HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Joseph Modi

Complainant

-and-

Paradise Fine Foods Ltd.

Sayed Ben Aycha, Muhamd Omarbach

Respondents

INTERIM DECISION

Adjudicator: David Mullan

Date: June 29, 2005

Citation: 2005 HRTO 19

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 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Sharon Ffolkes-Abrahams, ) Counsel and Richard Miller, ) Student-at-Law

Joseph Modi, Complainant ) On his own behalf

Paradise Fine Foods Ltd, Corporate Respondent ) Muhamd Omarbach, Personal Respondent ) Louis Mostyn, Counsel and Sayed Ben Aycha, Personal Respondent ) Matthew Mostyn, Student-at- ) Law

INTRODUCTION

1In the course of the hearing of this complaint, an issue arose as to whether counsel for the respondents had violated the rule in Browne v. Dunn (1893), 6 L.R. 67 (H.L.). This rule requires that counsel in cross-examination put contradictory evidence to witnesses whose credibility he or she will be endeavouring to impeach by that contradictory evidence. Once counsel for the respondents conceded that he had breached the rule, the question for the Tribunal became what consequences should follow from that violation.

SUMMARY OF CONCLUSIONS

2In the case of the testimony of the complainant, I have determined that the appropriate response to the violation of the rule in Browne v. Dunn is to provide him with the opportunity to testify again subject to conditions spelled out below. I decline, however, to order that the witness, Simon Ayume be subject to recall. Rather, I will respond to the violation of the rule in Browne v. Dunn with respect to his testimony by way of the weight to be attributed to the contradictory testimony of the respondent, Sayed Ben Aycha. The extent to which I will discount the testimony must await my final decision and will in part be dependent on what transpires with respect to the complainant’s option to testify again.

FACTS

3The complainant, Joseph Modi is alleging unequal treatment in services on the basis of his creed, ethnic origin and place of origin as proscribed by sections 1 and 9 of the Ontario Human Rights Code (“Code”). The events giving rise to this complaint took place on January 27, 1999 at the business premises of the corporate respondent, Paradise Fine Foods Ltd. Central to what occurred that day were the complainant, who had entered the premises to buy meat, the respondent, Sayed Ben Aycha, who was working in Paradise Fine Foods Ltd.’s store as a butcher, and Simon Ayume, another potential customer in the store.

4The complainant testified as to what happened in the store that day. That testimony implicated the respondent Sayed Ben Aycha. Counsel for the respondents cross-examined the complainant. Simon Ayume also testified for the Human Rights Commission (“Commission”) as to what took place in the store. He too implicated Sayed Ben Aycha, and counsel for the respondents also cross-examined him.

5When Sayed Ben Aycha testified, he presented an account that was almost totally at odds on critical points with those provided by the complainant and Simon Ayume. Counsel for the respondent had not put this version of the events to either the complainant or the witness in cross-examination.

6Subsequently, counsel for the Commission raised the issue whether counsel for the respondents had violated the rule in Browne v. Dunn in failing to confront the complainant and the witness with the account that Sayed Ben Aycha would be advancing when he testified. Counsel for the respondents rejected the contention that he had acted improperly and professed unawareness of the rule in Browne v. Dunn. I then set the matter over for further argument on the following day.

7At the resumption of the hearing, counsel for the respondents conceded that there had been a breach of the rule in Browne v. Dunn. On the facts, this concession was appropriate. The submissions of counsel were thereafter confined to what should happen in response to this breach.

SUBMISSIONS OF COUNSEL

8For the Commission, Richard Miller argued that, while the Commission was not asking me to strike Sayed Ben Aycha’s testimony from the record, the proper course of action was for the Tribunal to give that testimony significantly diminished weight. On the basis of hardship particularly, he argued that I should not deal with the matter by way of recalling or allowing for the recall of the complainant and the witness, Simon Ayume.

9In the instance of the complainant, Richard Miller asserted that, while the complainant was obviously available for recall, it would not be fitting, given the nature of the complaint and the extensive cross-examination to which he had already been subjected, to in effect require him to take the stand again and face further cross-examination.

10As for Simon Ayume, there were two added dimensions. Apparently, he had taken an unpaid day of leave from his employment in order to testify in this matter, and it was asserted that, in the circumstances, I should not demand a repetition of that sacrifice. In addition, counsel for the Commission urged that, in any event, it would be unfair to require him to re-attend given the events surrounding his original testimony. Those events, which are detailed in an earlier interim ruling appended to this one (Appendix A), involved the respondent, Muhamd Omarbach following and eventually chasing Simon Ayume during the luncheon adjournment in what was said by counsel for the respondents to have been an overly enthusiastic and misguided effort to ensure that Simon Ayume did not communicate with the complainant during the recess and while under a Tribunal order not to do so while still testifying. As a consequence, I condemned the actions of the respondent, Muhamd Omarbach, required and received apologies from him and counsel for the respondents, and ordered that there be no further following of anyone during the course of these proceedings. Simon Ayume was obviously very upset by this course of events and, indeed, stated that he feared for his physical safety, and even his life during the pursuit. Given this, the Commission argued that it would not be proper to require his re-attendance.

