Ontario Human Rights Commission and Francis Omoruyi-Odin v. Toronto District School Board, 2003 HRTO 9

HUMAN RIGHTS TRIBUNAL OF ONTARIO

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

Commission

-and-

Francis Omoruyi-Odin

Complainant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Mary Anne McKellar

Date: April 8, 2003

File Nunber: BI-0354-00

Citation: 2003 HRTO 9

Human Rights Tribunal of Ontario

400 University Avenue, 7^th^ 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

1The Complaints before the Human Rights Tribunal of Ontario ("the Tribunal") involve allegations that the Respondent School Board ("the Board") has contravened the Human Rights (“the Code”) by discriminating against the Complainant in his employment on the basis of a number of prohibited grounds, including race, and in addition that certain conduct on the part of the Board amounted to unlawful reprisal, contrary to the Code, for the fact that the Complainant had complained under the Code. The reprisal allegations are not pertinent to this decision, which deals with a motion by the Commission that the Tribunal refuse to admit the testimony of three witnesses that the Board intends to call.

2Other than reprisal, the Complainant, who is African Canadian and is employed by the Board as a classroom teacher, has alleged that he failed to obtain certain job promotions because of his race, and has further alleged that African Canadians are under-represented in positions of responsibility at the Board and that this under-representation is attributable to systemic discrimination and employment practices that create barriers for African Canadians seeking promotion.

MOTION

3The Commission has indicated its intention to seek to have the Tribunal refuse to admit the testimony of six of the first twenty witnesses the Board has proposed to call. The motion was argued only with respect to the first three of these proposed witnesses, however. The grounds asserted for this relief are that the testimony is irrelevant to the issues the Commission and Complainant have put in dispute (in the Complaints, the Commission's Statement of Facts and Issues, and the Commission's opening statement), and amounts either to similar fact evidence or to evidence tending to impugn the Complainant's credibility with respect to a collateral fact. On either basis, the Commission asserts that the testimony is not admissible.

DECISION

4The motion fails, for the following reasons.

FACTS

5The Complainant has been represented by counsel throughout this proceeding, as has the Commission. Commission counsel and Complainant's counsel have presented their case jointly. The Complainant was the first witness called. He testified over the course of 18 days from March 20, 2001 until July 5, 2001. In his examination-in-chief he was taken through the entirety of his employment history at the Board, including questioning about each individual promotional job posting he applied for, and each teacher evaluation report that was made with respect to him. One of the promotional opportunities the Complainant pursued in 1995 was a position at Cedarbrae Collegiate Institute, where Jeff Farber was the Principal. The job posting listed Mr. Farber as the contact person for applicants for the position. The Complainant was asked and answered some questions about that job competition and Mr. Farber's involvement in it. In cross-examination, the Complainant was asked if the Cedarbrae competition was at issue in this proceeding before the Tribunal and he replied that it was. Counsel for the Board also asked the Complainant a number of questions about this job competition, including the fact that Mr. Farber would contradict some of the Complainant's assertions about Mr. Farber's involvement in it. The Complainant stuck by his evidence in chief. In re-examination, the Complainant was asked about this competition again. Specifically, he was advised that the yearbook information for Cedarbrae Collegiate Institute (in 1998) revealed that there were 120 teachers at the school, of whom two were black, and was asked his view of whether race could have been a factor in this competition. He replied to the effect that "this kind of statistic confirms that race was a factor". None of the preceding areas of questioning were objected to by any party.

6At one point in the Complainant's career, Mr. Farber was a Vice-Principal in the secondary school where the Complainant was teaching. In this capacity Mr. Farber also prepared a teacher evaluation report ("the Farber Evaluation") with respect to the Complainant's classroom teaching. Questions were put to the Complainant in both his examination-in-chief and in his cross-examination with respect to the Farber Evaluation.

