that the report in question, which assessed the representation and circumstances of women in the CN workforce, had been previously commissioned by CN and that the findings in that report were relied on by the Tribunal, but it is not clear that any witness expressed any “opinion” beyond that already set out in the report.

Treasury Board is a pay equity case and involves allegations respecting the invisibility and consequent undervaluation of the job skills and knowledge of certain federal female workers as compared to male workers under the applicable job classification standards. It appears from the decision that the Tribunal qualified an individual to provide opinion evidence on the existence of systemic gender bias in the job classification standards. Although the witness was qualified to opine on the very employment structure at issue in the proceeding, in its final decision the Tribunal ultimately questioned whether the opinion expressed would support a finding of discrimination within the scope of the complaint since it related to a successor to the standard in effect at the time the complaint was made. The Tribunal stated that the testimony was nevertheless of assistance to it:

In our view, however, the usefulness of Dr. Hagniere’s evidence lies, not in the specific identification of systemic gender bias in the HS or GS classification standards, but in the theoretical framework for recognizing such bias. This is particularly applicable in addressing the issue raised by the complainant with respect to the new HS classification standard. (at paragraph 42)

Although the Tribunal found the expert’s evidence helpful in assisting it to understand the theoretical framework for recognizing gender bias, it is not at all clear that she would have been qualified for that purpose alone. Indeed, it is not at all clear that the evidence she provided in that regard (“the theoretical framework”) was the matter of her “opinion” at all as opposed to an explanation of her methodology that might as easily have been put before the Tribunal in the form of copies of her academic writings submitted along with judicial authorities in final argument.

Parks is not a human rights case, nor does it involve a question as to the admissibility of opinion evidence. It involves scrutiny of a judge’s refusal to allow potential jurors in a manslaughter trial to be asked whether their ability to judge the evidence without bias, prejudice or partiality would be affected by the fact that the accused was black and his alleged victim was white. The Court of Appeal ruled that counsel for the accused should have been permitted to put the question to the jurors. Although the Court noted that counsel had provided no evidence to the trial judge in support of his challenge, but had instead merely asserted that “anti-black racism in Toronto was a “notorious” fact”, the Court itself had regard to a large number of articles and studies concluding that “wide-spread anti-black racism is a grim reality in Canada and particularly in Metropolitan Toronto”. There is no mention that these materials were adduced through a duly qualified expert witness. Rather it appears that they were simply referred to in argument.

If the Complainant and Commission want to establish as a general sociological fact the prevalence of anti-Black racism and systemic discrimination in employment against African Canadians, they can ask the BOI to take judicial notice of the pronouncements tending to that effect in decisions such as Parks and Naraine v. Ford Motor Company of Canada Inc., [1996] O.H.R.B.I.D. No. 23, or they can put the theoretical framework for talking about “whiteness” or white privilege and racism before the BOI in the form of authorities relied on in argument. For example, at least two witnesses have already referred to an article they referred to as influential in understanding these concepts, Peggy McIntosh’s “White Privilege: Unpacking the Invisible Knapsack”. The Commission and Complainant can similarly ask the BOI to adopt the kind of analysis with respect to the existence of systemic discrimination and barriers to full employment that was utilized in Action Travail or has been urged by persons engaged in equity studies.

The foregoing paragraphs constitute the BOI’s reasons for declining to qualify Bernard to offer the proposed opinion evidence.

Carr

The primary experiential basis relied on as establishing Carr’s qualification to proffer opinion evidence was his applied study of the Toronto Board. As noted above, his study was a wide-ranging one into the Toronto Board’s efforts in delivering anti-racist education. His study included the gathering and considering of some data related to the employment circumstances of racial minority teachers, although that was not its main focus, as demonstrated in the excerpts from his dissertation abstract and data gathering instruments reproduced above.

