HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Raffaele (Ralph) Capocci
Applicant
-and-
York Catholic District School Board and
York Catholic District School Board – Board of Trustees
Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Capocci v. York Catholic District School Board
appearances BY
Raffaele (Ralph) Capocci, Applicant ) Iain T. Donnell, Counsel
York Catholic District School Board and ) John-Paul Alexandrowicz and
York Catholic District School Board – ) Kathryn J. Bird, Counsel
Board of Trustees, Respondents )
INTRODUCTION
1The purpose of this Interim Decision is to provide written reasons for orders that I made with respect to a number of preliminary issues on the first day of the hearing.
BACKGROUND
2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 1, 2008, which alleges that the respondents discriminated against him with respect to services and facilities because of his family status and his association and dealings with persons identified by a prohibited ground of discrimination.
3The respondents filed a Response to the Application on November 25, 2008, which denies the allegations of discrimination. The respondents also filed a Request for an Order during Proceedings on the same day, which requested that the Tribunal dismiss the Application on a preliminary basis because (a) it is untimely, (b) it is outside the Tribunal’s jurisdiction, (c) it is an abuse of process, and (d) it fails to make out a prima facie case of discrimination.
4The Tribunal issued an Interim Decision, 2009 HRTO 107, on January 30, 2009, which denied the respondents’ request to dismiss the Application, but ordered that the ground of “family status” be struck from the Application.
5The Tribunal subsequently sent the parties a Confirmation of Hearing notice dated February 26, 2009, which informed them that the Tribunal had scheduled a hearing of the Application on June 25, 2009. The notice set out the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses.
6In April and May 2009, both parties filed Requests for an Order During Proceeding, which requested, among other things, the production of documents and things, and the removal of the individual respondents from the proceeding. On the first day of the hearing (June 25), both parties also raised a number of other preliminary issues. I made a number of oral rulings at the hearing with written reasons to follow. My written reasons are below.
7The Tribunal has scheduled further hearing dates for November 23 and December 4, 10 and 18, 2009.
EXCLUSION OF WITNESSES
8At the hearing, the respondents’ counsel requested that the Tribunal order that non-party witnesses be excluded from the hearing room until they have given their evidence. The applicant did not take a position with respect to the respondents’ request.
9The respondents’ request is granted. It is well-established that courts and tribunals have the discretionary power to exclude witnesses from the court or hearing room until such time as it is necessary for them to give their evidence, and, upon the request of a party, will normally grant such an order: The rationale for making such an exclusion order is as follows:
The purpose of excluding witnesses is to preserve a witness’ testimony in its original state. A witness listening to the evidence given by another may be influenced by the latter’s testimony, and accordingly change his evidence to conform with it. Also, by being present in the courtroom and listening to testimony prior to giving his evidence, he or she may be able to anticipate, and thereby reduce the effectiveness of, the cross-examination that will ultimately be faced. It may also facilitate collusion by allowing a witness to tailor the evidence to fit that of another. An order excluding witnesses seeks to eliminate this potential unfairness. Moreover, exclusion of witnesses may reveal earlier collusion. The similarity of language and phrases used may expose the fact that the witnesses had compared their version of events and memorized consistent stories: Asad v. Kinexus Bioinformatics, 2008 BCHRT 293 at paras. 753-754 and Sopinka, Lederman and Bryant: The Law of Evidence in Canada, 2nd ed. (Markham: Butterworths, 1999) at para. 16.14.
EXCLUSION OF CHILDREN
10At the hearing, the respondents’ counsel also requested that the Tribunal order that children who are pupils within the respondent school board be excluded from the hearing room. The respondents gave three reasons for making such a request. First, it is not appropriate for children to be present when parents, school officials, and school board officials are being examined and cross-examined. Second, the conduct of children during the hearing may become an issue. And third, the children of some of the witnesses may attend the hearing, not understand the Tribunal’s witness exclusion order, and inadvertently breach it.
11The applicant’s counsel opposed the Tribunal’s request for the following reasons. First, the cross-examination of witnesses will be done respectfully and the children who attend the hearing will learn about how Ontario’s justice system works. Second, there is no evidence that any children will be disruptive during the hearing. And third, the Tribunal’s witness exclusion order does not extend to the children of witnesses.
