Abdullah Yousufi

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board, Keith Bradshaw, Ed Stewart and Brian Ward

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: September 30, 2009 Citation: 2009 HRTO 1587 Indexed as: Yousufi v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Toronto Police Services Board, ) Sharmila M. Clark, Ed Stewart and Brian Ward, Respondents ) Counsel )

Ontario Human Rights Commission ) Sharon Abrahams, ) Counsel

BACKGROUND

[2] There are two complaints before me. In the first complaint, the complainant alleged that he experienced harassment and was subjected to a poisoned work environment because of his ethnic origin and creed, contrary to section 5(1) and 5(2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). I issued an Interim Decision on these allegations in [2009 HRTO 351](https://www.minicounsel.ca/hrto/2009/351). In the second complaint, the complainant alleged that he experienced negative workplace consequences as a result of filing the first complaint, such as the denial of training and the elimination of his position, contrary to section 8 of the Code. Specifically, the complainant alleges that the respondents used the Civilian Review process to mask their attempt to downsize or eliminate his position.

Proposed Expert Witness

[3] The Commission proposed Mr. Charles Smith as an expert witness in the field of racism. A will say statement was provided setting out his proposed testimony. The respondents challenged the proposed witness’s expertise, the relevance, necessity and helpfulness of the proposed evidence.

[4] Expert evidence is a type of opinion evidence which is generally inadmissible unless it meets certain criteria as set out R. v. Mohan [1994 CanLII 80 (SCC)](https://www.minicounsel.ca/scc/1994/80), [1994] 2 S.C.R. 9:

the evidence must be relevant;
the evidence must be necessary to assist the trier of fact;
there must be no exclusionary rule otherwise prohibiting the receipt of the evidence; and
the evidence is given by a properly qualified expert.

[5] It is unnecessary to address Mr. Smith’s expertise, in light of my finding that his opinion evidence will not be admitted.

[6] In Persaud v. Toronto District School Board, [2008 HRTO 92](https://www.minicounsel.ca/hrto/2008/92), at paragraph [14](https://www.minicounsel.ca/hrto/2008/92), the Tribunal explained the application of some of these principles in the context of human rights applications:

As stated above, expert evidence must also be “necessary” to assist the trier of fact. I accept and endorse the comments in the case law that necessity should not be judged by too strict a standard, and that this standard is somewhat lower in a human rights proceedings: see Johnson v. Halifax (Regional Municipality) Police Service [2003] N.S.H.R.B.I.D. No. 2 at paras 92 and 93; Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at para. 36. I also accept and endorse the comments from the Johnson decision that expertise in racism and expertise in discrimination are two different things, and that human rights adjudicators do not necessarily possess expertise in racism, which is a social phenomenon that takes many guises and is studied in many different environments and contexts. At the same time, I need to determine whether the proposed expert evidence is necessary to assist me as the trier of fact, in the sense that it is outside my experience and knowledge.

[7] Mr. Smith proposes to testify with respect to the reluctance of Racialized persons to file complaints against their colleagues within institutions dominated by White men, particularly paramilitary and police services, because of the fear of consequences. This evidence is not relevant to the second complaint. I already heard and addressed the delay in the complainant’s outdated allegations of discrimination. There is no aspect of delay to the complainant’s complaint of reprisal. This aspect of the proposed evidence is therefore irrelevant.

[9] Mr. Smith also proposes to testify about police culture, how complaints of discrimination are viewed within policing services, how complainants may be treated as a result of filing complaints, how one of the consequences for Racialized persons who complain within policing organizations may be loss of employment opportunities and increasing isolation within the organization.

[10] In my view, these are matters that are within the expertise of the Tribunal and also relate to the ultimate issue in dispute. I do not find that the proposed evidence will be helpful or necessary.

[11] Finally, Mr. Smith proposes to testify about how the allegations of discrimination and reprisal may have had an impact on the complainant.

