MacPherson v. William Lyon Mackenzie Housing Co-Operative, 2008 HRTO 247

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Isabel MacPherson Complainant

-and-

Ontario Human Rights Commission Commission

-and-

William Lyon MacKenzie Housing Co-Operative Inc. and Gerald Lipperman Respondents

Interim DECISION

Adjudicator: Kathleen Martin Date: November 10, 2008 Citation: 2008 HRTO 247 Indexed as: MacPherson v. William Lyon Mackenzie Housing Co-Operative

Human Rights Tribunal of Ontario 655 Bay Street, 14^th Floor Toronto, ON M7A 2A3 Phone 416-314-8419 Fax 416- 314-8743 Toll Free 1-866-598-0322 TTY 416-314-2379 Toll Free1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

ORAL SUBMISSIONS BY:

Isabel MacPherson, Complainant ) Catherine Milne, Counsel William Lyon Mackenzie Housing Co-Operative Inc., ) Lawrence Ben-Eliezer, and Mr. Gerald Lipperman, Respondents ) Counsel Ontario Human Rights Commission ) Bay Ryley, Counsel

1This Interim Decision confirms certain orders and directions given during a conference call with the parties on November 6, 2008.

2On October 28, 2008, the Tribunal sent a Notice of Case Management Conference Call to the parties scheduling a case management meeting on November 6, 2008, a date previously agreed to by the parties. The Notice stated that the parties should be prepared to address the following issues:

• Whether the issues in dispute can be narrowed or simplified;
• Whether any facts or evidence can be agreed to;
• What witnesses they wish to call and the relevance of their testimony to the issues in the case; and
• Their position on the order of proceeding including whether bifurcation of liability from remedy issues would be appropriate.

3In addition, the Notice provided that the parties should ensure that their hearing briefs complied with the Tribunal’s Rules and that will say statements were filed with the Tribunal in advance of the scheduled conference call. In particular, the Notice stated:

2. Hearing Briefs to Comply with Tribunal Rules

The parties are directed to ensure that their hearing briefs meet the requirements set out in the Tribunal’s Rules:

• Commission: Rules 57-59;
• Complainant: Rules 60-62; and
• Respondents: Rules 63-65.

3. Will Says To be Provided

The parties are directed to the Tribunal’s correspondence of June 9, 2008 which provided that will says of witnesses including any expert witnesses be filed with the Tribunal by the deadlines set out therein.

The Tribunal confirms that it has not received will say statements for the following witnesses on the Commission’s list of intended witnesses:

• Isabel MacPherson; and
• Treating Psychiatrist.

Further, the Tribunal has not received will say statements for the following witnesses on the Respondents’ list of intended witnesses:

• Gerald Lipperman;
• Pat Tennant;
• Honey Jaeger;
• Vickey Walls;
• Steve Komlos; and
• Rosa Zaikan.

By November 4, 2008, the aforementioned will say statements shall be filed with the Tribunal, with a copy provided to the other parties.

4On November 5, 2008, the Commission filed will say statements for Isabel MacPherson and Dr. C. Krishnalingam, the complainant’s treating psychiatrist.

5The respondents did not file any additional material including any of the will say statements identified in the Tribunal’s Notice.

6During the conference call on November 6, 2008, I indicated that I did not find that the respondents’ hearing brief complied with the Tribunal’s Rules. In particular, it did not include a statement of agreement or disagreement with each fact or allegation in the hearing briefs of the Commission and the complainant and it does not appear to include a statement setting out all additional facts that the respondents will rely upon, including what happened, when and where it happened, and who was involved as required by Rule 63(a). Further, the respondents did not include a statement of the respondents’ position with respect to each of the orders or remedies requested by the other parties as required by Rule 63(d).

7I sought an explanation from counsel for the respondents as to the deficiencies in the respondents’ hearing brief and the failure to file will say statements. Counsel did not provide a reasonable explanation for the failure to comply with the Rules and the Tribunal’s earlier directions.

8Counsel for the respondents confirmed that the respondents now intended to call only four witnesses: Gerald Lipperman; Pat Tennant; Victoria Wells and Trevor Studden. In addition, counsel confirmed that the Commission and complainant’s document brief included all the documents that the respondents intended to rely on.

9After hearing submissions from the parties, I indicated that I was prepared to allow the respondents a further opportunity to file a hearing brief and will say statements that complied with the Tribunal’s Rules and its previous directions. I issued the following directions regarding the re-scheduling of conference call and the filing of additional material in advance of that call.

ORDERS AND DIRECTIONS

10The Tribunal makes the following orders:

1. The Registrar-Transition is directed to schedule a case management conference call for November 19, 2008 at 4:30 p.m. to address the issues as set out in paragraph [2] above.

2. By November 10, 2008, the respondents shall file their will say statements for Victoria Wells, Pat Tennant, Gerald Lipperman and Trevor Studden.

3. By November 12, 2008, the respondents shall file an amended hearing brief that complies with the requirements set out in the Rules, including Rules 63 and 65. In particular, the respondents must ensure that their brief responds in detail to each fact or allegation in the hearing briefs of the Commission and the complainant. Further, where the respondents intend to rely on a different version of the facts, the respondents must ensure that they set out in their hearing brief, all additional facts that they are relying on including what happened, when and where it happened, and who was involved.

11On consent of the parties, by November 17, 2008, the Commission is directed to file an affidavit setting out the evidence in chief of Dr. Krishnalingam.

12On consent of the parties, by November 17, 2008, the complainant is directed to file a complete report setting out the evidence in chief of Dr. Aubie Diamond.

13Rule 108 provides as follows:

108. No party will be entitled to rely on facts or introduce evidence or documents that were not provided, disclosed or produced in accordance with these Rules except with leave of the Tribunal.

14The Tribunal reiterates that should the respondents fail to file their Hearing Brief and will say statements as provided by the Rules and as ordered above, the Tribunal may refuse to accept any evidence that the respondents seek to enter through witnesses or otherwise that was not provided or disclosed in accordance with the Rules.