Hancock v. McKesson Canada Corporation et al., 2007 HRTO 20

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lilia Hancock Complainant

-and-

Ontario Human Rights Commission Commission

-and-

McKesson Canada Corporation Frank Sedore, Marvin Kalchman, Joe Varkul and Alfredo Da Silva Respondents

INTERIM DECISION

Adjudicator: Mary Anne McKellar Date: July 17, 2007 Citation: 2007 HRTO 20 Indexed as: Hancock v. McKesson Canada Corporation et al.

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

1This is a complaint referred by the Ontario Human Rights Commission (“the Commission”) to the Human Rights Tribunal of Ontario (“the Tribunal”) under the Human Rights Code (“the Code”).

2All of the Respondents, with the exception of Alfredo Da Silva (“Da Silva”), are represented by the same counsel. Those parties, whom I shall refer to as the “Moving Parties”, have filed a motion in which they seek to have the complaint dismissed on the basis of delay and prejudice to them. In support of their motion the Moving Parties rely on the assertion that Frank Sedore (“Sedore”) is unable for medical reasons to participate in this hearing.

3The motion was scheduled to be heard on July 4, 2007. The supporting materials were delivered and filed on June 27, 2007. Those materials included an affidavit from Sedore’s attending physician. The Commission filed responding materials in the afternoon of July 3, 2007. These materials included an affidavit from a private investigator the Commission had retained to follow Sedore on June 28, 2007. On July 4, 2007, the Commission supplied the Moving Parties’ counsel with a copy of video footage taken by the private investigator. After hearing the submissions of the parties, I adjourned the motion until July 17, 2007 (a date previously scheduled for the hearing on the merits) in order to permit the Moving Parties to review the video. I indicated to the parties that my intention was to deal with the motion at the outset of the hearing on July 17, 2007 and that they should alert each other and the Tribunal on or before July 11, 2007 of the existence of any further issues that might further delay the motion. Counsel for the Commission advised that she might seek to cross-examine Sedore’s physician on her affidavit. I indicated that the parties should attempt to arrange for such cross-examination to occur in front of a special examiner and to file the transcript with me.

4By letter dated July 5, 2007, Commission counsel indicated she would seek to conduct her cross-examination of Sedore’s physician on July 17, 2007. On July 11, 2007, Counsel for the Moving Parties filed submissions in which she objected to the admissibility of the video surveillance and also objected to the cross-examination of Sedore’s physician. I convened a conference call to address these issues on July 16, 2007. All parties except Da Silva participated.

5During the conference call I was advised that Sedore’s physician was on vacation and would not be returning to her practice until July 18, 2007. It also appeared that the Commission and the Moving Parties had each assumed the other would be responsible for arranging for any attendance by the doctor. The consequence is that I understand the doctor may not have been aware prior to the commencement of her vacation that her attendance at a hearing would be sought for this week. In any event, counsel for the Moving Parties agreed that should I determine the Commission should be permitted to cross-examine the doctor, she would arrange for her attendance. I indicated that I would not insist that she attend prior to July 18, 2007.

6Subsequently, I suggested to the parties that I proceed to hear the motion on the basis of all materials filed save and except the evidence of the private investigator (the affidavit and video). If I were inclined to dismiss the motion in its entirety, it would not be necessary to engage in any factual inquiry respecting Sedore’s ability to participate. If I were inclined to grant any part of the motion, then I would determine the question of the admissibility of the surveillance evidence and the propriety of the cross-examination of the physician, and if my determinations on each of those matters were affirmative, that evidence would then be entertained. The Moving Parties were content to proceed on this basis. The Commission indicated that it needed to seek instructions, but would advise all parties and the Tribunal by no later than 3:00 p.m. July 16, 2007, if it was prepared to proceed on that basis. The Commission has since advised that it is not prepared to proceed on that basis. My determinations respecting the issues canvassed in the conference call are therefore set out below.

7The Moving Parties submit that the video surveillance is not admissible because it was unreasonably obtained and they note that Sedore’s family attributes the need for his recent hospitalization in part to his reaction at realizing he was being followed. The Moving Parties also note that the Commission stated that it engaged the private investigator in response to rumours it had heard that Sedore was “up and about”. The Moving Parties therefore suggested that the better evidence on Sedore’s condition would be the testimony of the persons who were the sources of those rumours.

8With respect to the question of the cross-examination of Sedore’s physician, the Moving Parties noted that they had had no indication of the Commission’s intentions in this regard prior to the motion date of July 4, 2007, and also asserted that in the absence of the Commission’s having filed any medical evidence of its own, the cross-examination was a fishing expedition.

9My determination is that the evidence of the private investigator, including the video surveillance, is admissible. The question of whether there is better evidence available goes to the weight (if any) to be given to that evidence, rather than to its admissibility. Similarly, although the Commission’s decision to engage a private investigator to follow a man who is acknowledged to be severely disabled may be viewed as questionable, this does not make the evidence so acquired inadmissible.

10I have also determined that the Commission is entitled to cross-examine Sedore’s physician on her affidavit. The Moving Parties are the ones relying on the contents of that affidavit and I do not think it can be considered “fishing” to provide an opposing party with an opportunity to test the credibility of those contents.

11Commission Counsel has advised that her cross-examination of Sedore’s physician will not take more than one hour. I am assuming that any re-examination will be even shorter. Counsel for the Moving Parties is therefore requested to contact the physician and arrange for her to be in attendance for two hours on Wednesday, July 18, 2007, commencing at 9:30 a.m. if possible, and to advise the Registrar of the Tribunal if there is any difficulty in that regard (including the nature of the difficulty). If it is not possible to make these arrangements until Wednesday (because the physician is currently on vacation), Counsel for the Moving Parties may arrange to have the Physician attend later in the day on July 18, 2007, or on Thursday, July 19, 2007.

12The hearing scheduled for Tuesday, July 17, 2007 is hereby adjourned. If Counsel for the Moving Parties advises the Tribunal (and the other parties) that she is unable to contact the physician before July 18, 2007 or that she cannot attend at any time on July 18, 2007, such notice shall be sufficient cause for the Registrar to adjourn that date as well.

13There has been some interest expressed in mediating this complaint (or part of it). If that is an option the parties wish to pursue, and they desire the assistance of someone from the Tribunal, they should contact the Registrar directly.