7In the course of his examination-in-chief on March 21, 2001, the Complainant was asked a number of questions about the teacher evaluation report process generally. He was then questioned specifically about each of his teacher evaluation reports commencing in 1977 until 1994. One of the teacher evaluation reports about which he was questioned was prepared by Bob Myrvald in 1986 ("the Myrvald Evaluation"). Another was prepared by Natalie Stein ("the Stein Evaluation") in 1991. The Tribunal's notes with respect to the Complainant's cross-examination on the Myrvald Evaluation run to four pages in length, while the notes respecting the cross-examination on the Stein Evaluation comprise 11 pages. Portions of this questioning involved Board counsel putting the Complainant on notice that both Myrvald and Stein would disagree with the interpretation of their evaluations of him that he advanced in his testimony. On two occasions in his re-examination the Complainant was asked questions about the Stein Evaluation. These questions and answers occupy almost 6 pages of the Tribunal's notes. Once again, none of the above areas of questioning were objected to at the time.

8On June 7, 2001, counsel for the Board wrote to the Tribunal (with a copy to the Commission and Complainant) identifying the witnesses she had so far determined that she would be calling in this proceeding. Among them was Jeff Farber. She characterized the subject matter of his testimony as follows:

Mr. Farber was the Principal at Cedarbrae C.I. in 1995. It is anticipated that he will give evidence about the competition for the Acting Assistant Head of Business Studies position posted in April, 1995 (Exhibit 2, Tab 73).

9The Board also provided the Commission and Complainant with more detailed will-say statements of Mr. Farber's anticipated testimony, as well as copies of other will-say statements, including statements for Mr. Myrvald and Ms. Stein. From these will-says, and based on Board counsel's submissions on this motion, it appeared that these two individuals would be testifying about the teacher evaluation process, and their evaluations of the Complainant in particular, including testimony as to what they intended to convey by the words used in those evaluations. In addition, it appeared that Ms. Stein would be testifying about the racial composition of the staff at her school based on the yearbooks which have already been filed in evidence, and about which several of the witnesses called by the Commission and Complainant have already proffered testimony on the same issue.

10Every day in the month of April 2003 has been scheduled for the continuation of the hearing in this matter. The last witness called by the Commission and Complainant completed his testimony on April 3, 2003. Board counsel had previously (on March 27, 2003) provided opposing counsel with a list of the witnesses she intended to call during the balance of April, and the order in which she anticipated calling them. The second witness on her list was Mr. Farber, and counsel estimated that her first witness' testimony would occupy approximately one day of hearing. The third and fourth witnesses on the list were Mr. Myrvald and Ms. Stein.

11On April 3, 2003, the Commission informed the Board that it was not seeking to have the Tribunal make any findings of liability or award any remedies based on the conduct of certain job promotion competitions in which the Complainant had been involved, including the Cedarbrae competition in 1995. The Commission and the Complainant also stated this position to the Tribunal when this motion was first addressed on April 4, 2003. As a consequence, the Commission took the position that Mr. Farber's testimony should not be admissible. The Commission had previously indicated that it would be objecting to the admissibility of the evidence, but had not precisely indicated the basis for its position. For this reason, Board counsel was not prepared to respond to the Commission's submissions on April 4, 2003, and all parties agreed that her submissions would be entertained on April 7, 2003. Prior to hearing those submissions, however, the Tribunal directed the Commission to provide its submissions with respect to the basis for not permitting Mr. Myrvald and Ms. Stein to testify. Board counsel then responded with respect to all three witnesses.

12The Commission argued that its stipulation that it would not rely on the Cedarbrae competition as the basis for a finding of liability or any remedy rendered the evidence surrounding that competition "collateral" to what was at issue in this proceeding. As a result of that characterization, it was suggested that Mr. Farber's evidence could not be introduced for the purpose of impugning the Complainant's credibility on the anticipated contradictions between the two of them with respect to Mr. Farber's involvement in that interview process. Furthermore, the Commission argued that evidence respecting the reasons for why the Complainant did not succeed in the Cedarbrae or any other competition not specifically impugned by the Commission or Complainant should be characterized as similar fact evidence and should not be admitted because its probative value is minimal, since it goes to an issue not put in dispute by the Commission or Complainant, and is highly prejudicial as perhaps tending to suggest to the Tribunal that the Complainant was not a good or qualified candidate for any promotion.

