Ontario Human Rights Commission v. Popeye Restaurant, 2007 HRTO 35

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Donna Giguere

Complainant

-and-

Popeye Restaurant and Viola Landry

Respondents

DECISION

Adjudicator: Michael Gottheil

Date: October 17, 2007

Citation: 2007 HRTO 35

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

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 of this matter was held on August 14 and 15, 2007, in Thunder Bay.

2This decision deals with an issue which arose subsequent to the hearing.

3At the commencement of the hearing, the Commission indicated that it intended to call two witnesses: the Complainant, and Ms. Stacy McIvor, who was a friend of the Complainant. The Commission further indicated that, although she was served with a summons, Ms. McIvor was not present, the Commission was unable to contact her and therefore was unable to advise whether Ms. McIvor would in fact appear. Finally, the Commission advised that the proposed evidence of Ms. McIvor involved an incriminating statement allegedly made by the Respondent.

4Commission counsel proposed that the hearing proceed with the evidence of the Complainant and that the Commission would advise of its position if Ms. McIvor had not appeared by the time the Complainant’s evidence was completed. The hearing proceeded as proposed by the Commission. In her evidence in chief, the Complainant testified that Ms. McIvor told her about the alleged incriminating statement made by the Respondent. No objection was raised by the Respondent to what was clearly hearsay evidence, although the Respondent, in her testimony, denied the substance of the alleged statement.

5At the conclusion of the Complainant’s testimony, Commission counsel advised that Ms. McIvor had still not appeared and that she (Commission counsel) had not been able to contact her. The Commission advised that it was not seeking any action from the Tribunal in regards to Ms. McIvor’s non-attendance and would not be calling her as a witness. The Commission had no other witnesses.

6The Respondent testified on her own behalf and the Commission called the Complainant in reply. The parties then presented their closing submissions.

7On or about September 7, 2007, counsel for the Commission sent correspondence indicating that the Commission had finally contacted Ms. McIvor. Counsel advised that when Ms. McIvor was asked why she did not attend the hearing, even though she was under a legal obligation to do so, Ms. McIvor replied that the Complainant had offered her $2000 to provide false evidence, and she was not prepared to perjure herself. The Commission advised that it had put this allegation to the Complainant and she denied Ms. McIvor’s allegation.

8The Commission submitted that, in view of this information, the Tribunal should disregard the Complainant’s evidence insofar as it related to Ms. McIvor and the alleged incriminating statement, but should otherwise accept the Complaint’s evidence and proceed to make a final determination in the Complaint.

9The Tribunal directed the other parties to provide their comments on the Commission’s correspondence and request. The Complainant wrote, indicating that the allegations being made by Ms. McIvor were completely false. The Respondent wrote stating that the new information was related to the credibility of the Complainant and that credibility was a significant issue in the case.

10Neither the Complainant nor the Respondent are represented by counsel.

Decision

11The Tribunal commends Ms. Case (counsel for the Commission) for bringing this information to the attention of the Tribunal. Her actions are entirely consistent with her duty to the Tribunal, her professional obligations and the Commission’s role to act in the public interest.

12Nonetheless, I do not feel that the appropriate course of action in these circumstances is for the Tribunal to simply disregard the evidence of the Complainant as it relates to Ms. McIvor and the alleged incriminating statement. The allegations now being made by Ms. McIvor are extremely serious. Credibility is at issue in this case, and the allegations of Ms. McIvor, if true, would impact on the trustworthiness of the Complainant’s testimony. In addition, attempts by a party to encourage a witness to give false evidence seriously undermines the integrity of the Tribunal process, and may subject the party to various consequences, including contempt proceedings before the Courts. The Tribunal cannot ignore the allegations and simply discount a portion of evidence given under oath. This is particularly so where the party allegedly encouraging false testimony is the Complainant, and where the Complainant is the Commission’s sole witness. The Tribunal must make some inquiries into the allegations.

13As a result, I hereby order that the hearing be reconvened, and that Ms. McIvor as well as the parties attend. I note that Ms. McIvor remains under a Tribunal subpoena which was served on her by the Commission, and she is legally obliged to attend. At the commencement of the hearing, Ms. McIvor will testify under oath regarding her allegations that the Complainant encouraged her to give false testimony. The Tribunal may ask her questions. The parties will have an opportunity to cross-examine Ms. McIvor. The Complainant will then testify, the Tribunal may ask questions and the other parties will have an opportunity to cross-examine her. The Complainant and Ms. McIvor may wish to consult legal counsel in advance of the hearing.

14If any party believes the Tribunal should hear from any other person, they must advise the Tribunal in writing, copied to the other parties within 14 days of this decision. At the same time they must set out the name of the proposed witness and a brief summary of their anticipated evidence.

15At the hearing, the parties should also be prepared to make submissions on how the Tribunal should proceed in light of the circumstances, including any testimony given at the hearing.

16The Tribunal emphasizes that the only purpose of this hearing is to inquire into the allegations made by Ms. McIvor. It is not an opportunity for the parties to introduce evidence or make submissions on any other matter.

17The Tribunal also emphasizes that at this point, all that is before the Tribunal is the Commission’s advice that Ms. McIvor has made an allegation that the Complainant offered her money to give false evidence, and the Complainant’s denial of the allegation. Nothing has been proven and the Tribunal has made no determination as to whether the allegation is true.

18The hearing will take place in Thunder Bay on November 15, 2007, commencing at 9:30 am. The Registrar will advise of the location. The Tribunal will send a copy of this decision to Ms. McIvor. However the Commission is also directed to send a copy of the decision to Ms. McIvor and ensure that she has received same.