No part of Carr’s evidence appears to the BOI to go to the inquiries it must make in order to determine liability. He has no quantitative evidence to provide to the BOI with respect to the numbers of African Canadian teachers in positions of responsibility at the Scarborough Board, and which would tend to establish under-representation. Nor does he have any qualitative evidence to provide to the BOI with respect to why African-Canadian teachers at the Scarborough Board were not promoted in greater numbers, or even why they feel they were not promoted in greater numbers. Carr has made no applied study of the Scarborough Board that would permit him to identify barriers to promotion that existed there.

All that Carr has to offer the BOI is his analysis of the impressions of Toronto Board personnel, including a significant proportion of the racial minority teaching staff, with respect to how that institution works, and why it was not as successful as it might have been in delivering anti-racist education, including enhancing the educational outcomes for racial minority students by recruiting and promoting racial minority teachers. Had the Commission or Complainant sought to call as witnesses in this proceeding those racial minority teachers Carr spoke to or surveyed at the Toronto Board, it is extremely doubtful that the BOI would have admitted testimony about their experiences at the Toronto Board both on the grounds that it would not have been probative with respect to the experiences of the Complainant (or other African Canadian teachers) at the Scarborough Board, and on the grounds that better evidence was available to be adduced directly from Scarborough Board teachers. Indeed, some of that evidence has been heard (Borel, Spence, Payne, Coates). It is hard to see why evidence that would have been inadmissible and irrelevant from the sources of information themselves, could be relevant and admissible when presented to the BOI in the mediated form of Carr’s study. Furthermore, the data gathering and analysis engaged in by Carr did not address whether targeted recruitment and promotion was required for the Toronto Board, but rather on why efforts to implement these projects failed. By contrast, the very exercise the BOI is engaged in is in determining what, if anything, the Code required the School Board to do to enhance the promotional opportunities and outcomes for African Canadian teachers in its employ. It therefore appears to the BOI, that even if Carr’s analysis were sufficiently focussed on employment issues and data, it would be relevant to remedy rather than liability.

The foregoing paragraphs constitute the BOI’s reasons for declining to qualify Carr to proffer the proposed opinion evidence.

REASONS FOR REFUSAL TO ENGAGE A COURT REPORTER

Background

The BOI’s decisions are subject to appeal on questions of both fact and law. See section 42(3) of the Code. The Code used to contain the following provision requiring it to record the oral evidence adduced before it:

s. 40. The oral evidence taken before a board at a hearing shall be recorded, and copies of a transcript thereof shall be furnished upon request upon the same terms as in the Ontario Court (General Division).

Former section 40 was effectively repealed in April 1995. At the same time, the scheme for the adjudication of human rights complaints changed. Complaints were no longer referred to ad hoc boards of inquiry appointed by the Minister of Citizenship and Culture, but were instead referred to a stand-alone tribunal, the BOI, and assigned by the Chair to panels of the BOI for hearing. Proceedings that had commenced before an ad hoc board of inquiry continued to be recorded at no expense to the parties. Complaints that were referred by the Commission to the BOI were not so recorded, except in accordance with BOI Practice Direction #2 (dated November 1, 1996):

RECORDING HEARINGS

The Board of Inquiry does not record or transcribe its proceedings. However, hearings will be recorded when it is necessary to accommodate an adjudicator, counsel, individual party or key advisor to a corporate party, who, due to disability is unable to participate during the hearing.

Parties may record hearings at their own expense and with the consent of the other parties and the presiding panel.

For as long as the above Practice Direction has been in effect, the BOI’s Toronto hearing rooms (where this Complaint is being heard) have been equipped with tape-recording equipment operable by the panel.

In Fiorini v. Di Poce Management Limited, [1996] O.H.R.B.I.D. No. 38, the BOI rejected an argument by respondents’ counsel that the provisions of the Code required the BOI to “maintain a record of proceedings and to provide a transcript of the oral evidence taken before it in the event that an appeal … is filed”, and further refused to exercise its discretion to order that proceedings be recorded by activating the BOI’s own tape-recording machinery:

Even though the Procedures allow me the discretion to order that the proceedings be recorded, I am not prepared to do so in this case. None of the parties have requested accommodation due to a disability and there have been no submissions made that “… the complexity of the evidence or other factors makes the recording of the hearing sufficiently helpful to the parties and to me”. As a result, I am not prepared to order that the proceedings be recorded.