13The Tribunal asked the Commission if it was proposing to strike the evidence respecting the Cedarbrae competition from the record, and he advised that he was not. The Tribunal asked the Commission if the evidence respecting the various job competitions it did impugn was relied on only as providing evidence of direct discrimination in employment, and counsel advised that that was also not his position; rather the Tribunal understands him to have confirmed that the cumulative record of unsuccessful promotional applications was relied on as evidence of systemic discrimination. The Tribunal notes that this appears consistent with the Complainant's own testimony and with a letter he sent to the Board dated May 11, 1995 which referred to 8 unsuccessful competitions in which he had been involved in the year 1993 alone. The Complainant was questioned about this document without objection and without any clarification as to what was at stake in this proceeding being provided by either his counsel or Commission counsel. Similarly, the Tribunal notes that neither counsel for the Commission nor the Complainant sought to clarify that the Cedarbrae competition was not at issue in this proceeding at the point in his cross-examination when the Complainant asserted to Board counsel that it was at issue.

14The Commission argues that the Myrvald and Stein Evaluations are also not at issue in this proceeding. Counsel took the position that the Myrvald Evaluation pre-dated any competition about which the Complainant was taking issue, and had been superseded by the Stein Evaluation before the first of the contentious competitions at Bendale BTI in 1993 arose. For this reason counsel argued that testimony about the Myrvald Evaluation was irrelevant to these proceedings. The Tribunal notes, however, that the Complainant testified on March 21, 2001 that he had provided both the Myrvald and the Stein Evaluations in support of his application for the Bendale posting. With respect to the Stein Evaluation, counsel argued that although it was relevant to the Bendale competition, the language of the evaluation must speak for itself and the Tribunal should not entertain other evidence with respect to its interpretation, particularly from its author. With respect to the issue of the teacher evaluation process generally, Commission counsel suggested that the Tribunal had already heard quite a bit of evidence on that topic from the Complainant and two other witnesses called by the Commission and Complainant. Finally, on the topic of the proposed questioning of Ms. Stein on the yearbook information, the Commission and the Complainant suggested that there might be another way to get that evidence in without hearing from Ms. Stein. Despite the fact that the Commission and the Complainant took the position that the proposed Myrvald and Stein evidence was not relevant, they were not prepared to agree that the Complainant's evidence on the points which Myrvald and Stein sought to address should be struck from the record.

15The Commission and the Complainant also took the position that should the Tribunal permit the proposed evidence to be adduced from Messrs. Farber and Myrvald, and from Ms. Stein, they might have to seek further disclosure/production in order to prepare for cross-examination, and they reserved the right to call more evidence on these matters themselves.

ANALYSIS

16Counsel for the Board characterized as "outrageous" the position of the Commission and Complainant on this motion. While the Tribunal might not employ such a colourful adjective to describe the motion, it agrees that the motion is so ill-founded and ill-timed as to have negatively impacted on the efficient conduct of this hearing.

17Regardless of whether they seek a remedy with respect specifically to the Cedarbrae competition, the Commission and Complainant put the evidence respecting it to the Complainant in examination-in-chief. They did not object when questions were asked in cross-examination. And in re-examination they asked their own question which elicited testimony from him to the effect that the result of that competition was linked to his race. They did not object when Board counsel advised that Mr. Farber would be a witness, or when she provided his detailed will-say. Eighteen months after the most recent of those events, however, and on the eve of Board counsel's calling Mr. Farber, they suddenly took the position that his proposed testimony does not relate to a relevant matter before the Board, but rather to a collateral issue. A similar sequence of events occurred with respect to the proposed testimony of Mr. Myrvald and Ms. Stein.

18Notwithstanding their contention that the evidence proposed to be adduced from the three Board witnesses is now "collateral", the Commission and Complainant are not prepared to have the Complainant's evidence on the same matters struck from the record. They want their evidence on record, but want to deny the Board the opportunity to counter it. Indeed, as the Tribunal noted above, counsel suggested that the Tribunal did not need to hear from Board witnesses on the subject of the teacher evaluation process because it had already heard from their witnesses on that topic. Additionally, while conceding that evidence about the yearbook information is relevant to this proceeding, counsel nevertheless urged the Tribunal not to permit Ms. Stein to testify about this matter either, on the basis that the evidence could perhaps come in some other way.

