HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Francis Omoruyi-Odin
Complainant
-and-
Toronto District School Board
Respondent
INTERIM DECISION
Adjudicator: Mary Anne McKellar
Human Rights Tribunal of Ontario
400 University Avenue, 7th Floor
Toronto ON M7A 1T7
Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946
TTY (416) 314-2379 / 1-800-424-1168
INTRODUCTION
1On April 4 and 7, 2003, the Tribunal heard the Commission’s Motion (supported by the Complainant) in which it sought to have the Tribunal decline to hear the testimony of three witnesses (“the Witnesses”) proposed to be called by the Respondent. All of the witnesses had either prepared Teacher Evaluation Reports of the Complainant (“the Evaluations”) or had participated on the interview team in a job competition (“the Competition”) in which the Complainant had been an unsuccessful candidate for promotion. The Commission objected to their testifying about the Evaluations and the Competition on the grounds that such testimony was irrelevant to the issues in dispute in this proceeding, did not satisfy the criteria for admissibility as similar fact evidence, and could not be used to impugn the Complainant’s credibility because it related to collateral matters.
2At the conclusion of counsels’ submissions, the Tribunal ruled orally that the Motion was dismissed insofar as it related to the first of the Witnesses that the Respondent proposed to call. On the following morning, April 8, 2003, the Tribunal ruled orally that the Motion was also dismissed insofar as it related to the other two Witnesses. The Tribunal’s written reasons for these rulings (“the Reasons”) were issued later the same day.
3In its rulings delivered orally, and in the Reasons, the Tribunal found that it would be unfair to preclude the Respondent from calling evidence from the Witnesses with respect to the Evaluations and the Competition because Commission and Complainant counsel had already questioned the Complainant about these matters in his examination-in-chief, had permitted Respondent counsel to cross-examine with respect to them without objection, and had themselves conducted re-examination in respect to some of them. The Tribunal noted that the Commission and Complainant did not propose that the evidence be struck from the record or disregarded by the Tribunal, and indeed wished to rely on it for “evidence of the Complainant’s employment history”, although the Tribunal acknowledged that the moving parties stated that they would not be seeking to have the Tribunal make any findings of liability or issue any remedial orders with respect to the Competition, and indeed also stated that they had never intended that any but certain specified job competitions be placed at issue in this hearing. In the Reasons, the Tribunal noted that this statement of position appeared inconsistent with some of the evidence adduced, and indicated its understanding that the Complainant’s employment history, including his cumulative record of unsuccessful promotional applications was being relied on as evidence of systemic discrimination. Certainly, this understanding appeared consistent with the position taken by the Commission and Complainant in their opening statement to this proceeding, as well as consistent with the Complainant’s evidence and the manner in which other witnesses have been questioned not only about their involvement in certain competitions involving the Complainant, but also about the entirety of their own employment histories, including job competitions where they were unsuccessful, notwithstanding that all these competitions have not now been identified as ones that the Commission and the Complainant specifically impugn.
4By letter dated April 9, 2003, the Commission and the Complainant brought another Motion to have the Tribunal decline to hear the evidence of the Witnesses. This Motion was made in writing (consistent with the Tribunal’s direction in its Reasons). The Respondent filed responding submissions, and the Commission and Complainant filed a reply.
5The Tribunal is satisfied that it can determine the Motion on the basis of the written material filed.
ISSUE
6The grounds for the Motion essentially raise two issues:
a. Does the fact that the Complainant and Commission are now prepared to have the Tribunal strike the Complainant’s evidence relating to the Competition and Evaluations provide a basis for granting the relief requested? and
b. Was the Tribunal’s ruling with respect to the Motion influenced by the fact that it understood the Commission and Complainant to be relying on the entirety of the Complainant’s employment history in support of the allegations of systemic discrimination?
DECISION
7The Motion is dismissed.
PARTIES’ POSITIONS
8The Commission and Complainant have clarified that they are not relying on the entirety of the Complainant’s employment history to demonstrate the existence of systemic discrimination on the basis of race among secondary school teachers employed by the Respondent and aspiring to promotion. They submit that the Tribunal mischaracterized or misunderstood their position on this point when the original Motion was argued.