11Counsel for the respondents took the position that, in deciding what should be the consequences of the violation of the rule in Browne v. Dunn, I should take into account the fact that counsel was unaware of the rule and also that, at the time that he was cross-examining the complainant and Simon Ayume, he was not fully aware of the details of the impending testimony of Sayed Ben Aycha.

ANALYSIS

12The rule in Browne v. Dunn is part of Canadian law. The Supreme Court of Canada endorsed it almost a century ago in Peters v. Perras (1909), 1909 CanLII 178 (SCC), 42 S.C.R. 244. Much more recently, the Court of Appeal for Ontario has accepted its continued application in R. v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212 (C.A.), relying in part on other contemporary authorities: R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628 (C.A.) and R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont. C.A.).

13What remains more contentious is the appropriate response to a breach of the rule in any particular case. While total rejection of the contradictory evidence might theoretically remain an option, the reality of the modern jurisprudence appears to be that a failure to adhere to the rule “goes to weight rather than admissibility” (R. v. Purba, [2004] O.J. No. 2603 (O.C.J.) (Q.L.) at para. 32, per Lampkin J.). However, it is also clear that attributing diminished weight to the subsequent evidence is not the only option that the trier of fact should consider in exercising her or his discretion. Indeed, it is not even the generally preferred option.

14In R. v. McNeill, supra, at paras. 47-50, Moldaver J.A. (delivering the judgment of the Court) offered a number of suggestions for dealing with violations in the context of a criminal trial. The first option and one that seems equally apposite in the case of an adjudication of an alleged violation of the Code is “whether the witness is available for recall”. If so, it is then incumbent on the adjudicator to determine whether in all the circumstances “recall is appropriate”. If it is appropriate, Moldaver J.A. goes on to state that the “aggrieved party may either take up the opportunity or decline it”. If the opportunity is declined, then the implication seems to be that the effect of the violation of the rule is spent. If the invitation is accepted, “the mechanics of when the witness should be recalled and by whom should be left to the discretion of” the adjudicator. (Subsequently, the Court again endorsed this approach in R. v. Diu (2000), 2000 CanLII 4535 (ON CA), 49 O.R. (3d) 40 (C.A.) at paras. 181-82.)

15Where recall is “impossible or highly impracticable…or otherwise inappropriate”, it is for the adjudicator to determine how to proceed. Translated to the context of this human rights adjudication, as opposed to a jury trial in a criminal matter, that involves deciding on the extent to which the weight given to the contradictory testimony should be diminished and how the circumstances affect the weight to be given to the testimony of the complainant and the other witness.

16While I accept that a return to the witness stand will not be emotionally easy for the complainant, he has been present throughout the proceedings and is aware of the extent to which Sayed Ben Aycha’s testimony varied from his own. Accepting that counsel for the respondent did not deliberately set out to violate the rule in Browne v. Dunn, I rule that the complainant be provided with the opportunity to return to the witness stand if he so wishes to respond to the testimony of Sayed Ben Aycha. Given my obligation to ascertain the truth and the somewhat less formal nature of these proceedings, a significant discounting of the testimony of the respondent, Sayed Ben Aycha would in the circumstances be too drastic a response particularly as there were no other witnesses to the initial and crucial stage of the events that precipitated this complaint. However, in order to minimize the impact on the complainant of testifying again, I also rule that counsel for the Commission, rather than counsel for the respondents have the initial responsibility for putting the Sayed Ben Aycha version of events to the complainant. Thereafter, counsel for the respondents will be entitled, if he so wishes, to cross-examine him, subject thereafter to the Commission’s normal rights of re-examination.

17The complainant may, of course, choose not to take this opportunity. In that event, I would treat the violation of the rule in Browne v. Dunn as spent in his case. It would thereafter have no impact on the weight that I give to the testimony of either the complainant or Sayed Ben Aycha.