12The respondents’ request is denied. In my view, it relies upon dubious assumptions and stereotypes about the vulnerability and immaturity of children, who have no less right to attend a hearing at the Tribunal than adults. Furthermore, the reasons provided by the respondent to support their request do not justify restricting the openness of the hearing.
13Rule 3.10 of the Tribunal’s Rules of Procedures provides that the Tribunal’s hearings are open to the public, except when the Tribunal determines otherwise. Subsection 9(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”), also provides:
An oral hearing shall be open to the public except where the tribunal is of the opinion that,
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the tribunal may hold the hearing in the absence of the public.
14In my view, excluding children from the respondent school board, who are not parties or witnesses, from the hearing room would be an extraordinary step that would significantly restrict the openness and transparency of the proceeding. None of the reasons provided by the respondents fall within the parameters of subsection 9(1) of the SPPA and justify such an extraordinary step.
15I agree that a breach of the Tribunal’s witness exclusion order – whether intentional or inadvertent – is a serious matter, but I will deal with any such breaches if and when they arise. The parties should be aware that the Tribunal may give less or no weight to the testimony of a witness who has breached its order.
PUBLICATION BAN
16At the hearing, the respondents’ counsel requested that the Tribunal order a publication ban in order to protect the confidentiality of Minutes of Settlement that the parties will be referring to during the hearing. Specifically, the parties in this proceeding were involved in the mediation and settlement of six related complaints at the Ontario Human Rights Commission, and there is a confidentiality clause in the Minutes of Settlement that resolved those complaints.
17The applicant’s counsel stated that the applicant did not take a position with respect to the respondents’ request, but if he did take a stance, he would consent to a publication ban because the hearing will be dealing with documents related to him, which are of a personal and sensitive nature.
18The respondents’ request is denied. Rule 3.11 of the Tribunal’s Rules provide that the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so. On the other hand, considering the importance of the transparency of legal proceedings and the constitutional rights to freedom of expression and freedom of the press, a party seeking a publication ban bears the burden of proving that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure; that the proposed ban is as limited as possible; and that there is a proportionality between the salutary and deleterious effects of the ban: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, 1994 CanLII 39 (S.C.C.) at pp. 890-91.
19In my view, the respondents have not met this burden. They have not proven that protecting the confidentiality of the Minutes of Settlement cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited as possible, and that there is proportionality between the salutary and deleterious effects of the proposed ban.
20I have also noted that, notwithstanding the confidentiality clause and without seeking an order from the Tribunal, the respondents attached the Minutes of Settlement to their Response to the Application. The applicant did not object, and to date has not objected, to the disclosure of the Minutes.
21In all the circumstances, I do not believe that it is appropriate to order a publication ban in order to protect the confidentiality of Minutes of Settlement.
22Although I denied the request for a publication ban, I am willing to consider more narrow requests to protect the confidentiality of personal or sensitive information in the Minutes of Settlement. I will deal with any such requests if and when they arise at the hearing.
AMENDEMENT OF RESPONSE
23On February 5, 2009, the respondents sent the Tribunal a letter, which submitted an amendment to paragraph 50 of the Response, and identified an attached document as Tab 24 to the Response.
24Rule 1.7(c) of the Tribunal’s Rules provides that the Tribunal may allow any filing to be amended. Rule 19 further provides that a party may request that the Tribunal make an order at any time during a proceeding by oral submission in the course of the hearing or by written request, and where a request is made in writing, it must be made in a Request for Order During Proceedings (Form 10), and must be delivered to all parties and filed with the Tribunal.
25The respondents did not file a Form 10, but Rule 5.2 of the Tribunal’s Rules allows the Tribunal to waive the application of its Rules at any time on its own initiative as it considers appropriate. I also asked the applicant’s counsel during the first hearing day whether the applicant objected to amendment. He responded in the negative.
26I see no reason not to grant the respondent’s request. The request to amend the Response as per the February 5 letter is therefore granted.
REMOVAL OF INDIVIDUAL RESPONDENTS
27The applicant named three individual respondents in his Application: Dino Giuliani, a trustee at the respondent school board; Jo-Ann Dawson, the Principal of St. Stephen’s Catholic Elementary School, which is within the district of the respondent school board; and Susan LaRosa, the Director of Education at the respondent school board.