9The Commission and Complainant further submit that, having clarified their position, and having now agreed to have all of the Complainant’s testimony with respect to the Competition and the Evaluations struck from the record, the Tribunal should determine whether the testimony to be adduced from the Witnesses with respect to those matters is relevant or merely collateral, and should refuse to entertain any similar fact evidence (the evidence about any job competitions involving the Complainant that have not been specifically impugned) because its probative value is slight, and is outweighed by its prejudicial effect.
10The Respondent submits that the Tribunal did not misunderstand the moving parties’ position at all in the first instance, and invites the Tribunal to find that they are merely trying to seek the same relief already denied to them. Counsel suggests that the Complainant’s evidence has already been heard by the Tribunal, and that that situation cannot be rectified by striking it now. Rather, she submits that fairness demands that the Respondent be permitted to call its responding evidence. Respondent counsel further submits that parties ought not to be allowed to introduce evidence and then seek to withdraw it in order to avoid it being challenged by way of cross-examination, or in this case, rebutted by the testimony of subsequent witnesses. Respondent counsel also asserts that the evidence is relevant.
11In reply, the Commission and the Complainant state that the Respondent has failed to indicate the basis on which the testimony of the Witnesses is relevant. They further submit that a party in civil proceedings has the right to withdraw any part of its claim before or during trial where to do so will narrow the issues, and shorten the hearing, which they say will be the consequence of allowing their Motion. They also rely on the professionalism of the Tribunal to enable it to remain uninfluenced by evidence that has been heard but struck.
REASONS
12The Tribunal’s reasons for dismissing this Motion involve considerations of both a legal and a practical nature.
13In the first place, as a practical matter, it is not at all clear to the Tribunal that it can determine or specify to the parties which portions of the Complainant’s evidence should be struck. This proceeding has not been transcribed, so the Tribunal is not able to say to the parties, for example, that questions 300 – 350 and the answers thereto are being struck. As well, on a number of occasions during his testimony, the Tribunal’s notes reveal that the Complainant was either asked questions about job competitions in general in which he had been an applicant, or that he answered a question by appearing to refer generally to his experience in job competitions without identifying a particular competition. It therefore appears to the Tribunal that it may not be possible for it to sever the evidence in the manner proposed by Complainant and Commission counsel. As well, the Tribunal notes that witnesses other than the Complainant who were called by the Commission and Complainant provided testimony about job competitions other than those now said to be specifically impugned. In particular, Lenox Borel testified about references he provided for the Complainant in respect of job competitions that the Commission and Complainant now say are not at issue. The Tribunal does not understand the moving parties to be suggesting that this evidence should also be struck.
14Secondly, although the Tribunal agrees with the general proposition that an applicant in a proceeding can abandon certain claims or causes of action at any time, the impact of the Tribunal’s decision with respect to the earlier Motion, and with respect to this one, is not to preclude the Complainant and Commission from doing so. Rather, the question is whether an applicant can close its case and then preclude the responding party from attempting to rebut the evidence led by abandoning that claim and withdrawing the evidence in support of it. In the Tribunal’s view, that is simply not appropriate or fair, and the Tribunal does not view Soulos v. Korkontzilas (1990), 1990 CanLII 6751 (ON HCJ), 74 O.R. (2d) 766 (H.C.J.) (a decision filed by the moving parties) as supporting the view that it does. In that case, a plaintiff who abandoned a claim for damages at the discovery stage of a civil suit was permitted to avoid being questioned about his efforts at mitigation. The claim in that case was therefore abandoned before any evidence on the issue had been led. In the Tribunal’s view, the more applicable case law is that cited by the Respondent and standing for the proposition that, except where an affidavit was filed by mistake, a party will not be permitted to withdraw it in order to avoid having the affiant cross-examined with respect to its contents. See Re Canadian Workers Union and Frankel Structural Steel Ltd et al (1976), 1976 CanLII 829 (ON HCJ), 12 O.R. (2d) 560 (Div. Ct.). Surely if it is improper to allow a party to withdraw an affidavit at that point, it would be even more improper to allow it to do so after it had permitted cross-examination on that affidavit, had participated in re-examination on it, and had filed other affidavits dealing with some of the same matters. That is, by analogy, precisely what the Commission and Complainant are seeking in this Motion.