The respondents sought to judicially review the BOI’s refusal to activate the recording equipment, and also sought an interim stay of its proceedings pending the outcome of that judicial review application. By decision dated February 4, 1997, the BOI (differently constituted) refused the stay ([1997] O.H.R.B.I.D. No.4). An application to have the BOI’s latter decision quashed and its proceedings stayed was unsuccessful. The complainant and the responding parties subsequently settled the complaint, and the Commission was permitted to withdraw the complaint ([1997] O.H.R.B.I.D. No. 8). Consequently, the judicial review of the BOI’s refusal to record its proceedings was abandoned. It is perhaps worth noting that the Commission in Fiorini did not take a position on whether the proceedings should be recorded.

Leroux v. Ontario (Human Rights Commission) (1999), 1999 CanLII 15059 (ON CTGD), 35 C.H.R.R. D/338 (Ont. Gen. Div.) involved an appeal from a BOI decision in which one of the grounds for the appeal was the BOI’s failure to record the proceedings or provide a transcript. This case is discussed in greater detail below. There is no suggestion in the decision that the Commission supported the appeal on this ground.

At no point prior to August 20, 2002, was any request made that the evidence in this hearing be recorded, either by court reporter or by activating the BOI’s recording equipment. As noted above, the request at that time was made to the Chair of the BOI, who referred the Complainant to the provisions of Practice Direction #2. The request was not made to the panel until November 4, 2002, more than two years after the matter had been referred to the BOI, and after approximately fifty days of evidence, including almost the entirety of the Complainant’s and the Commission’s case, had been heard.

Grounds for the Complainant’s Request

The Complainant’s Notice of Motion sets out the following as constituting the grounds for the relief sought:

1. The principles of natural justice require the verbatim transcription of these proceedings in order to preserve the right to be heard and the right of appeal.

2. The Board is required to exercise its discretion in a manner consistent with the Charter.

3. In this regard, section 15 of the Charter is infringed by the lack of verbatim transcription of these proceedings.

The BOI noted that Complainant’s counsel did not appear to have provided the Attorneys General of Ontario and Canada with the Notice of Motion, and questioned whether section 109 of the Courts of Justice Act required her to have done so since it appeared to the BOI that an argument that the Charter compelled the BOI to record proceedings was tantamount to arguing the constitutional invalidity of the repeal of former section 40. Counsel clarified that her position was that the BOI in this case should exercise its discretion to require proceedings to be recorded, but that she was not necessarily arguing that the Charter required evidence in all BOI proceedings to be recorded. The BOI agreed to hear the motion without notice having been given in accordance with section 109, but also indicated that it would reserve on the motion and determine after hearing submissions if the Attorneys General ought to be apprised of the motion and provided with an opportunity to make representations.

Submissions in Support of the Motion

Counsel for the Complainant submitted that the BOI’s discretion respecting the recording of proceedings should be exercised having regard to the factual context and the nature of the statutory regime. With respect to the factual context, she noted the length of the proceeding to date (in terms of hearing days); the scheduling of the hearing (3-4 days per month); the number of witnesses intended to be called by the Respondent (more than 30); the fact that the parties’ and BOI’s notes of what witnesses have said may differ and may cause confusion respecting certain issues; that the Complaint raises issues of concern to the Complainant individually as well as issues of alleged systemic discrimination pertaining to the ability of African-Canadians generally to obtain positions of responsibility; and the cost to the Complainant should he be required to have a court reporter attend the balance of a hearing. With respect to the statutory regime, Complainant’s counsel noted the following: the Code provides for a right of appeal on questions of fact and/or law; that the BOI may, pursuant to its own Rules of Practice, order the recording of proceedings in circumstances other than those noted in Practice Direction #2; that systemic cases are of great societal importance and necessarily involve a high volume of evidence such that the cases should be “transcribed” “to ensure a proper record and an efficient process for the hearing and any subsequent appeal”; that the Canadian Human Rights Tribunal transcribes its proceedings and provides transcripts; that efficiency is compromised and the hearing prolonged by the need for the participants and the BOI to take notes. In summary, the Complainant submitted (at paragraph 23 of the written submissions):