18With Simon Ayume, however, I find that there are compelling reasons that he should not be subject to recall. Aside from the potential economic impact of his having to return to the Tribunal to testify, the events surrounding his initial testimony render it inappropriate that he be asked to do so. He was subjected to highly inappropriate harassment by one of the respondents acting in effect as the agent of the respondents’ lawyer. This caused him obvious distress. Despite the factors that influenced me to rule that significant discounting of Sayed Ben Aycha’s testimony would be an inappropriate response in the instance of the complainant, I nonetheless rule that, in the instance of Simon Ayume, the unfairness of requiring him to return outweighs those factors. In assessing the weight to be given to the testimony of both Sayed Ben Aycha and Simon Ayume, I will therefore take into account the fact that Simon Ayume was never confronted by Sayed Ben Aycha’s version of the critical events. That means that there will almost inevitably be some discounting of the weight to be given to Sayed Ben Aycha’s testimony. How precisely I deal with that matter, however, cannot be resolved in isolation from the situation of the complainant and whether he takes the opportunity to testify again. I will therefore deal with the issue of weight in my final decision and in the light of what transpires in the instance of the complainant.

Order

19The Tribunal orders as follows:

a) the complainant, Joseph Modi be given the opportunity to return to the witness stand for the purposes of responding to the testimony of the respondent, Sayed Ben Aycha;

b) in the event that he should take up this option, counsel for the Commission is charged with responsibility for putting Sayed Ben Aycha’s testimony to him, subject thereafter to the respondents’ normal rights of cross-examination (and re-examination by counsel for the Commission);

c) in the event that he declines this option, the violation of the rule in Browne v. Dunn will be treated as spent as against the complainant; and

d) the witness, Simon Ayume not be subject to recall and that the violation of the rule in Browne v. Dunn in the case of his testimony be dealt with by way of the weight to be attributed ultimately to the evidence of Sayed Ben Aycha.

Dated at Toronto, this 29th day of June, 2005

“David Mullan”

David Mullan

Member

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Joseph Modi

Complainant

-and-

Paradise Fine Foods Ltd.

Sayed Ben Aycha, Muhamd Omarbach

Respondents

INTERIM DECISION

Adjudicator: David Mullan

Date: June 7, 2005

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 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

INTRODUCTION

19When the Tribunal broke for the luncheon adjournment on Friday, June 3, 2005, Simon Ayume was testifying for the Commission. I administered the normal warnings not to speak to any witnesses, the parties or counsel during the break.

20When the hearing resumed, Mr. Ayume made a request to make a statement. After some initial hesitation as to the appropriateness of this, I permitted him to speak. He then outlined an incident alleged to have taken place over the luncheon period. Muhamd Omarbach, one of the respondents, seemed to be tailing him. After making several abrupt changes of direction, he found Mr. Omarbach still following him. This confirmed his suspicions and he then quickened the pace and took evasive action. After jumping a fence, scurrying through City Hall and into the Eaton Centre, he succeeded in evading Mr. Omarbach, who had begun to chase him. However, once Mr. Ayume returned to the Zurich Insurance Building, Mr. Omarbach appeared to be waiting for him and continuing to keep an eye on him. Mr. Ayume expressed considerable disquiet about this incident and stated that, while it was happening, he felt fear for his safety, indeed his life.

21Without prompting, Mr. Mostyn, counsel for the respondents rose and acknowledged that Mr. Ayume was telling the truth. Mr. Mostyn, fearful that Mr. Ayume would communicate with the complainant over the adjournment, had instructed his associate to keep an eye on him. The associate rather than doing this himself had asked Mr. Omarbach to do it for him. Mr. Mostyn conceded that, given the nature of the allegations in this complaint, this was a particularly unwise course of action.

22I indicated my grave concerns and displeasure with what had happened, and Mr. Mostyn apologized. I then directed Mr. Omarbach to rise and formally apologize to Mr. Ayume. He did. At that point, I directed that there was to be no more shadowing of any witnesses or parties during the course of this hearing.

23I then provided reassurance to Mr. Ayume on behalf of the Tribunal and stated that, unless counsel for the Commission wanted to make further submissions, I would accept the apologies and regard the matter as closed. Ms. Ffolkes-Abrahams, for the Commission, then stated that it was not at all clear to her that the following of Mr. Ayume was simply for the purpose of ensuring that he did not speak to the complainant. Rather, she suggested that it might have been for the purposes of intimidation. When I asked whether she wanted to formally put that in issue, she responded that she would do so on cross-examination if and when Mr. Omarbach testified. I ruled that she had the right to do this.

24When I suggested a break before the resumption of the cross-examination of Mr. Ayume, Ms. Ffolkes-Abrahams indicated that she wanted a short adjournment to enable her, inter alia, to take instructions. The Tribunal then adjourned for fifteen minutes.

25On the resumption of the hearing, Ms. Ffolkes-Abrahams indicated that she was prepared to accept Mr. Mostyn’s apologies. She also requested that I make a formal order that there be no more conduct of this kind.

Order

26I therefore ordered as follows: