Ontario Human Rights Commission and Anthony Tubbs v. Universal Workers Union, LIUNA Local 183, 2005 HRTO 39

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Anthony Tubbs

Complainant

-and-

Universal Workers Union, LIUNA Local 183, Daniel Avero, Roger Quinn and Tony Dioniso

Respondents

INTERIM DECISION

Adjudicator: Mary Ross Hendriks

Date: October 6, 2005

Citation: 2005 HRTO 39

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

APPEARANCES

Ontario Human Rights Commission ) Eddie Taylor, Counsel Anthony Tubbs, Complainant ) Winston Mattis, Counsel Universal Workers Union, LIUNA Local 183, ) Ron Lebi, Counsel Daniel Avero, Roger Quinn and Tony Dioniso )

INTRODUCTION

1Several motions were brought by counsel on September 28, 2005, seeking a clarification on some issues arising from the Tribunal’s Order of August 16, 2005 (the “Order”), in which it permitted the Commission to amend the Complaint to include the ground of reprisal pursuant to section 8 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The Order permitted seven incidents of alleged reprisal to be added, on certain terms. In particular, the Tribunal ordered that witnesses and documents that could shed light on these new allegations be produced, and that the pleadings be amended.

2As a practical matter, the Tribunal directed counsel for the Commission to facilitate personal service of the summons on the witnesses named in the Order, further to Rule 67 of the Tribunal’s Rules of Practice. The Order did not specify who would call each witness first, nor who would be permitted cross-examination, and counsel asked that the Tribunal resolve this matter. There were some other related issues pertaining to production and disclosure, which counsel also asked that the Tribunal resolve. No motion materials were filed in conjunction with the hearing of these motions.

MOTIONS

3Several motions were heard, as follows:

(1) A motion to stipulate who would examine the witnesses first and who would cross-examine them;

(2) A motion to stipulate which Rules will apply in the questioning of witnesses;

(3) A motion seeking directions on disclosure generally;

(4) A motion seeking directions on disclosure of documents sought to be introduced through cross-examination;

(5) A motion seeking an order that documents upon which the Respondents seek to claim privilege are at least identified according to: solicitor-client privilege; litigation privilege; and the Wigmore test of whether the documents originated in confidence; and

(6) A motion seeking a ruling on the status of some new allegations made by the Complainant during his testimony, to determine whether the Tribunal is considering them for any reason beyond assessing credibility.

SUBMISSIONS

4The first motion, brought by counsel for the Commission, asked the Tribunal to determine who should examine each of the witnesses. Mr. Taylor suggested that he should proceed first with the police officers and Mr. Shaw, and that the other witnesses should be examined by Mr. Lebi first since it would be most logical if those who work for the union were called by the union. Mr. Taylor urged the Tribunal to direct that will says be required, within the next ten to fifteen days, so that counsel can anticipate what evidence will be given and prepare their examinations accordingly. Mr. Mattis agreed with Mr. Taylor on these points, and urged the Tribunal to consider the close business relationship that the contractors have with the union.

5In the alternative, Mr. Taylor asked that if he has to lead each of the witnesses, that the Tribunal declare the witnesses whom he believes have a relationship to the union as hostile witnesses to the Commission, and by analogy referred to the Evidence Act, R.S.O. c. E. 23.

6Mr. Lebi opposed this scheme, and said that while he shared Mr. Taylor’s view that the Order did not stipulate at whose direction the summons were made, he thought that the Tribunal was prepared to play a role analogous to the Commission during its investigation phase, since he understood from the Order that the witnesses belonged to the Tribunal. In any event, he urged the Tribunal to either order that the Tribunal or the Commission question the witnesses first, and allow all other counsel to cross-examine them, since the witnesses will be testifying about allegations made against the Respondents, and so it would be unfair if the Respondents should have to lead evidence of this nature.

7The second, related motion was brought by Mr. Lebi, who asked the Tribunal to stipulate which Rules will apply to the questioning of witnesses.

