HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Colin Francis
Complainant
-and-
Gordian Operations Inc. o/a Whistlers Restaurant, George Mastoras and Steve Mastoras
Respondents
INTERIM DECISION
Adjudicator: David J. Mullan
Date: November 24, 2005
Citation: 2005 HRTO 52
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 ) Richard Miller, Counsel Colin Francis, Complainant ) On his own behalf Gordian Operations Inc., o/a Whistlers Restaurant, ) George Mastoras and Steve Mastoras, ) John Mastoras, Counsel Respondents )
INTRODUCTION
[1] This matter arises out of the hearing of a complaint of discrimination on the basis of race and colour in an employment setting under section 5(1) of the Human Rights Code. The Complainant is a former employee of the Respondent, Gordian Operations Inc., which carries on a restaurant business under the name of Whistlers Restaurant (“Whistlers Restaurant”). The personal Respondents have an ownership share in the restaurant and, at the relevant times, were in charge of its day-to-day operations. They managed the restaurant.
[2] The hearing of this matter was set down for four days. The first day of the hearing, November 22, 2005, was occupied by the testimony of the Complainant, Colin Francis. When the hearing was adjourned on that day, Mr. Mastoras, counsel for the Respondent was cross-examining the Complainant. As a result of events that occurred during the continuation of that cross-examination on the next day, November 23, 2005, Mr. Mastoras made a motion to the effect that the hearing be adjourned sine die.
RULING
[3] The motion is granted subject to directions.
FACTS AND ARGUMENTS
[4] Colin Francis testified that, on quitting his job at Whistlers Restaurant on September 12, 2000, he started seeking alternative employment within a few days. That search ended only when he secured employment in the kitchen at Upper Canada College starting on January 7, 2001. He reiterated this on cross-examination. In this context, it emerged that his employer at Upper Canada College is not the College itself but Aramark Canada Ltd. (“Aramark”), which has the food contract at the College.
[5] When asked why the documentation submitted by the Commission as Exhibit 1 in the proceedings, contained no tax form for 2000 earnings at Aramark, Mr. Francis testified that his only earnings from Aramark during that year were less than $100. This represented pay for a day on which he was being tested on his suitability for work in the Upper Canada College kitchen and Aramark had not provided a tax form for this.
[6] Mr. Mastoras for the Respondents then pressed Mr. Francis on this testimony and put it to Mr. Francis that he was intending to call evidence to the effect that Mr. Francis had worked for Aramark from as early as September 13, 2000, the day following his last day at Whistlers Restaurant. After some reflection, Mr. Francis conceded that he had commenced work with Aramark as early as September 2000. While not prepared to admit that he was a full time employee of Aramark, he admitted to working regularly for 30 hours a week and also to having become a regular employee on passing the company’s three month probationary period.
[7] Mr. Mastoras then indicated that he intended to move for an adjournment of the proceedings sine die to provide the Commission with an opportunity to evaluate its position with respect to further carriage of the complaint and also to enable him to take instructions on what, if any other, motions he should make. Mr. Miller, for the Commission, raised no immediate objection to this course of action but asked that I not deal with the motion until such time as Mr. Mastoras had completed his cross-examination and Mr. Miller had conducted what he asserted would be a brief re-examination of the witness. I ruled that Mr. Mastoras should complete his cross-examination. However, I rejected Mr. Miller’s suggestion that he should be allowed to conduct his re-examination before I dealt with the motion for an adjournment. It was my sense that the nature and impact of any re-examination of Mr. Francis might well depend on factors that were animating Mr. Mastoras’s motion for an adjournment.
[8] At this juncture, Mr. Mastoras indicated that his cross-examination had concluded and I adjourned the proceedings for two hours to afford all parties (and, in particular, the Commission and Mr. Francis) an opportunity to evaluate their position on the motion to adjourn the proceedings sine die. For these purposes and with the consent of Mr. Mastoras, I discharged Mr. Francis from his obligation not to communicate with counsel for the Commission during the course of his testimony.
[9] On resumption of the hearing, Mr. Miller stated that he did not oppose the motion to adjourn but argued that, before any such adjournment, he should be able to call two further witnesses, both co-workers of Mr. Francis at Whistlers Restaurant. His rationale for this was two-pronged. Both had taken time off work to testify at the Tribunal that day. Also, the Commission’s assessment of the position that it should take with respect to the future conduct of the proceedings would be better informed in the light of the testimony of those two witnesses.
[10] Mr. Francis adopted the Commission’s position and also offered an apology for lying to the Tribunal. He justified his conduct on the basis that the matter of what happened after he quit Whistlers Restaurant was not the core of the case; the core of the case was the discrimination to which he had been subjected while an employee at the restaurant.
[11] Thereafter, Mr. Mastoras indicated that he was still moving for an adjournment sine die. He also provided a detailed litigation protocol which he suggested should be followed in the wake of any adjournment. The object of this protocol was to force an expeditious determination of whether this hearing was to continue and, if so, on what terms. He asserted that expedition was important in view of the age of the Respondent, George Mastoras and the length of time the respondents had already been subject to these proceedings.
