McKenzie Forest Products Inc. v. Tilberg (No. 3)
2002-02-05
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 Adam Tilberg, dated March 25, 1993, alleging discrimination in employment on the basis of handicap.
B E T W E E N :
Ontario Human Rights Commission
- and -
Adam Tilberg
Complainant
- and -
McKenzie Forest Products Inc.
Respondent
INTERIM DECISION
Adjudicator: Patricia E. DeGuire
Board File No.: BI-0111-97
Decision No.: 02-004-I
A P P E A R A N C E S
Adam Tilberg, Complainant Gerald Rayner
McKenzie Forest Products Inc., Corporate Respondent Nigel Campbell
INTRODUCTION
1These are the Board's Reasons for its Decision in the disposition of this motion. At the conclusion of the motion in October 2001, the Board reserved its decision.
2McKenzie Forest Products Inc. (the "Respondent") brought this motion with the aim to preclude from the hearing, certain statements allegedly made by Mr. Tim O'Donovan ("O'Donovan") to one Keith Hill (the "Decedent"). The Decedent communicated the impugned statements to his family members, and to the Ontario Human Rights Commission (the "Commission") on two specific occasions – initially to file a complaint on behalf of Mr. Adam Tilberg (the "Complainant") and subsequently, during the course of the Commission investigation of this complaint. The Decedent is said to have been the stepfather of the Complainant. The issue in this motion turns on the fact that the deponent passed away and, the Respondent will not have the opportunity to test his statements on cross-examination.
RECENT PROCEDURAL BACKGROUND
3In October 1998, the hearing into the merits of this complaint was adjourned so that the Respondent could pursue a judicial review. On April 1, 2001, Vice-Chair Laird's term of office expired and, she was unable to continue the adjudication of this case. The Chair of the Board of Inquiry (the "Board") re-assigned this case to the current adjudicator.
4Since the reassignment of this case in May 2001, among other things, the Board held a conference call on August 23, 2001. At that time, the Board adjourned the hearing on the merits that it had scheduled for August 20 to 24, 2001, because the Respondent's counsel advised that certain witnesses were not available. Also, it set timelines for disclosure and set October 22 to 26, 2001, as hearing days on the merits. Eventually, some of the October 2001 hearing days were converted to hearing days for this motion.
ISSUE
5Whether the documentary or testimonial evidence relating to comments O'Donovan allegedly made in a conversation with the Decedent ought to be admissible in these proceedings.
DECISION
6The motion is dismissed. The Decedent's statements are admissible to prove that the statements were made and, for the truth of their content. The Board shall determine the proper weight, if any, that should be attributed to them when the Board takes its decision on the merits of this case.
THE MOTION
7By this motion, the Respondent seeks an Order from the Board excluding all evidence, whether documentary or testimonial, relating to comments O'Donovan allegedly made in a conversation with the Decedent. Notably, counsel for the Respondent admits that O'Donovan had a conversation with the Decedent. However, he denies stridently that O'Donovan made any discriminatory comments or made any comments during the conversation that have any discriminatory implications.
8The Respondent's counsel submits that any evidence relating to the conversation between O'Donovan and the Decedent is hearsay and unreliable, and therefore, ought to be excluded from the proceedings on the merits. Moreover, he submits that admitting the impugned evidence would result in substantial prejudice to the Respondent's right and ability to make full answer and defence.
9The Complainant's counsel contends that O'Donovan did make discriminatory comments to the Decedent during the conversation, and that the Decedent relayed those comments to his family members immediately after the conversation ended. In addition, counsel contends that relatively shortly after the conversation, the Decedent relayed those comments to the Commission's receptionist/intake worker and subsequently, to the Commission's employee who was assigned to investigate the complaint.
10The Complainant's counsel submits that the comments are hearsay, but they are reliable and therefore, admissible. In that vein, he sought to lead evidence via five witnesses: the Complainant, his mother and another family member, who allegedly entered the Decedent's home shortly after he ended the conversation with O'Donovan; Ms Thunder, who was the receptionist/intake person for the Commission at the relevant time; and Ms Lina Bava, who was an investigator in this case at one point.
11The Board held that the evidence of Ms Bava and Ms Thunder was useful. However, it is the Board's view, that the evidence is not necessary in its determination of this motion. In addition, the Board held that the evidence the Complainant's counsel sought to put before the Board via the Complainant, his mother and the other family member was not helpful. The Board's rationales are discussed below.