This is a case in which the principles of Natural Justice dictate the verbatim transcription of the proceedings at no cost to the Complainant. Given the nature of the hearing, the length of the hearing, the complexity of the evidence, the difficulties which have arisen in terms of the evidence that impact on appealable matters and the receptiveness of the statutory regime and given the impracticability of filing affidavit evidence on appeal, the current record (the exhibits) is insufficient to ensure a fair disposition of this matter at this time and on appeal. If this is not remedied now, we risk a re-hearing should the matter be appealed. This would be a costly, cumbersome and needless process.

Counsel for the Complainant also submitted that the BOI must exercise its discretion in determining whether to provide a court reporter in a manner consistent with the Charter. Her submissions on this point are found in paragraphs 25 and 26 of her written submissions. Paragraph 26 reads:

The Human Rights Process is the only route available to persons claiming discrimination. This process has been held to be the comprehensive venue for dealing with discrimination on the basis of race and other grounds. Persons who seek remediation for other wrongs, have access to verbatim transcription of the process as of right and thus, the right to a fair hearing and the full right of appeal are not compromised. The failure to provide verbatim transcriptions creates a two tier system of access to justice vis a vis access to an effective right of appeal and an effective remedy. The Human Rights Code was created in large part to right the wrong of discrimination on the basis of race. African Canadians faced historic disadvantage and continue to face race based discrimination in Ontario. In light of this context and in the face of the protection of one of the most fundamental human rights which encompasses human dignity, the failure to transcribe the proceedings sends a message to persons from historically disadvantaged groups and in particular those from racialized groups that righting the wrongs against them, i.e. the wrong of discrimination, is less worthy than addressing civil wrongs. A reasonable, African Canadian, apprised of the context and in similar circumstances to that of the Complainant would find that this discrimination impugns human dignity and is thus discriminatory. In order for the Human Rights process to be a substantively equal, truly comprehensive process, complainants must have access to verbatim recording of the proceedings at no cost.

The BOI asked Complainant’s counsel to address how the fact that her request was made at the half-way point of the proceeding might impact on the BOI’s exercise of discretion to engage a court reporter. Counsel’s reply was the following:

I have thought about that. I wish I’d been here on day one. We can either make a bad situation worse or fix it while we have a chance. My request to the Chair was made in August when I was notified about how many witnesses the Respondent was going to have.

In response to another question from the BOI, Complainant’s counsel clarified that notwithstanding the form of her Notice of Motion, she was seeking to have the BOI pay for the attendance of a court reporter, but was not seeking to have the BOI pay for the furnishing of transcripts. When asked if making a tape recording of the balance of the proceedings would be an adequate alternative to the relief she sought, counsel advised the BOI that it would not be adequate, because a court reporter would not be prepared to make a certified transcript from it as portions of the tape might be garbled or unclear, and furthermore, court reporters have a facility in reading back evidence.

The affidavit of Vanessa Beach, who is a legal secretary employed by the ACLC, was filed in support of the motion. The following case law was also provided to the BOI: Canadian Union of Public Employees, Local 301 v. Montreal (City), 1997 CanLII 386 (SCC), [1997] 1 S.C.R. 793; Leroux, supra; Chopra v. Canada, [2001] C.H.R.D. No. 20; NCARR v. Health Canada (unreported decision of Canadian Human Rights Tribunal dated March 19, 1997); Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038; Law v. Canada, 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497; and Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181.

The Commission supported the motion. With respect to its timing, Commission counsel noted that it was regrettable that a court reporter had not been asked for at the outset, although he indicated that “much of the basis for requesting a transcript has emerged as the hearing has progressed”. Commission counsel submitted that the “efficiency of moving forward” militated in favour of a court reporter attending the balance of the hearing because “we would not have to take as detailed notes”. Commission counsel did not refer to any case law in making his submissions.

