Ball v. Ontario (Community and Social Services), 2008 HRTO 207

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Ball and the Complainants Listed on

Schedule “A” and Schedule “B”

Complainants

-and-

Ontario Human Rights Commission

Commission

-and-

Her Majesty the Queen in Right of Ontario

as Represented by the Minister

of Community and Social Services

Respondent

INterim DECISION

Adjudicator: David A. Wright

Date: October 29, 2008

Citation: 2008 HRTO 207

Indexed as: Ball v. Ontario (Community and Social Services)

Human Rights Tribunal of Ontario

655 Bay Street, 14^th^ Floor

Toronto ON M7A 2C7

Phone (416) 314-8419 Fax (416) 314-8743 Toll free 1-866-598-0322

TTY (416) 314-2379 / 1-800-424-1168

E-mail hrto.registrar-transition@ontario.ca

Website www.hrto.ca

1This decision addresses issues of case management in the lead cases regarding the “special diet allowance”. The background to these complaints is set out in previous interim decisions: Ball v. Ontario (Community and Social Services), 2008 HRTO 24, 2008 HRTO 29, 2008 HRTO 72, and 2008 HRTO 88.

2The respondent submits that the evidence-in-chief of witnesses other than the complainants should be in the form of written affidavits and that cross-examination take place in the absence of the Tribunal before a court reporter. The respondent would pay for the reporter and transcripts. The complainants and Commission are opposed to this request. The Tribunal heard the parties’ submissions on this issue on two conference calls: one on October 20, 2008 and the other on October 27, 2008.

3Section 41 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) sets out principles that guide the Tribunal’s approach to procedure. This provision took effect on June 30, 2008, and applies to this case as a result of s. 55 of the Code. It provides:

This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.

These principles are reflected, among others in Rules 13-15 and 84 of the Rules of Practice that govern Commission-referred complaints. Under the new Code, the Tribunal’s procedure may be adapted to the specific facts and issues in particular cases, and the parties should always expect that the Tribunal may engage in case management and assessment of the most appropriate procedure to ensure a fair, just and expeditious resolution of the merits. The Tribunal may engage in case assessment and case management at various stages of the process. The parties will not necessarily be entitled to present oral evidence from each witness they wish to call and on every issue. They are entitled to an accessible, transparent process, and the opportunity to be heard through oral submissions.

4I have concluded that written reports by all the experts and cross-examination on those reports before a court reporter would be the most fair, just and expeditious manner for the expert and medical evidence in this case to be heard. The reports need not be in sworn affidavit form, and Tribunal will treat a report as the expert’s evidence-in-chief pursuant to Rule 84. The Tribunal will review the reports and transcripts of cross-examinations in detail prior to final argument.

5Various factors lead me to this conclusion. First, in my view it would be the best use of resources. It will greatly reduce the time spent in the hearing, the time for each cross-examination, and the amount of the experts’ time required. Second, many complainants have emphasized the fundamental nature of the issues in this case and their desire for the matter to be determined as soon as possible. In my view, this process will make it easier for the hearing to conclude and the decision to be issued more quickly. Third, it will assist in focusing the hearing and argument on the substance of the expert evidence and legal arguments of the parties which are at the heart of this case at an early stage. Fourth, I do not believe that the expert evidence will be more helpful to the Tribunal if it is heard orally rather than in writing. Expert evidence is generally convincing because of the strength of the arguments and sources, not the manner in which the expert gives evidence. Indeed, a transcript may well make it easier for me to understand and appreciate the evidence. Fifth, I do not believe that this process is any less accessible to any complainants since they can request access to the same documents that are before the Tribunal. Access to a transcript may make the process more accessible.

6The complainants and Commission suggest that it is important that the evidence be presented orally because the Tribunal may have questions for the experts. While I am doubtful that it would be necessary in this case, any questions that I wish to ask will be provided in writing or asked during a brief teleconference with the expert, with an opportunity for the parties to ask follow-up questions.

7Finally, the complainants expressed concern that they had expert reports prepared that did not contain every detail to which the experts intended to testify, and that reports of the nature required to constitute the experts’ evidence-in-chief would require more time beyond the current deadline of October 31, 2008. In my view, the best way to deal with the complainants’ concerns, and also ensure that the final report from their experts can take into account the reports of the respondents’ experts, is to permit them to prepare a final report following receipt of the respondents’ pleadings and expert reports. The reports to be provided by October 31, 2008, however, must have all essential details of the experts’ opinion, so that the respondents may prepare their pleadings and the respondent’s experts may consider them in preparing their opinions.

8I agree with the complainants that it is appropriate that the cross-examination of the respondent’s non-expert witness or witnesses take place before the Tribunal. I understand that this witness or these witnesses will testify in chief primarily to the chronology of events that led to the development of the provisions and identify various documents. The evidence-in-chief should be in the form of an affidavit.