12The Board is satisfied that the Decedent's statements relating to the alleged comments O'Donovan made to him in their telephonic conversation are relevant to the subject-mater of this proceeding. Notably, s. 15 of the Statutory Powers Procedure Act, R.S.O., 1990, c. S.22, as amended, ("SPPA") and Rule 57 of the Board's Rules of Practice allow the Board to admit hearsay evidence without the qualification of necessity or reliability. Even if s. 15 of the SPPA and Rule 57 did not exist, the Board is satisfied that the comments are admissible as exceptions to the hearsay rule based on the tests enunciated in R. v. Smith (1992), 1992 CanLII 79 (SCC), 75 C.C.C. (3d) 257 and R. v. Khan (1990), 1990 CanLII 77 (SCC), 59 C.C.C. (3d) 92, because the comments are necessary and, there are at least two strong reliable sources to whom the Decedent made those comments.
13First, the Board is satisfied that the evidence is reasonably necessary to prove a material fact in issue in this case. In the Board's view, it is difficult to obtain better evidence. If the Decedent were alive, it is more likely than not, he would have been an important witness and, no doubt, would be able to relate the impugned comments and perhaps more.
14Second, the Board is satisfied that Ms Bava's and Ms Thunder's evidence is a strong reliable source of the Decedent's version of the comments he had alleged O'Donovan made during their conversation. Their evidence is helpful to buttress the reliability of the impugned comments because their evidence has established a circumstantial guarantee of its trustworthiness: (see Smith at p. 270). The Board bases its determination on three points.
15First, the Board is satisfied that Ms Thunder was able to recall independently, the gist of the conversation she had had with the Decedent when he attempted to file a complaint with the Commission. The Board is mindful, however, that Ms Thunder did not reduce her conversation to writing. Second, the Board is satisfied that Ms Bava's handwritten notes as contained in the Commission's file, more than likely, are an accurate record of the conversations she had directly with the Decedent: ( Exhibit 1). Further, the Board is content that she had recorded the conversations during the course of her employment and that at all relevant times, Ms Bava was carrying out her duty to make inquiries into human rights complaint. Third, Ms Bava's recordings, as contained in the Commission's file, are consistent with and buttress Ms Thunder's recollection of her conversation with the Decedent, even though there had been a two-year gap since the communication between Ms Thunder and the Decedent (that was made approximately a few weeks after the conversation with O'Donovan), and between Ms Bava and the Decedent.
16Notwithstanding the fact that the Board allowed the evidence of Ms Bava and Ms Thunder, as noted above, the Board held that the evidence that the Complainant's counsel sought to adduce via the Complainant and his relatives was not useful. Neither the Complainant nor his relatives, who the Complainant's counsel proffered to lead evidence to bolster the reliability of the Decedent's statements, were present during the conversation between the Decedent and O'Donovan. Therefore, none would have heard any spontaneous utterance the Decedent might have made during that conversation. Therefore, for the purpose of this motion, their evidence would not carry any inherent degree of reliability. Second, even if the Decedent had made spontaneous exclamations to them immediately after the conversation, those witnesses are related to the Decedent and the Complainant, and likely have some interest in the outcome of this case. However, this does not preclude them from giving evidence on the merits of the complaint.
17Finally, the Board is not convinced that by admitting the impugned statements, there is any prejudice to the Respondent. The Board is satisfied, however, that if there is any prejudicial effect at all to the Respondent because of their inability to cross-examine the Decedent, that will not be substantially prejudicial to the Respondent's ability or right to make full answer and defence. Furthermore, the Respondent has ample opportunity to call O'Donovan to give evidence on its behalf at the proceeding on the merits. In addition, any prejudicial effect might be minimized further by assigning the appropriate weight to that evidence within the context of all the evidence in this matter. It is worthy of note that O'Donovan, who admits that he had a conversation with the Decedent, is alive and attended the motion each day. He did not give evidence.
CONCLUSON
18Having dismissed the motion, the Board shall commence the hearing on the merits in this case on February 18, 2002 at Thunder Bay.
Dated at Toronto, this 5th day of February, 2002.
_________________________ Patricia E. DeGuire, Vice-Chair