HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Davis
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
City of Toronto
Respondent
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Davis v. City of Toronto
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@ontario.ca
Website www.hrto.ca
APPEARANCES
Robert Davis , Complainant ) On his own behalf
Ontario Human Rights Commission ) Anthony D. Griffin, ) Counsel and
) Raj Dhir, Counsel
City of Toronto, Respondent ) Darragh Meagher,
) Counsel
INTRODUCTION
1This is a complaint arising out of the refusal of the Toronto Fire Department to hire Robert Davis as a firefighter. Mr. Davis and the Ontario Human Rights Commission (the “Commission”) allege that this refusal was contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) in that Mr. Davis was treated unequally based on a perception that he had a disability. It is said that the Toronto Fire Department (the “City”) withdrew a conditional offer of employment to Mr. Davis when it learned of a prior knee injury. The Commission and the complainant take the position that this prior injury resulted in no functional limitations in Mr. Davis’ ability to perform the job of a firefighter.
2In response the City takes the position that Mr. Davis knowingly failed to disclose the true state of his medical condition in his application, resulting in a breach of trust that warranted the withdrawal of the conditional offer of employment. Further, the City states that the complainant’s medical condition raised a significant safety concern, which it was entitled to take into account in its decision not to hire him.
3The events at the heart of the complaint occurred in 1999. In January of 2004, the Commission referred the complaint to the Tribunal for a hearing. Efforts at mediation were unsuccessful and a hearing was convened before former Vice-Chair Mary Ross Hendriks. After a decision on a preliminary motion concerning production of documents, Vice-Chair Hendriks heard evidence from the complainant and three other witnesses in support of the Commission’s case over the course of nine days in October and November of 2006.
4The hearing was adjourned on November 17, 2006 during the evidence of the Commission’s final witness. Following the adjournment, Vice-Chair Hendriks issued an interim order prescribing terms for the completion of the evidence of this witness. The parties anticipated the completion of the Commission’s case on resumption of the hearing, and the start of the Respondent’s evidence.
5On May 25, 2007, the parties were advised that Vice-Chair Hendriks had been appointed as a Justice of the Peace and could not continue hearing the complaint. The Commission made a request to the Regional Senior Justice of the Toronto Region to permit Justice of the Peace Hendriks to complete the hearing of this matter despite her new employment, without success.
6In sum, the parties to this complaint find themselves in the unfortunate position where partway through a lengthy hearing, the adjudicator is no longer available to complete the hearing and issue a decision. I have therefore been assigned to hear this case in her place.
THE MOTIONS
7In light of these circumstances, the Commission brings a motion (the “first motion”) in which it seeks to have the handwritten notes of former Vice-Chair Hendriks treated as a record of the evidence to date, and to have the hearing continue from the point at which it was adjourned on November 17, 2006.
8The Commission and the City filed written arguments on the motion, which were supplemented by oral argument before me. As well, the Commission called Mr. Davis to give evidence at the hearing of the motion as to the impact of these circumstances on him. Mr. Davis supports the Commission’s motion.
9Mr. Davis expressed frustration about the process of having his complaint dealt with, describing his experience as an “emotional roller coaster”. He stated that the process has led to much stress on him as well as on his family. Mr. Davis spoke about the difficulties of accommodating his family and work schedule in order to attend the Tribunal’s hearings, as well as the strains of giving evidence over some five and half days. Rhetorically, Mr. Davis asked how many times he should have to tell his story, emphasizing that it would be unfair and an ordeal to require him to repeat his evidence from the very beginning.
10Mr. Davis asked the Tribunal to remind itself of the impact of this process on him, and to not forget that the thousands of cases that come before it have individuals with their own unique realities at their centre. He also expressed confidence in the rightness of his cause, and determination to see the case through to the end regardless of its length.
11Following the hearing of the motion, the Commission filed a further motion (the “second motion”) in which it seeks, in the alternative and without prejudice to its first motion, an order that the notes taken by Commission counsel and staff be accepted by the Tribunal as a substitute record of the evidence to date. I have written submissions from the Commission, the City and the complainant on this further motion.