9I am concerned about the fact that counsel for “E”, who sought to be added as a lead complainant late in the process, against the objections of the other lead complainants, has not participated in the case management teleconferences nor has the Tribunal received any correspondence from her. Ms. Shartal-Levinthal is directed to advise the Tribunal in writing by October 31, 2008 why she has not participated in the Tribunal’s process since the Initial Conference Call and whether her client wishes to remain a lead complainant. The Tribunal may give further directions on this issue after that time.

10After considering the parties’ submissions, it is in my view necessary to make a full order with regard to the organization of the hearing at this point in the process. It will ensure the clear definition of the matters at issue, move the parties toward being fully prepared for a hearing process that will conclude in June, and ensure an expeditious hearing focusing on the issues on which the Tribunal requires oral submissions. Of course, the Tribunal will consider reasonable requests for modifications of the order or dates within the above parameters.

11The Tribunal makes the following revised order:

1. By October 31, 2008, the Commission and lead case complainants shall serve and file their individual medical and expert evidence. They shall also serve and file pleading(s) containing an outline of the material facts upon which they rely, their position on the issues to be decided and their desired remedies;

2. By December 15, 2008, the Commission or complainants shall file any requests that any hearing dates take place outside Toronto, making reference to the Tribunal’s Practice Direction on Hearings in Regional Centres;

3. By December 15, 2008, the respondent shall advise the other parties and the Tribunal which witnesses it intends to cross-examine;

4. By January 16, 2009, the respondent shall serve and file complete reports of all expert witnesses, which shall constitute the evidence-in-chief of those witnesses, and an affidavit of its non-expert witness(es), which shall constitute the evidence-in-chief of that witness or those witnesses. It shall also serve and file a pleading outlining the material facts upon which it relies and its position on the issues to be decided;

5. By February 6, 2009, the Commission and lead case complainants shall serve and file final reports of all expert witnesses, which shall constitute the evidence-in-chief of those witnesses;

6. Cross-examination and re-examination of experts shall take place in February and March of 2009 before a court reporter. The parties shall agree on the dates by January 30, 2009. The parties shall advise the Tribunal of the dates of cross-examinations, and the Tribunal shall make efforts to be available to resolve any disputes regarding cross-examination by conference call;

7. The hearing shall take place on March 24, 25, 27, 31, April 1, 21, 22, and 24, and June 16, 17, 23 and 24, 2009. All other previously scheduled dates are cancelled;

8. The hearing shall commence on March 24, 2009 with opening statements. March 24, 25, 27, 31 and April 1 (or as many of these dates as are necessary) shall be devoted to the evidence of the five lead complainants;

9. April 21, 22, and 24, 2009 (or as many of these dates as are necessary) shall be devoted to cross-examination and re-examination of the government non-expert witness(es);

10. All transcripts shall be provided to the parties and filed with the Tribunal by April 24, 2009;

11. The complainants and Commission shall file an outline of written argument and book of authorities by May 15, 2009;

12. The respondents shall file an outline of written argument and book of authorities by May 29, 2009;

13. The complainants and Commission shall file any written reply argument and authorities by June 12, 2009;

14. Final argument shall take place on June 16, 17, 23 and 24, 2009.

15. The lead case complainants shall be identified only by letters of the alphabet in all public documents;

16. The Tribunal shall remain available to decide any disputes regarding the implementation of this timetable or make appropriate modifications in a summary manner;

17. The Commission shall continue as a party to all of these complaints throughout the proceedings;

18. Following the decision on the lead cases, the Tribunal shall schedule a case conference to determine a procedure to address the remaining cases;

19. This Order does not affect the right of the respondent to request a stay of proceedings as a result of litigation before the Social Benefits Tribunal.

Dated at Toronto, this 29^th^ day of October, 2008

David A. Wright

Vice-Chair

Schedule “A”: Complaints Referred January 29, 2008

COMPLAINANT REPRESENTATIVE

• Ball, Brian – 1443-07 Glenda Devlin
• Bayne, Sandra –1444-07 David Balderston
• Belcourt, Lisa – 1445-07 Nora Simpson
• Bell, Linda – 1446-07 Seana Moorhead
• Bradshaw-Clark, Judy – 1447-07 Nora Simpson
• Buklis, Arlene – 1448-07 Norma MacKenzie
• Buklis, John – 1449-07 Norma MacKenzie
• Butts, Ruth – 1450-07 Jessica S. Michael
• Caissie, Rita –1451-07 Nora Simpson
• Carriere, Debbie – 1452-07 Jessica S. Michael
• Caster, Diane – 1453-07 Anna Zachariah
• Connors, Devon by his litigation

guardian John Connors – 1454-07 Jessica S. Michael

• Connors, Drew by his litigation

guardian John Connors – 1455-07 Jessica S. Michael

• Connors, John – 1456-07 Jessica S. Michael
• Cook, Cassandra – 1457-07 Norma MacKenzie
• Costello, John H. – 1458-07 Vicki Doidge
• Courville, Diane – 1459-07 Stuart Bailey
• Cranstone, Steven by his litigation