8The third motion was brought by Mr. Mattis, who asked the Tribunal to provide some general directions on disclosure and production. He expressed serious concern that there is a gap in the evidence produced by the Respondents relating to reprisal, and that he wants an order made so that he can see the documents that will be put to each of the witnesses in advance. Moreover, he argued that if the Tribunal directs the Respondents to call certain witnesses first, then it should make the corollary order that no further documentary evidence that has not yet been disclosed be accepted by the Tribunal, as a breach of the Rules and as a matter of natural justice and fairness.

9The fourth motion was brought by Mr. Mattis, who asked for a specific ruling on the admissibility of documents being introduced through cross-examination that have not been previously disclosed.

10Mr. Mattis brought the fifth motion on the scope of any privilege claimed. He asked for a ruling that documents upon which the parties may seek to claim privilege are at least identified according to one of three categories: solicitor-client privilege; litigation privilege; and the Wigmore test of whether the documents originated in confidence. Further, he said that he reserves the right to argue the issue of privilege if it should surface again later.

11Finally, Mr. Lebi asked the Tribunal for a ruling on the status of some new allegations made by Mr. Tubbs during his testimony, because he is concerned that Mr. Tubbs is attempting to demonstrate a pattern of misbehaviour and misconduct. He has asked the Tribunal to make a ruling on the status of some of these new allegations within the context of this Complaint, other than as they relate to credibility. He maintains that the parties have all had the opportunity to amend their pleadings, and since no new allegations have been added to the allegations made under section 6 of the Code, he would appreciate a ruling on the context and narrative being provided.

DECISION

12The Tribunal has granted all the motions brought, and made a number of specific rulings in connection with same, which are set out in detail in the Order below.

ANALYSIS

13The Tribunal sets out its analysis of each motion brought, below.

Motion #1

14The Tribunal has determined that in the interests of natural justice and fairness, counsel for the Respondents will lead the examination of the election judges that the union hired in 2000, and the unnamed others who maintain the union’s membership records, as previously directed in the Order. Should the individuals who created or controlled the membership records relating to Mr. Tubbs’ status in 2000 be unavailable, then the Tribunal can still accept those records as evidence and directs that they be entered by the Respondents, as per section 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S. 22 (the “SPPA”), Rule 64 of the Rules of Practice, and the common law test set out by the Supreme Court of Canada in Ares v. Venner 1970 CanLII 5 (SCC), [1970] S.C.R. 608. The Tribunal directs that counsel for the Respondents provide will says for these witnesses, forthwith.

15The Tribunal has also determined that in the interests of natural justice and fairness, counsel for the Respondents will lead the examination of its own employees, being: Joao ‘Battista’ Alves, Al Bremner and Jorge Vala. Counsel for the Respondent will also lead the evidence of a union official from a different union, Claudio Mazzotta. It is clear to the Tribunal from Mr. Lebi’s question of Mr. Tubbs regarding his non-attendance at the June 23, 1999 Ontario Labour Relations Board (“OLRB”) hearing concerning the grievance filed on his behalf against Riklis Construction Ltd., that Mr. Mazzotta had on at least that occasion acted as this union’s representative in conjunction with its dealings with Mr. Tubbs. The Tribunal directs that counsel for the Respondents provide will says for these witnesses, forthwith.

16For the sake of completeness, the Tribunal also requires counsel for the Respondents to lead the evidence of the Personal Respondents, Mr. Quinn and Mr. Dionisio, for whom he already acts. The Tribunal directs that counsel for the Respondents provide will says for these witnesses, forthwith.

17The Tribunal has accepted the suggestion of counsel for the Commission that he should lead the evidence of Hugh Shaw, who is Mr. Tubbs’s former partner. Mr. Taylor will also lead the evidence of the two police officers that attended at the union’s office as a result of the occurrence in which the police were called, whom he correctly described during the motion as “neutral witnesses.” The Tribunal directs that counsel for the Commission provide will says for these witnesses, forthwith.

18The issue of who should lead the evidence of the contractors is problematic. They are relatively independent of the union, and in the case of Richard Mio of Riklis Construction Ltd., may be potentially hostile to the union because of the grievance it filed on Mr. Tubbs’s behalf. Certainly, the union will not have the same control over them that it has over its own employees, and the Tribunal takes seriously the comments by Mr. Lebi about fairness. In order to balance these competing interests, the Tribunal has determined that Mr. Taylor will lead the evidence of Richard Mio of Riklis Construction Ltd., John Lourenco of Benfica Construction Ltd., and Primo Fantin of Primarco Carpentry Inc., and ‘Marcello’ if he can be located. However, the Tribunal also accepts the suggestion of Mr. Taylor that these witnesses are likely to be hostile to the Commission, and deems them as such. For this reason, Mr. Taylor does not have to produce will says for these witnesses.