SUBMISSIONS OF THE PARTIES ON THE FIRST MOTION
12The Commission submits that there is no reason the Tribunal cannot or should not grant its request to treat the notes of former Vice-Chair Hendriks as the record of proceedings in this complaint. No statutory provisions, either in the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 (the “SPPA”) or the Code, prevent the Tribunal from doing so. Further, neither the Tribunal’s Rules of Practice nor any judicial review or appeal decision preclude the Tribunal from making its notes part of the record, if that is what the Tribunal decides to do.
13The Commission asserts that although the SPPA states what must be included in a tribunal’s record, the list of items is open-ended and does not prevent the Tribunal from treating former Vice-Chair Hendrik’s notes as a record of the evidence to date.
14The Commission submits that this Tribunal has indicated it is committed to a fair, accessible and efficient hearing process. It would be unfair to Mr. Davis to require him to testify once more and there is no unfairness to the City in the order requested. The efficiency of the Commission’s request, it is submitted, is self-evident. In deciding on the request, the Tribunal should take account of the potential loss of nine days of each parties’ time, and of the fact that (apart from the complainant), these are all public institutions.
15In its Notice of Motion in this matter, the Commission requested that the Tribunal member hearing the motion review the notes made by the former Vice-Chair prior to the motion. By letter, the City objected to this request. I indicated to the parties during the hearing of the motion that I have not reviewed the notes. The Commission reiterated its request that I review the notes in order to decide the motion, stating that I ought to make my own assessment as to their reliability and thoroughness. The Commission expressed confidence in the extensiveness of the former Vice-Chair’s notes and submitted that, after a review of the notes, the Tribunal can answer the question of whether it can proceed with a fair hearing before a new adjudicator, using the notes as a record of the evidence to date.
16The City submits that adopting the Commission’s proposal would result in unduly favouring considerations of expediency and cost over fairness. Fairness requires that the Vice-Chair responsible for making a decision on the complaint hear the oral evidence directly, and not rely on written notes. In this case, credibility of the complainant is one of the issues the Vice-Chair will have to assess. Relying on a decision of the Ontario Labour Relations Board, Embee Properties Ltd. [2002] O.L.R.D. No. 4088, the City submits that it is particularly undesirable where credibility is an issue, for a trier of fact to base a decision on findings and observations made by someone else.
17The City states that notes of a tribunal member have no official status or role, and do not constitute a transcript or record of the proceedings. They are merely personal memory aids to assist members in their deliberations. There is no legislative authority for including such notes in the official record of a tribunal’s proceedings.
18The notes of a tribunal member are not a verbatim record, and are not produced with the intent of being a verbatim record of what witnesses said during a hearing. These notes may be influenced by the member’s perception of what is relevant to the determination of the issues. This is in contrast to the role of a court reporter who produces a transcript of evidence, and whose function is a mechanical one not involving the application of any discretion.
19Further, it is submitted, it is a fundamental principle that judges and members of administrative tribunals should be left to compile personal notes of proceedings over which they preside without any concern that their notes will be produced to others. Such production would be a breach of deliberative privilege.
20On the question of my review of the notes, the City submits that it is neither appropriate nor necessary for me to do so in order to decide the motion. The concerns about deliberative privilege apply to such a review. As well, a review of the notes would not allow me to come to any conclusion about their accuracy. Since I was not at the hearing, and have no insight into what occurred there, I cannot assess whether the notes are accurate.
21Finally, the City submits that although the hearing will have to begin again before a new Vice-Chair, it remains open to the parties to agree to evidence to put before the Vice-Chair. A new hearing does not necessarily require the re-litigation of everything that has already been put into evidence. Regardless of my decision on this motion, the parties can explore how to most efficiently conduct the hearing. Although the outcome cannot be guaranteed, both the City and the Commission accept that the Tribunal can direct them to work together to produce an agreed statement of facts.
SUBMISSIONS OF THE PARTIES ON THE SECOND MOTION
22In support of its second motion, the Commission states that its own counsel and staff took copious and detailed verbatim or near-verbatim typewritten notes throughout the hearing of the evidence, and that it is therefore unnecessary for the Tribunal to have the evidence to date adduced again. The Commission filed two affidavits with its written motion, attached to which are copies of typewritten notes produced by Commission counsel or staff at the hearings before the former Vice-Chair.