Respondent’s Submissions

The Respondent opposed the motion, and took the position that there was no basis for the BOI to cause the balance of the proceedings to be recorded by a court reporter. With respect to the affidavit of Vanessa Beach, Respondent’s counsel noted that very few of the statements contained in it were based on Ms. Beach’s direct knowledge as opposed to information passed on to her by the Complainant’s counsel, and suggested that counsel and the BOI were in possession of better knowledge about the circumstances of the hearing. As for the two matters on which Ms. Beach purported to have direct knowledge, Respondent’s counsel noted that Ms. Beach had asserted she had difficulty keeping up with the note-taking on occasions when she had attended at the hearing, but suggested that any such difficulty may have been attributable to the fact that she did not attend on a regular basis and may not have been familiar with the hearing and the issues being canvassed in it. Furthermore, Ms. Beach’s affidavit set out her information and belief with respect to the practice of the Canadian Human Rights Tribunal, and the anticipated cost to the Complainant of paying for a court reporter’s attendance. In the view of Respondent’s counsel, those matters were simply irrelevant and not determinative of the issue before the BOI on the motion.

The Respondent submitted that the requirements of natural justice did not warrant the provision of a court reporter at this point in this proceeding. She noted that the first fifty days of evidence had not been transcribed, nor had any request been made to have them recorded. In her submission, the duration of the unrecorded proceeding could hardly form the basis for requiring the balance of the hearing to be recorded, as the completed portion of the evidence could never be captured in any record. Respondent’s Counsel also observed that the case has been proceeding a few days per month since the commencement of the hearings on the merits, and that the Respondent had indicated the number of witnesses it would be calling more than a year prior to the request for a court reporter, with the consequence that these facts could not be relied on to support a request for a reporter at this point. The Respondent took the position that the nature of the issues in dispute was not relevant to whether the proceedings ought to be recorded, and also disputed the Complainant’s characterization of the case and the evidence as “complex”. In any event, she asserted that the Respondent’s evidence will be no more “complex” than the evidence that has already been admitted, and has not been recorded by a court reporter.

Respondent’s counsel also took issue with the Complainant’s suggestion that the lack of a court reporter led to confusion with respect to what had occurred in the proceedings thus far, noting that there is no requirement for adjudicators to take notes or take notes in a particular form, nor is there any requirement for the parties to reach consensus on the notes taken. As for the reliance of Complainant’s counsel on the fact that the BOI’s notes did not record the caveat of Complainant’s former counsel respecting role modelling evidence and the assertion that this omission had affected the BOI’s rulings on the admissibility of the evidence of certain proposed experts, Respondent’s counsel noted that the caveat (and the evidence) was irrelevant having regard to the fact of the Respondent’s concession on the issue. She further noted that a difference of opinion that arose between the Respondent and the Complainant as a consequence of the cross-examination of the latter with respect to the scope of his Complaint had been resolved by discussion between the parties.

Respondent’s counsel disputed that it would be difficult to prepare affidavit material (if necessary) in the event of an appeal having regard to the fact that the parties have already exchanged will-say statements in respect of their witnesses. On the subject of a possible appeal, the Respondent submitted that any appeal would be lopsided and unfair where a transcript was available for the evidence adduced on one side of the issue only.

Respondent counsel made brief submissions with respect to the impact of the Charter on the motion, noting that ordering a reporter in this case based on a desire to avoid “two-tier” justice would suggest that all proceedings before quasi-judicial administrative tribunals should be recorded. Rather than compare proceedings before the BOI to other civil proceedings, Respondent’s counsel suggested that the appropriate inquiry ought to be whether complainants who allege systemic discrimination are disadvantaged by the absence of the availability of transcripts vis-à-vis other complainants who allege human rights contraventions.

With respect to the Commission’s submissions, Respondent’s counsel noted that his “efficiency” arguments appeared to be premised on the provision of transcripts, as opposed to the mere recording of the proceedings.

