Ontario Human Rights Commission v. Toronto District School Board, 2004 HRTO 2

Human Rights Tribunal of Ontario

Between:

Ontario Human Rights Commission Commission

-and-

Francis Omoruyi-Odin Complainant

-and-

Toronto District School Board Respondent

Interim Decision

Adjudicator: Mary Anne McKellar Date: February 18, 2004 Citation: 2004 HRTO 2

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

Appearances

Ontario Human Rights Commission: Raj Dhir, Counsel Francis Omoruyi-Odin, Complainant: Sheena Scott, Counsel Toronto District School Board, Respondent: Carole E. Hoglund, Counsel

Introduction

1At the continuation of this hearing on November 27, 2003, the Commission and the Complainant objected to the introduction of certain documents pertaining to the June 1997 competition for the position of Technical Director at Timothy Eaton BTI in which the Complainant was an unsuccessful candidate. These documents consist of application materials (including resumés) supplied by the three candidates for the position; summaries of interview notes for each of the two unsuccessful candidates which include ratings for how the candidate’s answer to each particular question ranked compared to the other two candidates; and notes on reference checks conducted in respect of the Complainant’s candidacy (“the Documents”).

2After hearing the parties’ submissions on the motion, the Tribunal made the following oral ruling, and indicated that written reasons for it would follow in due course:

The Tribunal is satisfied that the Documents are admissible and that their admissibility would not constitute an abuse of process. In the Tribunal’s view there is no prejudice to the Complainant and the Commission that cannot be alleviated by the calling of reply evidence, which in the Tribunal’s view, would not add unduly to the length of the hearing.

These are the reasons for the above ruling.

Facts

3There is no dispute that the Documents are relevant to the issues before the Board.

4Respondent’s counsel provided the Commission and the Complainant with copies of the Documents in February 2003, and subsequently provided them with a will-say statement indicating that she anticipated that a member (Ron Fitton) of the interview team responsible for conducting the interviews and evaluating the candidates would testify about how they came to be disclosed at such a late date. Counsel then proceeded to advise the Tribunal of what she anticipated Ron Fitton’s evidence on this point would be, and counsel for the Commission and the Complainant were prepared to accept for the purposes of disposing of this motion that her account was accurate. That account is as follows:

• Fitton was asked for his notes relating to the competition when the Commission was conducting his investigation, as well as by Respondent counsel;
• As a result of those inquiries, Fitton provided the Respondent with copies of the notes he made during the actual interviews, as well a copy of those interview notes in respect of the Complaint which he had rewritten in a fair hand for the purposes of a feedback session that had been requested;
• The Respondent disclosed those items;
• Fitton did not appreciate that the Documents were relevant to the issues in dispute surrounding the competition or were responsive to the disclosure requests Respondent counsel had communicated to him;
• The existence of the Documents only became known to Respondent counsel after witnesses called for the Complainant and Commission had commented on how they would have ranked the candidates in the competition based on Fitton’s actual interview notes, and the Tribunal presumes (although this was not specified) that they came to light in response to questions counsel posed to Fitton respecting his own ranking;
• Copies of the documents were then provided to the Commission and the Complainant, who indicated that they intended to object to their admissibility.

Moving Parties’ Submissions

5The Commission and the Complainant object to the Documents’ admissibility on the following grounds:

(1) The Respondent failed to disclose the documents in a timely way in accordance with the Tribunal’s Rules;

(2) The Respondent failed to disclose the documents notwithstanding specific written requests by the Commission for all records and notes relating to the June 1997 Technical Director competition. The first such request was made on May 13, 2001, and an exchange of correspondence ensued and then in November 2001, Respondent counsel advised that she had no more documents to produce;

(3) The contents of some of the documents are hearsay (the Tribunal assumes that this refers specifically to the notes of the reference checks);

(4) The introduction of the documents contravenes the rule in Brown v. Dunn, as their contents tend to impugn the evidence of witnesses to whom the contradiction was not put in the course of cross-examination;

(5) The documents are incomplete and therefore unreliable;

(6) The introduction of the documents at this point would constitute an abuse of process;

(7) The Commission and the Complainant would be severely prejudiced if the documents were introduced as they might potentially have to call reply evidence from six of their witnesses who previously testified about this competition, and that would unduly lengthen this hearing.

6The Commission relied on the Tribunal’s decision in Arias v. Desai, 2003 HRTO 1 in support of the proposition that a document produced to the other parties midway through a hearing ought not to be admitted. The Tribunal noted that in that decision an individual with knowledge of the contents of the document in question was nevertheless permitted to testify about those contents, and the Commission conceded that Ron Fitton could testify about the contents of the Documents, but that the Documents themselves should not be admitted.