23The Commission submits that neither the Tribunal’s Rules nor the SPPA prevent the Tribunal from using Commission counsels’ notes as a record of the evidence to date. Further, the Commission submits that appeals from decisions made by this Tribunal to the Divisional Court have relied on affidavits of the evidence before the Tribunal, and refers to the decision in Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (ON SCDC), [2005] O.J. No. 377. If the courts are prepared to accept affidavit evidence, which provides notes containing a recital of the evidence before a tribunal, surely this Tribunal can accept such evidence.
24The Commission also submits that if the City claims that the Tribunal’s reliance on the Commission’s notes as a substitute record is prejudicial, it must demonstrate why this is so and may not simply assert such a prejudice. If the City objects to specific contents contained in the Commission’s affidavits, it is open to the City to file its own affidavit attaching its own notes in response, to “complete” the record before the Tribunal.
25In general, the Commission submits that accepting the Commission’s affidavits represents the most just, expeditious and cost-effective means of dealing with this issue, and is consistent with the Tribunal’s commitment to an efficient hearing process.
26In response, the City submits that the Commission’s notes are neither verbatim nor near verbatim and contain a large number of entries that are vague and open to interpretation. It provides a number of examples taken from the Commission’s notes to demonstrate this point. The City canvasses the case law provided by the Commission in support of its request, submitting that it is not helpful in that it consists entirely of decisions relating to the manner in which a court should review proceedings before a tribunal where no record exists.
27The City relies on the principle of procedural fairness known as “audi alteram partem”. This principle requires that parties have an opportunity to participate in proceedings that affect their rights. The City submits that it is also a breach of the principle for persons who have not heard the evidence upon which a decision is to be made to participate in the decision based on such evidence. The City refers to a number of court rulings, including Re Rosenfield and College of Physicians and Surgeons, 1969 CanLII 246 (ON HCJ), [1970] 2 O.R. 438 (H.C.J.); Parlee v. College of Psychologists of New Brunswick, [2004] N.B.J. 191 (C.A.); Re Beauregard, [1987] A.Q. 1602); Mehr v. Law Society of Upper Canada, 1955 CanLII 7 (SCC), [1955] S.C.R. 344; Re Manhas, 1976 CanLII 2338 (FC), [1977] 2 F.C. 120 (T.D.); and Piller v. Association of Ontario Land Surveyors, 2002 CanLII 44996 (ON CA), [2002] O.J. 2343 (C.A.), in which courts have applied this principle.
28The City states that although the SPPA and the Code permit the Tribunal to replace a panel assigned to a case where the original panel is unable to continue, the reassignment must comply with the above principle of procedural fairness. In a case such as the one before me, it requires that I proceed by way of a fresh hearing.
29The City relies on the following passage from Administrative Law in Canada (4th ed.), by Sara Blake:
Where a quorum is prescribed by statute or regulation, a hearing by fewer than that number is invalid and a decision is void. If one member is lost, leaving no quorum, the remaining members may not continue the hearing. They cannot continue even if the absent member is replaced, because the replacement has not heard the evidence presented before joining the panel. A new panel must commence the hearing anew. Similarly, if the tribunal is constitute by a single person who is unable to complete the proceeding, the replacement must start the proceeding anew. Lack of a prescribed quorum cannot be waived by parties because the purpose of the quorum is to serve the public interest through the collective wisdom of a minimum number of members. [at ¶ 44, footnotes omitted, emphasis added]
30In response to the audi alteram partem, argument the Commission disagrees with the City’s interpretation of subsection 35(8) of the Code. Indeed, the Commission suggests that subsection provides the authority for a Tribunal member to step into the shoes of the former Vice-Chair and continue with the hearing from the point at which it was adjourned.
31The Commission also refers to section 4.4 of the SPPA, and the decisions in Le Conseil Des Écoles Françaises de la Communauté Urbaine de Toronto v. Ontario (Human Rights Commission); Moffat v. Kinark Child & Family Services [1996] O.J. No. 1301; and Canadian Radio-Television and Telecommunications Commission v. CTV Television Network Ltd., (1982), 1982 CanLII 175 (SCC), 65 C.P.R. (2d) 19 (S.C.C.), as support for its position.
32The complainant supports the position taken by the Commission.
DECISION
33I have decided not to grant the Commission’s motions. I arrive at this conclusion having considered two key issues: 1) the principle that the adjudicator that hears the evidence should be the individual who decides the case and 2) the appropriateness of adopting the notes of either the former Vice-Chair or the Commission as the transcript of the oral evidence to date.