19Counsel for the Respondents had originally suggested that since the Tribunal had required these witnesses to appear, that it should lead the questioning, or require the Commission to lead the questioning for all witnesses. The Tribunal weighed those suggestions carefully but has rejected them for the reasons set out below.

20The Tribunal’s Order directing these witnesses to appear is an extraordinary step, which was not taken lightly. As noted by the late Mr. Justice Sopinka, Mr. Justice Lederman, and Professor Bryant, in The Law of Evidence in Canada, second edition, Butterworths Canada Ltd.:1999, at page 897, paragraph 16.2:

In general terms, it is the role of the parties, not the court, to call and examine witnesses. At common law, counsel have wide latitude to determine what witnesses to call, in what order, and what evidence to adduce from them. There are no witnesses which a party must call…

21The Tribunal took this unusual approach in order to bridge the gap between the original Complaint and the Amended Complaint. If these new allegations had been made earlier, the Commission would have had the investigative power under subsection 33(3)(d) of the Code to “question a person on matters that are or may be relevant…” to the Complaint. It did so as part of its ongoing obligation under section 39(1) to hold a hearing to uphold the intent of the Code, whose purpose is remedial: to eradicate discrimination, as per Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Comm.) (No.4) (2003), 2003 CanLII 89395 (ON SCDC), 51 C.H.R.R. D/440 (Ont. Div. Ct.), at paragraph 18, citing Grover v. Canada, 1994 CanLII 18487 (FC), [1994] F.C.J. No. 1000(QL), 24 C.H.R.R. D/390.

22According to Sopinka et al, supra, there are limits on the judge or adjudicator’s right to intervene, as set out at page 900, paragraph 16.11:

Although the trial judge’s role is no longer considered to be that of a mere adjudicator, there are limitations with respect to his or her involvement in the trial. Accordingly, if the trial judge takes over the examination of witnesses to the extent of descending into the arena, a new trial may be ordered. Furthermore, subject to the power to recall a witness, the trial judge should leave the leading of evidence to the parties. A new trial may also be ordered if the trial judge conducts an inquisitorial type of proceeding.

Motion #2

23Counsel for the Respondents asked the Tribunal for direction with respect to which Rules would apply to the questioning of witnesses, which is clearly related to the outcome of the first motion.

24Given that it was the Tribunal that ordered these witnesses to appear, all counsel will be given a very wide latitude to question them, notwithstanding the directions given in this Interim Decision about who must call them first. Obviously, the other counsel have the right to cross-examine these witnesses, but counsel who calls them first will also be given latitude on their questions posed in reply, and will be permitted to seek to contradict their testimony or undermine their credibility, since the order made with respect to who calls each of these witnesses was done as a matter of convenience and efficiency, rather than signalling that they are those parties’ witnesses in the ordinary sense. The Tribunal refers to Rule 14 of its Rules of Practice, which allows it to make this variance. As noted in Sopinka, et al, supra, at page 3, paragraph 1.2:

The essential purpose and feature of the trial system in our society is the search for the truth.

Motion #3

25Counsel for the Complainant brought this motion, asking the Tribunal to provide some general directions on disclosure and production, particularly with respect to the new allegations of reprisal.

26The requirements concerning disclosure, production and particulars are contained in Rules 41 to 48 of the Rules of Practice.

27As noted in Sopinka et al, supra, at page 30-19, paragraph 8, “ ‘disclosure’ means revealing the existence of a document: ‘production’ means producing the document for inspection.”

28The Tribunal relies on Rule 46, which provides:

Disclosure is an on-going obligation and each party must promptly disclose and produce:

(a) any relevant document subsequently acquired; and

(b) any changes to the information disclosed or provided.