Respondent’s Submissions

7Respondent counsel advised the Tribunal and the other parties that, contrary to the assertions of the latter, she understood that Fitton would testify that the documents were complete. Counsel noted that Ron Fitton is not himself a respondent to this proceeding, but she did not suggest that the Documents were his personal documents (nor did she concede that they were corporate documents). Counsel focussed her submissions on the question of prejudice, and suggested that the introduction of the application materials provided by the Complainant and Eric Coates (one of the other candidates in the competition) could not prejudice the Commission and Complainant in that those witnesses (who have already testified in this proceeding as part of the Commission’s and Complainant’s case) had authored them and should have been aware of them. As for the application materials of the third (and successful) candidate, he had not yet testified, although the Tribunal understands that the Respondent intends to call him as a witness. Consequently there could be no prejudice to the other parties in the introduction of his materials at this point. With respect to Ron Fitton’s notes of the reference Lennox Borel provided in respect of the Complainant, counsel indicated that it was difficult for the Respondent to know in advance of testimony from the Commission and Complainant’s witnesses what might be relevant to this proceeding, but that the Respondent had endeavoured to do so and had recognized its obligation to provide continuing disclosure.

Reply Submissions

8In reply, the Commission stated that, while it accepted that it might sometimes be difficult to anticipate which documents could be arguably relevant to an adversary’s case, that proposition had no application in the case of the Documents. The Commission asserted that it has been clear from the beginning of this proceeding that this particular job competition and its outcome was being impugned by the Complainant, and consequently all documents pertinent to it should have been produced. The Commission characterized the Respondent as having failed to exercise due diligence in respect of its disclosure obligations and in response to the Commission’s specific production requests – “if these documents had been asked for they would have been found”. The Commission also submitted that, based on the testimony of other witnesses, the Documents must be considered corporate documents in the possession of the Respondent, and not merely documents personal to a witness.

Analysis

9There is no doubt that the Documents have not been disclosed in a timely way as contemplated by the Tribunal’s Rules of Practice (see Rule 41). That fact alone does not render them inadmissible. Rule 42 provides that the document may be entered and relied on with the Tribunal’s permission subject to any conditions the Tribunal considers appropriate. Indeed, in this very proceeding the Tribunal has already ruled that an audiotape which the Complainant failed to disclose in a timely way was nevertheless admissible (2003 HRTO 18).

10Based on Respondent counsel’s summary of Fitton’s anticipated testimony respecting how the Documents came to light at such a late date, which the Commission and Complainant accepted as accurate for the purposes of this motion, the situation before the Tribunal is not one involving the deliberate concealment by the Respondent of the Documents. Nor does the Tribunal understand the Commission and the Complainant to be suggesting that that is the case. Rather, it appears that there may a number of possible explanations. For example, Fitton either may not have understood what was being requested of him by Respondent counsel in connection with the disclosure requests from the Commission and Complainant, or he may not have taken them seriously as he had already provided some documents relating to the impugned competition, or Respondent counsel’s requests to him may have been ambiguous or cursory. The Tribunal understands the Commission and Complainant to be taking the position in their submissions that regardless of which (if any) of the foregoing accurately describes what occurred here, Respondent counsel, although she did not conceal anything, failed to exercise due diligence to ensure that the Documents were uncovered. The moving parties argue that the Documents should not be admissible because of this failure of due diligence.

11In the Tribunal’s view it does not need to decide whether there was a lack of due diligence on Respondent counsel’s part (and indeed it would be difficult to determine that question in the absence of evidence about what actually occurred) because lack of due diligence alone is not a sufficient basis on which to deny the admissibility of the Documents which are conceded to be relevant. In the Tribunal’s view, evidence that is relevant and otherwise admissible should be admitted even though it has not previously been disclosed unless to do so would subject the opposing parties to serious prejudice that the Tribunal is unable to remedy. This is essentially the test the Tribunal applied in its earlier decision admitting the audiotape (2003 HRTO 18), and it is akin to the standard applied by the Tribunal in determining motions alleging an abuse of process.

12The Commission and Complainant argued that the Documents should not be admitted because they (or some of them) are hearsay. There are several difficulties with this argument, some of them stemming from the fact that this motion was brought prior to Fitton’s even identifying the documents. The first is that any document is hearsay and cannot by itself in the absence of testimony by its author be relied on for the truth of its contents (unless some exception such as the one applying to documents produced in the ordinary course of business applies), so that the argument that the Documents are hearsay and not admissible on that basis alone tends to suggest that no documentary evidence is admissible. The second is that the hearsay exception does not apply unless the document is being relied on for the truth of its contents, and it is not at all clear that the Respondent is relying on the Documents for that purpose. The third is that the Tribunal is not in any event precluded from admitting hearsay evidence (Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, section 15). The fourth is that the Commission and Complainant retain the right to make submissions as to the weight (if any) that the Tribunal should give to the Documents. The fifth is that all of the Documents in question have been authored by persons who have already been witnesses and whom the Commission and Complainant have already indicated an intention to recall (the Complainant and Eric Coates), are currently testifying (Ron Fitton), or will be testifying (the successful candidate). For all of the foregoing reasons, the Tribunal is of the view that the fact that the Documents may contain hearsay is not a sufficient reason to rule that they are inadmissible.