Reply Submissions

In her reply submissions, Complainant’s counsel noted that the original estimate for the length of this hearing was 20 days and that it has been “unpredictably long” and that “the complexity of the case was unpredictable”. She also noted that contrary to the Respondent’s argument, the question was not whether “necessity” demanded that proceedings be recorded, but whether “fairness” did.

Analysis

In CUPE v Montreal, supra, the Supreme Court of Canada surveys the relevant jurisprudence of the Federal Court and the Quebec Labour Court prior to 1997. It stands for the following propositions. In the absence of statutory compulsion to record proceedings, the record of an administrative tribunal is comprised of the documents initiating the proceeding, and the documents containing the tribunal’s decision. The principles of natural justice are not infringed by the absence of a transcript on appeal or judicial review unless such absence deprives a party of the right to an appeal because what transpired at the original hearing cannot be ascertained by any other means. If what transpired can be ascertained by affidavit (or some other means), the reviewing court should be reluctant to quash or overturn the decision. The Court appears to suggest (at p. 841) that this principle is applicable regardless of whether the tribunal’s decision is subject to judicial review, or to appeal. The pertinent question is whether the appeal turns on the tribunal’s review of the findings of fact and weighing of the evidence, and if it does, the suggestion is that the failure to have recorded the evidence may amount to a failure of natural justice, if the evidentiary record cannot be otherwise ascertained.

The Code does not require the BOI to record its proceedings, let alone furnish a transcript of those proceedings. It does clearly provide, however, that where proceedings are recorded, any transcript made from the recording forms part of the record, effectively mirroring the provisions of subsection 20(e) of the Statutory Powers Procedure Act. In Leroux, supra, the Court rejected the notion that the failure to provide a transcript or record the proceedings before the BOI will necessarily amount to a failure of natural justice, and in doing so it appeared to echo the rationale articulated in CUPE v Montreal, although it did not specifically refer to that decision:

It has not been suggested by the appellants that the Board misapprehended the oral evidence of any of the witnesses. In these circumstances, I cannot accept the submission of the appellants that the failure to provide a transcript led to a denial of natural justice.

With respect to the nature or degree of the “misapprehension of evidence” that must be asserted and established to ground an appeal, Emrick Plastics v. Ontario (Human Rights Commission) (1992), 90 D.L.R. (4^th) (Ont. Div Ct.), stands for the proposition that the findings of fact of the BOI should not be interfered with unless it is shown to have “made a palpable and overriding error, which affected its assessment of the facts”. More recently, in Entrop v. Imperial Oil Ltd. (2000), 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18 (C.A.), the Court held that the standard of review of the BOI’s findings of fact and the application of the law to them is reasonableness.

CUPE v. Montreal, supra, (and the cases cited therein) and Leroux, supra, involve an ex post facto review of an administrative tribunal’s failure to record its proceedings. By contrast, the proceeding before the BOI is ongoing, and for all intents and purposes, engaging a court reporter at this point would lead to the situation where only the evidence adduced by the Respondent would be recorded. Prior to the determination of the case, it is unclear which of the parties (if any) may wish to appeal, or on what basis. On the rationale of the above cases, recording the proceedings at this point only preserves an effective right of appeal in respect of a potential allegation that the BOI has misapprehended some aspect of the evidence adduced by the Respondent. It would be of no assistance in respect of any appeal based on a misapprehension of the evidence adduced by the Commission and the Complainant, and it would be unnecessary in any appeal on a question of law. Short of a suggestion that it would be “cumbersome” to do so, there is nothing before the BOI to indicate that it would be impossible to prepare affidavits for the purpose of persuading the appellate court that a “palpable and overriding error” had been made in the apprehension of the evidence. The BOI also notes that neither of the two instances of “confusion” noted in the affidavit of Ms. Beach pertained to any alleged misapprehension of evidence.

The principles of natural justice of course require that all parties to a proceeding be treated fairly. In the BOI’s view, it is simply not fair to order the proceedings recorded at this point over the objection of the Respondent when it is, essentially, only its witnesses whose evidence will be recorded.