15Thirdly, the Tribunal has some difficulty with the assertion of the Commission and the Complainant that the Competition (and the other competitions not now specifically impugned) was never intended to ground any claim for liability in this proceeding. The Tribunal has already noted in its Reasons that the Complainant was specifically asked in his re-examination if race was a factor in the Cedarbrae competition, which appears inconsistent with the current contention that that Competition was never intended to be impugned. The impression created by the pursuit of certain lines of inquiry by Commission and Complainant counsel during the examination of the Complainant and their other witnesses, followed by the articulation after the close of their case that the case is in fact much narrower than the evidence led would suggest, is that they are simply seeking to recharacterize the issues now in order to avoid having what they may perceive as unhelpful or damaging evidence challenged by the evidence of the Witnesses.
16Fourthly, even if the Tribunal itself were persuaded that: (1) it was possible to determine which evidence to strike; (2) it would be fair to the Respondent to do so; and (3) the Commission and Complainant truly never intended to place certain matters in issue, it is not at all confident that a reviewing court would view matters the same way. At the time these reasons are being written, the liability portion of the hearing into this Complaint has already occupied some 70 or so days, and appears likely to approach 100 or more by the time it is complete. If the Respondent is ultimately found by the Tribunal to have contravened the Code in any respect, the Tribunal is concerned that the entirety of the proceeding might be susceptible to a successful judicial review or appeal should this Motion be granted. If that were to occur, this Complaint would likely have to be reheard. Clearly the time to be saved by proceeding as the Commission and Complainant suggest in this Motion would be greatly outweighed by the time lost having to rehear the matter.
17Fifthly, the Tribunal understands this Complaint to allege that systemic discrimination exists with respect to African Canadian teachers in the employ of the Respondent, and in particular with respect to those seeking promotion to positions of responsibility. The Tribunal further understands the Commission and the Complainant to assert that African Canadians were under-represented in positions of responsibility during the time period covered by these Complaints, and that the Respondent’s employment polices and practices created or perpetuated systemic barriers to their promotion. One of the employment practices that the Tribunal has understood the Commission and Complainant to be impugning is the job competition process itself, from the drafting of the posting, through to the interview process and the recommendation of candidates. The Commission and the Complainant, as noted above, have led evidence which they have characterized as “similar fact” evidence, respecting the experience of African Canadian teachers seeking promotion in competitions in which the Complainant was not a candidate, and impugning (as the Tribunal understands their position) the conduct of those competitions. Surely if that evidence is relevant to the matters at issue in the Complaint, there is no basis on which to preclude the Respondent from adducing evidence with respect to the conduct of job competitions in general, or the conduct of other competitions involving African Canadian candidates, including those in which the Complainant competed. While the Commission and Complainant may not seek to rely on these competitions in support of their case, there is no reason the Respondent cannot rely on them in attempting to answer that case. In the Tribunal’s view, the evidence of other competitions is directly relevant to the systemic issues raised in the Complaints which address the situation of all African Canadian teachers in the employ of the Respondent. It is a mischaracterization to refer to it as “similar fact” evidence with respect to those allegations. While it might properly have been characterized as “similar fact” in a complaint that alleged race discrimination in respect of a single individual and the conduct of identified job competitions in which he or she was an applicant, the Tribunal does not understand this Complaint to be so limited in terms of its allegations.
18Finally, the Tribunal notes that the Complainant and the Commission have expressed concern that the evidence they want the Tribunal to refuse to hear is only slightly probative, while being highly prejudicial. In the Tribunal’s view, this is an issue that may be of greater concern where the trier of fact and the trier of law are not the same. Furthermore, it appears to the Tribunal that if the Commission and the Complainant are prepared to accept that the Tribunal’s professionalism would have enabled it to render a decision uninfluenced by the testimony they seek to have struck, they should also be prepared to accept that the Tribunal will be able to resist being influenced or prejudiced in any way by evidence that may ultimately be of only slightly probative value.
19For all of the above reasons, this Motion is dismissed.
Dated at Toronto this 20th day of May, 2003.
“Mary Anne McKellar”
Mary Anne McKellar
Vice-Chair