[12] The impact on the complainant will be addressed in the next stage of the hearing and is not relevant at this time.

[13] For the reasons set out above, I will not allow Mr. Smith to provide opinion evidence in this proceeding.

Abdullah Yousufi v. Toronto Police Services Board, 2009 HRTO 1587

Case Summary

BACKGROUND

Proposed Expert Witness

[3] The Commission proposed Mr. Charles Smith as an expert witness in the field of racism. A will say statement was provided setting out his proposed testimony. The respondents challenged the proposed witness’s expertise, the relevance, necessity and helpfulness of the proposed evidence.

[4] Expert evidence is a type of opinion evidence which is generally inadmissible unless it meets certain criteria as set out R. v. Mohan [1994 CanLII 80 (SCC)](https://www.minicounsel.ca/scc/1994/80), [1994] 2 S.C.R. 9:

[5] It is unnecessary to address Mr. Smith’s expertise, in light of my finding that his opinion evidence will not be admitted.

[6] In Persaud v. Toronto District School Board, [2008 HRTO 92](https://www.minicounsel.ca/hrto/2008/92), at paragraph [14](https://www.minicounsel.ca/hrto/2008/92), the Tribunal explained the application of some of these principles in the context of human rights applications:

[10] In my view, these are matters that are within the expertise of the Tribunal and also relate to the ultimate issue in dispute. I do not find that the proposed evidence will be helpful or necessary.

[11] Finally, Mr. Smith proposes to testify about how the allegations of discrimination and reprisal may have had an impact on the complainant.

[12] The impact on the complainant will be addressed in the next stage of the hearing and is not relevant at this time.

[13] For the reasons set out above, I will not allow Mr. Smith to provide opinion evidence in this proceeding.

Dated at Toronto, this 30th day of September, 2009.

“Signed by”

_________________________________________

Kaye Joachim

BACKGROUND

Proposed Expert Witness

[3] The Commission proposed Mr. Charles Smith as an expert witness in the field of racism. A will say statement was provided setting out his proposed testimony. The respondents challenged the proposed witness’s expertise, the relevance, necessity and helpfulness of the proposed evidence.

[4] Expert evidence is a type of opinion evidence which is generally inadmissible unless it meets certain criteria as set out *R. v. Mohan* [1994 CanLII 80 (SCC)](https://www.minicounsel.ca/scc/1994/80), [1994] 2 S.C.R. 9:

[5] It is unnecessary to address Mr. Smith’s expertise, in light of my finding that his opinion evidence will not be admitted.

[6] In *Persaud v. Toronto District School Board*, [2008 HRTO 92](https://www.minicounsel.ca/hrto/2008/92), at paragraph [14](https://www.minicounsel.ca/hrto/2008/92), the Tribunal explained the application of some of these principles in the context of human rights applications:

[10] In my view, these are matters that are within the expertise of the Tribunal and also relate to the ultimate issue in dispute. I do not find that the proposed evidence will be helpful or necessary.

[11] Finally, Mr. Smith proposes to testify about how the allegations of discrimination and reprisal may have had an impact on the complainant.

[12] The impact on the complainant will be addressed in the next stage of the hearing and is not relevant at this time.

[13] For the reasons set out above, I will not allow Mr. Smith to provide opinion evidence in this proceeding.

Dated at Toronto, this 30th day of September, 2009.

“Signed by”

_________________________________________

Kaye Joachim

[4] Expert evidence is a type of opinion evidence which is generally inadmissible unless it meets certain criteria as set out R. v. Mohan [1994 CanLII 80 (SCC)](https://www.minicounsel.ca/scc/1994/80), [1994] 2 S.C.R. 9:

[6] In Persaud v. Toronto District School Board, [2008 HRTO 92](https://www.minicounsel.ca/hrto/2008/92), at paragraph [14](https://www.minicounsel.ca/hrto/2008/92), the Tribunal explained the application of some of these principles in the context of human rights applications: