Giguere v. Popeye Restaurant, 2007 HRTO 26

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Giguere

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Popeye Restaurant and Viola Landry

Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: August 13, 2007

Citation: 2007 HRTO 26

Indexed as: Giguere v. Popeye Restaurant

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 brought under the Human Rights Code, R.S.O. 1990, c.H.19 as amended (“the Code”), alleging an infringement of sections 5(1), 9 and 12. The original complaint is dated July 9, 2004 and was amended January 2, 2006. The complaint was referred to the Tribunal on April 26, 2006. The hearing in this matter is scheduled to commence on August 14, 2007 in Thunder Bay.

2This decision deals with a request by the Commission to have certain evidence entered by way of affidavit.

3By letter dated August 8, 2007 the Commission requested consent of the Tribunal that the evidence of Commission investigators be introduced through affidavit and that cross-examination, if necessary, be conducted through teleconference. The Tribunal issued a direction to the Commission that the proposed affidavits be served on the other parties and filed with the Tribunal by August 9, 2007 and that the other parties provide any comments on the Commission’s request by August 10, 2007.

4The Commission filed affidavits of Olanyi Parsons and Anya Kater, both Commission Investigators who conducted a fact-finding meeting into the complaint on November 8, 2005. It appears that the purpose of the two affidavits is to introduce a number of documents into evidence. One of the documents is the attendance sheet from the fact-finding meeting. There are several letters from the Commission addressed to the Respondents. Two documents are letters dated September 8, 2004 and September 23, 2004 which were sent to the Commission, and purport to be written by the Respondent Viola Landry. Finally there is an unsigned witness statement of the Respondent Viola Landry which was prepared by Ms. Kater following the fact-finding meeting.

5The Complainant did not file any comments on the Commission’s request. The Respondents filed a letter in which they raise concerns about the late submission of documents and evidence.

Attendance Sheet and Letters from the Commission to the Respondents.

6The Tribunal is prepared to have these documents entered through the affidavits, without the need to have Ms. Kater and Ms. Parsons testify in person. There does not appear to be a dispute about who attended the fact-finding meeting, or that the Commission sent various letters to the Respondents.

Letters dated September 8, 2004 and September 23, 2004.

7To the extent that the evidence of Ms. Parsons and Ms. Kater is to identify the two letters as having been received by the Commission and having been placed in the Commission’s investigation file, the Commission may rely on the affidavits, and there is no need to have the Investigators testify in person for that purpose. However, in so ruling, the Tribunal makes no finding about whether the contents of the letters are accurate or whether they were in fact written by the Respondent. Those are matters which may be explored at the hearing.

Unsigned Witness Statement of Viola Landry

8Exhibit 9 of Ms. Kater’s affidavit is an unsigned document entitled “Witness Statement.” The affidavit discloses that it was prepared by Ms. Kater from her notes of her interview with Ms. Landry at the fact-finding meeting on November 8, 2005.

9Quite apart from whether this document may be introduced through an affidavit rather than through in person testimony, it is not clear to the Tribunal what the purpose or usefulness of this document would be, particularly if it is proposed to be introduced during the Commission’s case. While a signed statement or a verbatim transcript of a witness may, in certain circumstances, be used to cross-examine as a prior inconsistent statement, this document is an edited compilation of Ms. Kater’s notes and has not been confirmed as being accurate or complete by Ms. Landry. Nor has Ms. Landry given any evidence which might trigger a need to call evidence about what she said to investigators at the fact-finding meeting. At this stage of the proceeding the Tribunal is not prepared to allow this document to be introduced through the affidavit of Ms. Kater.