Audi Alteram Partem
34On the first issue, I agree with the City that, in deciding these motions, I must have regard to the well-settled principle of procedural fairness that “she or he who hears must decide”. Developed and applied in numerous court decisions, the principle requires that the individual (or panel) who hears the evidence must be the individual to decide on the outcome.
35Although the principle is fundamental, it is not inflexible. In application, the principle has been adapted to accommodate the variety of forms of decision-making across different administrative tribunals and agencies (see David J. Mullan, Administrative Law (Toronto, Irwin Law, 2001), pages 295-6). Whether a departure from the principle in a given case meets with the requirements of procedural fairness depends on the overall context for, as pointed out in Ontario (Attorney General) v. Grady (1988), 34 C.R.R. 289 (H.C.J.): “The content of the duty to be fair varies with the context in which the duty arises.” Factors to be considered are the statutory framework, the type of issues involved (regulatory or individual rights based), any requirement for oral hearings, and whether credibility issues are engaged (Mullan, supra, pages 292-297).
36On my review, many of the cases relied on by the City involve oral hearings by a tribunal on matters having serious consequences for an individual’s rights (such as professional discipline, employment or deportation). It is no surprise that in those contexts, the courts have paid close attention to issues of procedural fairness. As Mullan notes:
Under the paradigm situation of an oral hearing having serious consequences for individual rights or interests in which issues of credibility are raised, this means that the member or members of the tribunal should not only sit at the hearing but also be present and attentive throughout and thereafter reach their own independent decision on the basis of the evidence adduced and arguments presented by the parties. (page 293)
37In some of the cases provided to me (see Rosenfield, Parlee and Beauregard, supra, for example), the courts overturned decisions of tribunals at least partly on the basis that the composition of the tribunals was altered partway through a hearing. In others, even where the issue was not determinative of the outcome, the courts explicitly recognized the importance of ensuring that the individual or panel determining the final outcome of a case be present at the hearing of the evidence (see Mehr, Manhas and Piller, supra).
38Although none of those decisions are identical, they are analogous enough to the matter before me to provide guidance. This case will decide serious issues concerning the complainant’s right to be hired as a firefighter by the City. It involves the application of human rights legislation, which has been recognized as quasi-constitutional in nature. Facts in relation to the hiring process as well as the complainant’s medical condition are disputed, and the credibility of the complainant will be an issue. This is the type of case that is consistently dealt with by the Tribunal through an oral hearing, presided over from beginning to end by the same panel. In these circumstances, I am not convinced my resumption of the hearing partway through the evidence would be consistent with the principles of procedural fairness.
Effect of s. 35(8) of the Code and s. 4.4 of the SPPA
39The Commission submits that subsection 35(8) of the Code and section 4.4 of the SPPA provide the Tribunal with the statutory authority to do exactly as it requests in this case, that is, permit a Vice-Chair to continue with the hearing from the point at which it was interrupted, and therefore the principle of audi alteram partem does not apply. Indeed, it suggests subsection 35(8) requires me to do so.
40Subsection 35(8) of the Code states:
Where a panel of the Tribunal is unable for any reason to exercise the powers under section 39 or 41, the chair of the Tribunal may assign another panel in its place.
Section 4.4 of the SPPA provides:
If a member of a tribunal who has participated in a hearing becomes unable, for any reason, to complete the hearing or to participate in the decision, the remaining member or members may complete the hearing and give a decision.
41I do not read these provisions as leading to the result urged by the Commission. Specifically, they do not render inapplicable the principles of procedural fairness discussed above. The intent of section 4.4 appears to be simply to allow the remaining members of a panel to complete a hearing in the absence of a member who is unable to continue. This section of the SPPA is a complement to section 4.3, which permits a member of a tribunal to continue with a matter to a final decision notwithstanding the expiry of an appointment: see Piller, supra). Nothing in those provisions suggests that they are intended to displace the ordinary principles of procedural fairness, and there is no apparent reason why they cannot be applied in a manner consistent with those principles.