29The Tribunal therefore directs all parties to disclose and produce any document related to the allegations of reprisal, whether or not the parties intend to rely on such evidence, forthwith, subject to a claim of privilege. The Tribunal will decline to accept any further documentary evidence that has not been disclosed and produced in accordance with these Rules.

Motion #4

30This motion was brought by counsel for the Complainant, who asked for a specific ruling on the admissibility of documents being introduced through cross-examination that have not been previously disclosed.

31Rule 48 of the Tribunal’s Rules of Practice is clear that non-compliance with these Rules or with an order for disclosure or production may result in the panel taking “any action it considers appropriate…” which includes “…refusing to allow a party to introduce evidence at the hearing that was not disclosed or produced or by placing conditions on the use of such evidence.”

32There is no equivalent to Rule 30.09 of the Rules of Civil Procedure within the Tribunal’s Rules of Practice, which contemplates that a party who has claimed privilege in respect of a document would seek to use it to impeach the testimony of a witness. Thus, the Tribunal is not prepared to make any exceptions for documents that have not been produced over which privilege has been claimed.

33The Tribunal hereby finds that it will not allow documents to be entered through cross-examination that have not been previously disclosed and produced in accordance with the Rules.

Motion #5

34Counsel for the Complainant brought a motion seeking a ruling on the scope of privilege claimed, so that documents upon which parties seek to claim privilege are at least identified according to one of three categories: solicitor-client privilege; litigation privilege; and the Wigmore test of whether the documents originated in confidence.

35Rule 44 states:

At the request of a party, and upon being satisfied that there are good reasons for doing so, the panel may order a party to provide a list of documents over which the party claims privilege and the grounds for the privilege asserted.

36After hearing from counsel, the Tribunal finds that documents over which privilege has be claimed should be identified according to one of the three above-noted categories.

Motion #6

37Counsel for the Respondents asked for a ruling on the status of some new allegations made by Mr. Tubbs concerning the practices of the union, which counsel suggested are an attempt to demonstrate a pattern of misbehaviour and misconduct. He asked the Tribunal to make a ruling on the status of these new allegations.

38The Tribunal agrees with counsel for the Respondents that no new allegations have been added under section 6 of the Code, and that the time to do so has passed. The Tribunal is prepared to hear these allegations as they pertain to credibility.

ORDER

39In accordance with these reasons, the Tribunal makes the following orders:

(1) The motion for a stipulation by the Tribunal of who examines the witnesses named in the Order of August 16, 2005 first and who cross-examines them is granted, on the following terms:

(a) Counsel for the Respondents will examine first the following individuals and provide will says for them: the 2000 union election judges, the unnamed others who maintain the union’s relevant membership records, Joao ‘Battista’ Alves, Al Bremner, Jorge Vala, and Claudio Mazzotta;

(b) Counsel for the Respondents will also examine first the Personal Respondents for whom he acts and provide will says for them, being: Roger Quinn and Tony Dionisio; and

(c) Counsel for the Commission will examine first the following individuals and provide will says for them: Hugh Shaw and the unnamed police officers;

(d) Counsel for the Commission will examine first the following individuals, deemed hostile to the Commission, being: Richard Mio, John Lourenco, Primo Fantin, and ‘Marcello’ if he can be located.

(2) The motion seeking direction on the questioning of witnesses has been granted. All counsel will be given a wide latitude to question these witnesses;

(3) The motion seeking general directions on disclosure and production has also been granted. The Tribunal directs all parties to disclose and produce any document related to the allegations of reprisal forthwith, whether or not the parties intend to rely on such evidence, subject to any claim of privilege. The Tribunal will decline to accept any further documentary evidence that has not been disclosed and produced in accordance with the Tribunal’s Rules of Practice;

(4) The motion seeking a ruling on the admissibility of documents introduced through cross-examination that have not been previously disclosed has been granted. The Tribunal finds that it will not allow documents to be entered through cross-examination that have not been previously disclosed and produced in accordance with the Rules of Practice;

(5) The motion seeking a classification of the documents over which privilege has been claimed has been granted, in accordance with Rule 44; and

(6) The motion seeking a ruling on the status of new allegations has been granted. The Tribunal is prepared to hear these new allegations as they pertain to credibility, but will not accept them as establishing a pattern of misbehaviour and misconduct.