guardian Irene Cranstone – 1460-07 Colleen Sym

• Crocker, Doral – 1461-07 Jessica S. Michael
• Dawe, Karen – 1462-07
• Donald, Linda C. – 1463-07
• Dupont, Gail – 1464-07
• Edison, Laura – 1465-07 Jessica S. Michael
• Edwards, Terry – 1466-07
• Fleming, Robert – 1467-07 Nora Simpson
• Frederick, Patricia Mary – 1468-07 Carl Symondson
• Glazewski, Dona – 1469-07 Nora Simpson
• Gray, Petrona – 1470-07 Nora Simpson
• Hampel, Anne – 1471-07 Norma MacKenzie
• Hanna, Judy – 1472-07
• Hartwick, Elsie – 1473-07 Jessica S. Michael
• Hedrich, Glenn V. – 1474-07
• Heyer, Kristi – 1475-07 Carl Symondson
• Hilborn, Gerald – 1476-07
• Hillier, Lanny - 1477-07 Carl Symondson
• Hird, Donna – 1478-07 Nora Simpson
• Hormuz, Sara – 1479-07
• Hunchuck, Suzanne – 1480-07
• Ibbotson, Brenda – 1481-07 Jessica S. Michael
• King, Randy – 1482-07
• LaFranchise, June – 1483-07
• Lawrence, Mary – 1484-07 Deborah Kehler
• LeFebvre, Diane – 1485-07 Georgina Watts
• Locke, Richard – 1486-07 Nora Simpson
• Lutynski, Judy – 1487-07 Jessica S. Michael
• MacDonald, Debbie – 1488-07
• MacDonald, John by his litigation

guardian Debbie MacDonald – 1489-07

• Mahaney, Margaret - 1490-07 Nora Simpson
• Manke, Carole – 1491-07
• Marin, Anne – 1492-07 Laura J. Hunter
• Martel, Robert – 1493-07 Stuart Bailey
• McNeil, Neil – 1494-07 Jessica S. Michael
• Molto, Vanessa – 1495-07 Nora Simpson
• Nelson, Andrea – 1496-07
• Ninni, Angela – 1497-07 Nora Simpson
• Pear, Rosalynn – 1498-07 Deborah Kehler
• Penner, Sandra – 1499-07 Stuart Bailey
• Petit, Jamie – 1500-07 Laura J. Hunter
• Pietrobon, Jessica by her litigation

guardian Rosemary Pietrobon – 1501-07 Vicki Doidge

• Ray, Patricia – 1502-07
• Remus, Colleen – 1503-07 Laura J. Hunter
• Ricker, Shawn – 1504-07 Seana Moorhead
• Romano, Clara – 1505-07 Seana Moorhead
• Sauve, Julie – 1506-07 Susan Campbell
• Scrutton, Amy – 1507-07 Jessica S. Michael
• Seguin, Raymond – 1508-07 Stuart Bailey
• Sizer, Doug – 1509-07 Jessica S. Michael
• Smith-Reeve, Wendy – 1510-07 Andrew C. Bolter
• Snow, Clarence – 1511-07 David Balderston
• Stapley, Francis – 1512-07 Jessica S. Michael
• Tessier, Victor – 1513-07 Stuart Bailey
• Tilling, Randy – 1514-07 Nora Simpson
• Tursa, Ella – 1515-07
• Vermeulen, Angela – 1516-07 Nora Simpson
• Wickham, Deborah – 1517-07
• Wray, Lorena – 1518-07 Jessica S. Michael
• Yurke, Gregory – 1519-07

Schedule “B”: Complaints Referred August 11, 2008

• Abbs, David –1656-08
• Addison, Sylvan – 1657-08
• Briggs, Bonitta – 1658-8-08
• Brown, Marie – 1659-08
• Burt, Pansy Yvonne – 1660-08
• Cason, Wesley – 1661-08
• Cotterell, Brian – 1662-08
• Essery, Kathy – 1663-08
• Faustina, Murray -- 1664-08
• Fenwick, Victoria –1665-08
• Francis, Michael – 1666-08
• Froude, Eric – 1667-08
• Fujs, David – 1668-08
• Graham, Michael – 1669-08
• Hoffman, Jennifer – 1670-08
• Hoffman, Samantha – 1671-08
• Hylton, Noel – 1672-08
• Jackson, John – 1673-08
• Kersteins, Katherine – 1674-08
• Klemm, Bonnie – 1675-08
• Landry, James – 1676-08
• Lesser, Laura – 1677-08
• Monteath, Stephen – 1678-08
• Nava, Emanuel – 1679-08
• Priolo, Carmin – 1680-08
• Rose, Eva – 1681-08
• Salm, Donna – 1682-08
• Santdonato, Filippo – 1683-08
• Small, Brenda – 1684-08
• Smart, Ann – 1685-08
• Stewart, Chuck – 1686-08
• Stewart, John – 1687-08
• Townsend, Peter – 1688-08
• Vanegas, Pedro – 1689-08
• Walker, Ed – 1690-08
• Wareham, Janice – 1691-08
• Williams, Terrance – 1692-08