42Likewise, I do not find subsection 35(8) of the Code to authorize or require a departure from the principles of procedural fairness. There is no conflict between section 35(8) and those principles. This section permits the Chair of the Tribunal to assign another panel to take the place of one that is unable to exercise its powers. This is precisely what has occurred here, with my assignment to hear this case. Having been assigned, I must now decide on the appropriate manner of proceeding, with due regard to procedural fairness. As I have already indicated, the characteristics of this case lead me to the conclusion that a fresh hearing is required. I do not read subsection 35(8) as precluding me from proceeding in this manner.
43The Commission refers to the decision in C.R.T.C. v. CTV, supra, in support of its interpretation of the SPPA and Code. On my review of that decision, I am satisfied that neither the SPPA nor the Code provide the same kind of express statutory authority to derogate from natural justice requirements as in C.R.T.C. v. CTV.
44I also do not find the decision of the Divisional Court in Le Conseil Des Écoles Françaises de la Communauté Urbaine de Toronto, supra, to be on point. There, the issues related to, firstly, the power of the Chair of the Board of Inquiry to replace a panel appointed by the Minister and, secondly, to the meaning of the words “unable for any reason to exercise [its] powers” in subsection 35(8).
45In arriving at my determinations, I have considered whether the complainant’s support of these motions should affect the application of the principles discussed above to this case. The Commission has argued that no party would be prejudiced by its proposed manner of proceeding and, if there were any prejudice, it would only be to the Commission and to Mr. Davis. Implicitly, it suggests that Mr. Davis can waive the possibility of prejudice to him in having factual determinations and credibility findings made on the basis of the notes.
46Although it is true that the heart of this case is about whether Mr. Davis’ rights under the Code have been violated, I am not convinced that his agreement to the Commission’s request is determinative. Findings of fact and credibility will have a significant effect on the respondent’s rights, and it cannot be said that there is no prejudice to the City in proceeding as the Commission requests. My conclusion might be different if, for instance, all parties agreed to adopt the Commission’s hearing notes as the transcript of the evidence, but this is not the situation before me and I venture no opinions on the outcome if it were.
Notes are not a transcript
47I now turn to the second key element of my findings, that neither the former Vice-Chair’s hearing notes nor the notes of Commission counsel can be deemed to be a transcript. The Commission has submitted that there is no concern about fairness if the Tribunal has a transcript of the evidence available. Although my comments above and some of the court decisions suggest that the substitution of a Vice-Chair partway through the hearing of evidence (and in the absence of agreement) in this kind of case would be troubling even where a transcript of evidence exists, I find that there is no valid transcript before me.
48With respect to the former Vice-Chair’s notes, the primary reason for my decision not to give those notes the status of an official transcript is that such a use would be an incursion into deliberative privilege. Deliberative privilege is based on the principle that a decision of a court or tribunal speaks for itself, and that courts and tribunals must be free to make their decisions without the prospect of an inquiry into how a particular decision was reached. As discussed in Plennevaux v. Labourers International Union of North America, Local 1036, [1994] O.L.R.B. Rep. May 593 notes taken by tribunal members are inextricably linked to a tribunal’s thought processes and mental deliberations. They are made to assist the members in their deliberations.
49It is for this reason that a number of court and tribunal decisions have recognized the place of a decision-maker’s notes in the decision-making process. I need not refer to all the decisions cited to me. In Luong v. Toronto (Metropolitan) Administrator of Department of Social Services [1997] O.J. 5494, for instance, the Divisional Court found that, absent clear statutory direction, the production and use of such notes would breach the fundamental principle that judges and members of administrative tribunals should be able to compile personal notes of proceedings over which they preside without any concern that their notes will, one day, be viewed by others.
50There is another dimension to this issue. As the purpose for which an adjudicator takes notes of evidence is to assist in his or her deliberations, it is entirely within the discretion of the adjudicator to decide what to put in them. There is no reason to assume that an adjudicator intended to capture all of the evidence; the selection of what to record may depend on the adjudicator’s sense of its relative importance to his or her decision. The manner in which the evidence is recorded may be also be influenced by the adjudicator’s impressions and may not be verbatim at all.
51This type of informal note-taking is in contrast to transcripts of evidence produced by a professional reporter, which was described by a board of arbitration in Re Heritage Nursing Home Ltd. v. Service Employees International Union, Local 204 (1978), 1978 CanLII 3452 (ON LA), 18 L.A.C. (2d) 243 as:
a verbatim, word for word, record of exactly what was said by each witness, to the best of the ability of the Reporter whose duty it was to record what was said. The Reporter’s function is a mechanical one, not involving the application of any standards or discretion whatever.