[12] As for the merits of the motion to adjourn, Mr. Mastoras argued that, given that the complainant had lied “repeatedly” to the Tribunal, the hearing should not proceed until such time as the Commission had engaged in a meaningful evaluation whether its public interest mandate would allow it to continue to take carriage of the matter.
REASONS
[13] This is a case in which issues of credibility will inevitably be critical.
[14] I cannot at this stage assent to Mr. Mastoras’s contention that Colin Francis has lied repeatedly in the course of his testimony. However, there is no question that he lied to the Tribunal about what happened after he quit his job at Whistlers Restaurant on September 13, 2000. That also brings into question his testimony as to the reasons for his quitting. As to the rest of his testimony, it would not be appropriate for me to make any comment at this stage of the proceedings.
[15] Lying to the Tribunal is an extremely serious matter. It is one of the underpinnings of our system of courts and tribunals and the effective functioning of the justice system that those testifying live by their solemn promises (in this case by affirmation) to tell the truth. When, as here, that obligation is violated, that raises an issue for not only the parties but also the Tribunal itself. In particular, as someone charged with upholding the integrity of the administration of justice under the Human Rights Code, I am obliged to consider seriously whether I should in this case take one or both of the following steps:
Of my own motion, state a case to the Divisional Court under section 13(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 for inquiry into whether the conduct of the complainant, Colin Francis, constitutes contempt of this Tribunal.
Report the matter to the police for possible investigation into whether the conduct of the complainant, Colin Francis constitutes perjury under sections 131 and 132 of the Criminal Code. R.S.C. 1985, c. C-46.
As long as those remain possible courses of action, I am not prepared to continue with the further hearing of this case.
[16] Indeed, it is not only I who has such options to consider. Mr. Mastoras, and especially his clients, may well need time to evaluate what further motions and actions they may want to take in relation to the conduct of Mr. Francis. It is not appropriate, in my view, to proceed with this hearing until such time as they have had an opportunity to reflect on what occurred at the hearing on November 23, 2005.
[17] I recognize the inconvenience to them in my not hearing the testimony of the two witnesses who took time off work to attend on November 23 in order to give evidence. If the hearing continues at some future point, they will probably have to return to testify. However, in this instance, that concern is outweighed by other considerations. It is also my position that, given the course of events, those two witnesses should not testify until after Mr. Miller re-examines Colin Francis. For the reasons already identified, I was of the view that that re-examination should not take place at the hearing on November 23. Indeed, even if it had, given the lateness of the hour, it was unlikely that the testimony of both of the other witnesses would have been concluded.
[18] As for the contention that the Commission’s evaluation of its position in relation to this complaint would be better informed by a record of the testimony of the two co-workers, I recognize that this might indeed provide fuller information. However, it is not a significant prejudice if the Commission does not have the benefit of that testimony. The Commission has presumably interviewed these witnesses and has some basis for determining what they are likely to say in testimony on the strength of those interviews and the will says that it has prepared and provided to the Respondents.
[19] I was therefore not prepared to accede to the Commission’s request that a grant of the Respondents’ motion to adjourn the hearing sine die be postponed until such time as the two co-workers had testified. Given that the Commission did not otherwise object to the grant of the motion and given that the Commission accepted that it will need time to evaluate its position in relation to the further conduct of these proceedings, I therefore granted the motion.
[20] While there is much to be said for Mr. Mastoras’s litigation protocol and the reasons behind it, I do not regard the adoption of such a detailed protocol as necessary at this stage to ensure that there be an expeditious resolution of what should happen with this complaint. With a view to that end, I am attaching a number of conditions in the nature of a timetable to the order granting the motion. To the extent that that timetable anticipates the possibility that the parties may need to come up with a mutually agreed upon set of terms and conditions for any future conduct of these proceedings, I urge upon the parties the availability of the Tribunal’s mediation facilities in the settling of those terms and conditions.
ORDER
[21] The motion that the hearing be adjourned sine die is granted subject to the following conditions:
The Commission advise the Registrar by December 9, 2005 whether it intends to continue the carriage of this complaint.
The Complainant also advise the Registrar by December 9, 2005 whether he intends to proceed with this complaint.
In the event that the Commission and/or the Complainant indicate an intention to proceed with this complaint, the Respondents advise the Registrar by December 16, 2005 whether they intend to make any motions or take any other course of action with respect to the continuation of the complaint and/or the impugned conduct of the Complainant.
In the event that the Commission and/or the Complainant indicate an intention to proceed with this complaint, the Tribunal is to decide by December 16, 2005, and notify the Registrar whether it intends to take any action with respect to the conduct of the Complainant.
If neither the Respondents nor the Tribunal decide to take any further actions as specified above, the parties will use their best efforts to produce a mutually agreed upon protocol setting out the terms and conditions for the further conduct of this hearing by January 6, 2006.
In the event that such an agreement is not forthcoming, the parties will immediately notify the Registrar with a view to arranging a conference call or hearing to determine the terms and conditions on which the hearing is to proceed.
Dated at Toronto, this 24th day of November, 2005
“Signed By”
David J. Mullan
Member