19The moving parties' submissions are fundamentally inconsistent with what the Tribunal understands to be the requirements of natural justice and fairness in the adversarial process. The Commission and Complainant have put in their case. The Board is now entitled to try and make a full answer and defence to that case. So long as proposed evidence is relevant, as is admittedly the case with the yearbook information sought to be adduced from Ms. Stein, the Board can adduce that evidence through any witness of their choosing who has knowledge of the matter, and the other parties cannot constrain that choice of witness. The Tribunal does not need to determine whether the other proposed evidence could have been considered "collateral", or could have been considered "similar fact evidence" as the Commission and Complainant contend. The Commission and Complainant cannot themselves call evidence and then preclude the Board from attempting to counter it, by subsequently arguing that it is collateral or irrelevant. Had the Commission and Complainant adduced the Complainant's testimony only with respect to matters they now say are in issue before the Tribunal, and had they acted promptly to clarify what was in issue when the Complainant's testimony apparently misrepresented (as they now say) the matter, they would have been in a position to challenge any attempt by the Board on cross-examination to introduce evidence respecting these matters now asserted to be "collateral". Had such challenge succeeded, this hearing would undoubtedly have been much shorter. Even had it not succeeded, the Commission and Complainant would still have been able to address these evidentiary matters in their re-examination of the Complainant. For whatever reason, they instead sought to raise these matters themselves in his examination-in-chief, and as a consequence lost the opportunity to argue about their relevance to this proceeding.

20As for the purported reservation of the right to call further evidence on, for example, the Cedarbrae competition and the Myrvald and Stein Evaluations, the Commission and Complainant are of course entitled to seek the Tribunal's permission to call reply evidence. They should be aware, however, that a party is not generally permitted to call such evidence where to do so would have the effect of permitting that party to "split its case" where it ought to have anticipated and dealt with an issue in the first instance. The Tribunal has not specifically been requested to make any orders with respect to production or disclosure arising out of the testimony of Messrs. Farber and Myrvald and Ms. Stein, nor is it apparent to the Tribunal at this time that any would be appropriate. The Commission and the Complainant have Mr. Myrvald and Ms. Stein’s will-say statements, they will hear their testimony, and they will have an opportunity to cross-examine them. They have had copies of the documents about which they will presumably be testifying for more than two years, and if they have reason to believe other relevant documents may be in their possession, they can ascertain on cross-examination whether that is the case.

FURTHER DIRECTIONS

21The Tribunal is concerned that this motion was raised on the eve of the proposed witness' testimony when the factual basis for it has clearly been known to the moving parties for almost two years. The timing of the motion necessitated that the matter be heard orally, and two afternoons were spent doing so, although that time might more usefully have been devoted to hearing testimony. Having regard to these considerations, the Tribunal makes the following directions with respect to any further motions or procedural matters.

22Unless the Tribunal orders otherwise, it will determine any further motions on the basis of written submissions only.

23In the event that the Commission or the Complainant wish to pursue their motions to have the Tribunal prohibit the Board from calling other of its proposed witnesses, submissions to that effect must be made in writing to the Tribunal no later than two days before the date on which it is anticipated that the proposed witness will be testifying. Those submissions must be copied to the Board, but need not be responded to unless the Tribunal so directs the Board.

24Any other motions must also be made in writing as soon as practicable after the factual basis for the motion becomes known to the moving party. The responding party to the motion need not file responding submissions until directed to do so by the Tribunal.

25Any motions filed in accordance with the above paragraphs will be determined by the Tribunal as promptly as possible to avoid the loss of any scheduled hearing time. The Tribunal's decision will be communicated to the parties in writing. Should the Tribunal wish to provide written reasons for its decision on a motion, those reasons may be provided at the same time as the decision or at a later date.