Without deciding whether the length of this hearing, the number of witnesses or the complexity of the evidence (rather than the complexity of the issues, which is a legal rather than evidentiary matter) might have persuaded the BOI to record the evidence at the outset of this proceeding, the simple fact is that no one made such request. Although Complainant’s counsel appeared to suggest in her submissions that she would have done so had she been “here from day one”, the fact is that, as far as the BOI is concerned, she has been. The ACLC has been counsel of record for the Complainant since before the initial conference call. The suggestion that the complexity of the hearing and its length have been “unpredictable” do not provide any basis for the BOI to exercise its discretion in the Complainant’s favour at this point (over the objection of the Respondent), given that the case which they suggest is so “unpredictable” has been their own, and they have had the benefit of the Commission’s investigation and case analysis in preparing it. Moreover, the request for a reporter was not made at the earliest possible moment after it became clear that the case would not be finished in the originally estimated twenty days, or that more “complex” evidence would be required.

The Real Problem

It appears to the BOI that to this point the major difficulty occasioned by the lack of a recording of the proceedings stems from the change of the counsel in attendance for the Complainant. The instances of confusion noted in the motion materials stem from the period of time when Mr. Pinto attended the hearing. The BOI adverted to the nature of the questions put to the Complainant on cross-examination and advised his current counsel in attendance to review them as they pertained to and might have some bearing on the scope of the Complaint. The BOI also indicated that the framing of the Complaint and the subsequent pleadings have some bearing on the parameters of the issues in dispute. At the same time the BOI alerted counsel to the fact that the value of role modelling was not an issue in dispute in this proceeding. Over the lunch break in the hearing that day, the adjudicator reviewed her notes and identified the dates on which those matters had been addressed so that counsel might review her predecessor’s notes on the point. Counsel then stated that she would not be bound by any positions taken by her predecessor. Commission counsel at this point observed that he had recorded Mr. Pinto’s caveat to the Respondent’s concession respecting the value of role-modelling.

Ms. Scott is bound by any positions taken by Mr. Pinto, in writing or in attendance before the BOI. She is bound by rulings of the BOI that preceded her attendance at the hearing. The BOI ruled that evidence respecting the value of role-modelling was irrelevant to this proceeding. Mr. Pinto could not reserve to the Complainant the right to lead that evidence despite the BOI’s ruling, or to make role-modelling an issue in this proceeding. The only evidence pertaining to role modelling that has been admitted thereafter has pertained to the racial demographic of the student and teaching and position of responsibility complement of Scarborough secondary schools. Ms. Scott is also bound to the answers given by the Complainant in his examination, and to the answers of the other witnesses. Although there may have been a confusion between counsel as to the weight or significance counsel for the Respondent would place on certain of the Complainant’s answers respecting the scope of the Complaint, the BOI does not understand that to have been a dispute among those present at the time about the questions posed and answers given (i.e. the record). That confusion could not have been avoided by the existence of a transcript.

With respect to the arguments that proceeding efficiently in the future requires the recording of the balance of the proceedings, the BOI notes that the arguments in support of this rationale appear to be premised on the furnishing of transcripts rather than the mere recording of proceedings. The BOI or a party might not wish to purchase transcripts, in which case the evidence would still be adduced at the pace required for detailed note-taking.

Notwithstanding the assertions to the contrary by Complainant’s counsel, the BOI does not see any meaningful basis for distinguishing between human rights complaints alleging systemic discrimination (on whatever ground) and other human rights complaints, such that the Charter requires the recording of proceedings involving the former, but not the latter. It appears to the BOI that to accept the written submissions in paragraph 26 (set out above) amounts to holding that the Charter requires that human rights proceedings be recorded. That holding, in turn, is tantamount to finding that the repeal of section 40 of the Code contravenes the Charter. The BOI is not prepared to address that issue in the absence of notice having been provided to the Attorneys General in accordance with section 109 of the Courts of Justice Act.

For all of the above reasons, the Complainant’s motion is denied.

Dated at Toronto, this 26^st day of November, 2002

“Mary Anne McKellar”

Mary Anne McKellar, Vice-Chair