13The Commission and Complainant argued that the contents of the Documents tended to contradict the evidence of witnesses who had completed their testimony without the fact of the contradiction being put to them. This, it was argued, violated the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). It is not apparent to the Tribunal that the contents of the Documents (or even the fact of their existence) necessarily “contradict” the testimony of previous witnesses, but certainly the Documents touch upon matters on which some previous witnesses have offered testimony. Presumably had the parties been aware of the Documents at that time, any of them (including the Respondent) might have asked some of those witnesses about them. That (and any potential Browne v. Dunn violations) can be remedied now, however, by permitting those witnesses to be recalled at the instance of the Commission or Complainant to testify about those matters if necessary. The Commission and Complainant estimated that six witnesses might need to be recalled and questioned about the Documents. All of them are available to be recalled. As the Tribunal has noted above, the Commission and Complainant have already indicated an intention to recall some of them to testify about other matters in any event. The Tribunal is satisfied that any additional questions arising out of the introduction of the Documents will not add unduly to the length of that testimony, nor to the overall length of this hearing, which already appears likely to occupy at least 150 days.

14In the Tribunal’s view, therefore, the Documents are admissible, and their admission would not prejudice the Complainant and Commission because they may recall witnesses (if necessary) to testify about the Documents. Any issue about the completeness of the Documents may go the weight to be afforded them, but does not affect their admissibility.

Additional Comments

15Counsel for the Complainant noted that the Tribunal in its earlier decision admitting the audiotape made reference to the fact that it appeared from the Complainant’s testimony in the proceeding that there might be other arguably relevant documents in his possession or indeed in the possession of his counsel that had not been disclosed as a consequence of the advice of his former counsel. Consequently, in that decision the Tribunal directed that the Complainant and his current counsel review their files to ensure that all arguably relevant materials in their possession were provided to the Respondent and the Commission. Complainant’s counsel appeared to suggest that he had been inappropriately singled out for these comments, and submitted that the course of these proceedings revealed that the Respondent has also failed to disclose arguably relevant documents (in addition to the Documents). Although Complainant’s counsel did not specifically request that the Tribunal direct the Respondent to review its files, her submissions implied that that would be appropriate.

16Before considering the request for a direction, the Tribunal would like to clarify that it was certainly not its intention in its earlier decision to suggest that the Complainant himself had acted inappropriately by not disclosing the audiotape and/or other documents. Rather, the Tribunal simply noted that the Complainant appeared to have adverted in his evidence to his former counsel taking the position that not all arguably relevant materials had to be disclosed, possibly because the Tribunal’s Rules of Practice require the disclosure of documents on which a party “intends to rely”. The Tribunal made the direction it did because it seemed entirely possible that the Complainant’s former counsel might also have decided that other arguably relevant documents in the Complainant’s possession of which both he and the Complainant were aware might also not have been disclosed for the same reason. In any event, the Complainant’s current counsel, and the other parties, all agreed that they should be disclosing all documents in their possession that were arguably relevant, and that they were subject to a duty to disclose on an ongoing basis.

17The situation with respect to the instances in which the Respondent has disclosed documents on an ongoing basis rather than at the outset of these proceedings differs somewhat from the situation the Tribunal was addressing with respect to the Complainant when it made the direction to review files. Unlike the Complainant, the Respondent is a corporate entity and not an individual. Furthermore, there is no suggestion that Respondent counsel has herself been aware of or in possession of arguably relevant documents that she has not promptly disclosed. Rather, the problem appears to be that there may be arguably relevant but undisclosed documents, the existence of which (as is the case with the Documents) is known only to individual employees or former employees of the Respondent, which has thousands of employees. Normally, one might expect that a thorough investigation of the Complaints by the Commission followed by counsel’s preparation of the case would have revealed all such documents, although an additional complicating factor in this case is that the Respondent is the successor to the entity whose actions are actually being impugned in this proceeding and significant corporate reorganization has occurred since the time of the events alleged in the Complaints. So, while the Tribunal is not opposed to making a direction that might assist in flushing out any heretofore undisclosed but arguably relevant documents, it is not an easy task to frame with any precision the kind of direction that could effect that result. It appears to the Tribunal that the most effective direction it can make is that Respondent counsel communicate to her witnesses (to the extent that she has not already done so) that they are to provide to her for inspection all documents pertaining to their relationship with the Complainant, and that she, not the individual witnesses, will make the determination of whether those documents are arguably relevant and ought to be disclosed.