52Given this, the hazards of treating the notes of an adjudicator as a record of evidence are obvious. These concerns apply with at least as much force to notes taken by counsel to the Commission, as one of the parties to the hearing. I need hardly highlight the perception of unfairness that would be created if the notes of one party to a hearing were adopted, without consent, as the official transcript.
53The Commission argues that nothing in the SPPA, the Code or the Tribunal’s rules precludes making the order it seeks. I agree there is no express exclusion. In addition to issues of deliberative secrecy and fairness, in my view, the unofficial notes of an adjudicator or a party are more akin to documents such as draft decisions, working notes, and notes of internal discussions, which are commonly accepted as not forming part of the adjudicative record, than to the types of documents listed in the SPPA.
54I have considered the cases submitted by the Commission on the issue of the use of its hearing notes and I am satisfied that they do not support the request made here. In one, a reviewing court substituted its opinion based on undisputed facts as set out in the Tribunal’s decision (Smith, supra). In another, the parties agreed to the submission of an affidavit to a reviewing court to fill in gaps in the recorded evidence of the affiant (McKinnon, supra). In some of the others (Brookfield; Denby, supra), parties were permitted to file affidavit evidence to a reviewing court where there were effectively no other means available to advance their positions.
55There is an important distinction between a tribunal of first instance and a reviewing court. It follows therefore that there is an important distinction between the type of evidence submitted to the Tribunal, and the type of material forming part of a record in front of a court reviewing a tribunal’s decision. That distinction reflects, of course, the differing purposes for which a tribunal and a reviewing court receive evidence, based on the fundamental differences between the roles of these adjudicative bodies. On that basis alone, the decisions offered by the Commission are of limited assistance.
CONCLUSION
56In deciding these motions against the Commission, I do not suggest that oral evidence on every aspect of a case is required in every case before the Tribunal. Among other things, it is available to the parties to agree on relevant facts or evidence, and to this extent, limit the amount of oral evidence required at a hearing. Although a tribunal has the discretion to reject or accept such agreements, it is commonplace for parties to a legal proceeding to at least attempt agreement on uncontentious aspects of the facts. The motions have been argued and decided on an “all or nothing” basis: the Commission wished to impose the use of the notes on the City and the City opposed this request. However, during the course of the hearing on the first motion, the City clarified its position that although the hearing must begin again, it remains open to the parties to agree to the evidence to put before the Tribunal, and expressed a willingness to work on such an agreement.
57Although the parties have had some discussions on resolving these issues, I am not convinced that they have exhausted those discussions. Among other things, it is not clear that they have explored whether the notes of Commission counsel and staff, now produced, can form the basis of at least a partial agreement on the facts or evidence. Although I have concluded that, in the circumstances before me, I should not deem these notes to be the official transcript of the proceedings, there is nothing preventing the parties from using the notes in some agreed fashion to streamline the hearing (subject to my acceptance). Among the options the parties could explore are the use of the notes as the basis of a jointly produced statement of facts or evidence, or as the basis of affidavits of evidence in chief, in either case subject to the leading of evidence and cross examination on areas not agreed to.
58A Pre-Hearing Conference Call has been scheduled for Friday, February 29, 2008 in this case. During that call, the Tribunal will explore outstanding preliminary and procedural issues relating to the conduct of the hearing with the parties, including discussing the options above as well as other options, and may make directions in connection with those issues. The Tribunal will also set hearing dates in this matter.
59I recognize that the results of these motions will not be satisfactory to the complainant, and it is not without sympathy for his position that I have arrived at this decision. It is through no action of his that the hearing into this complaint, for which he has been waiting a very long time, has been further delayed. It may appear that the legal principles I have discussed above have little bearing on his right to a hearing of his complaint. As much the Tribunal and the parties have an interest in finding an efficient
way to complete this hearing, however, those principles cannot be ignored. If the Tribunal were to proceed in a manner that is not keeping with those principles, it is likely that the resolution of this complaint would be prolonged, rather than hastened.
Dated at Toronto, this 27th day of February, 2008.
“Signed by”
Sherry Liang
Vice-Chair