28The respondents filed a Request for an Order During Proceedings on May 15, 2009, which requested that the Tribunal order the removal of the individual respondents from the Application. The applicant filed a Response to the Request on May 29, which opposed the Request.
29Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
30The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
31In the case at hand, there is no question that the first three factors support the removal of Mr. Giuliani, Ms. Dawson and Ms. LaRosa as respondents from the Application. The parties’ submissions therefore focused on whether there is any compelling reason to continue the proceeding against them, and whether any prejudice would be caused to the applicant as a result of removing them.
32The respondents submitted that there is no compelling reason to continue the proceeding against them because the respondent school board will assume all liability that may arise as a result of the Tribunal’s Decision, and the only remedy that is requested of the individual respondents is that Mr. Giuliani and Ms. Dawson provide an apology. The respondents further submitted that no prejudice would be caused to the applicant as a result of removing the individual respondents because they will be appearing as witnesses.
33The applicant submitted that there is a compelling reason to continue the proceeding against them because their individual conduct is a central issue in this proceeding. Specifically, the applicant alleges that there was a conspiracy driven by Mr. Giuliani to discriminate against him, Ms. Dawson discriminated against him either on her own or on behalf of Mr. Giuliani, and Ms. LaRosa also took personal steps to discriminate against him. The applicant further submitted that he would be seriously prejudiced by the removal of the individual respondents, but did not explain in any detail the nature or extent of the prejudice that he would suffer.
34I agree with the applicant that the individual conduct of the individual respondents is a central issue in this proceeding. On the other hand, the applicant is not seeking a remedy solely against Ms. LaRosa, and the only remedy that he is seeking solely against Mr. Giuliani and Ms. Dawson is an apology. This Tribunal has generally declined to order parties to provide an apology on the basis that such orders are viewed as inappropriate or an ineffective remedy, and raise potential freedom of expression concerns: see, for example, Abdallah v. Thames Valley District School Board, 2008 HRTO 230 at para. 110. Furthermore, the applicant has not established that any prejudice will be caused to him as a result of removing the individual respondents from the Application.
35In my view, considering all the circumstances, it is not necessary to involve Mr. Giuliani, Ms. Dawson and Ms. LaRosa as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.
36The respondents’ request to remove the individual respondents from the Application is therefore granted. The style of cause shall be amended accordingly.
SUSAN LAROSA’S ATTENDANCE AT THE HEARING
37Following my order removing the individual respondents from the Application, the applicant’s counsel requested that I order that they all be excluded from the hearing room pursuant to my witness exclusion order.
38The respondents’ counsel agreed that Mr. Giuliani and Ms. Dawson should abide by the witness exclusion order, but objected to excluding Ms. LaRosa on the basis that, as the person at the respondent school board with the most knowledge of the case, she is the most appropriate person to be the school board’s representative/advisor at the hearing. The respondents’ counsel further submitted that it is well-established that a party can select its own representative/advisor for a hearing.
39I agree with respondent counsel’s submission that a party can select its own representative/advisor to attend the hearing, even if that person will be appearing as a witness. The Tribunal therefore orders that Ms. LaRosa will be allowed to attend the hearing, notwithstanding the witness exclusion order.
RESPONDENTS’ REQUEST FOR PRODUCTION OF DOCUMENTS
40The respondents filed a Request for an Order During Proceedings on April 22, 2009, which requested that the Tribunal order the applicant to produce a number of documents which were not disclosed by him. By the time of the hearing on June 25, some of the documents had been produced, but not all of them, including:
(a) Copies of all documents relating to the Applicant’s claim in the Application for damages relating to loss of income, including, without limitation, copies of all paycheques, pay statements, employment records, statements of income and revenue, income tax statements (i.e. T-4 statements) and income tax records relating to the Applicant’s income during the period from January 1, 2005 to the present date and copies of all statements of income and revenue, including client lists identifying revenue by client, income tax statements and income tax records relating to the income and revenues of Danjus Consulting Group during the period January 1, 2005 to the present date.
(b) Copies of all medical records, reports, treatment notes and diagnostic test results relating to the Applicant’s claim in the Application for damages relating to “severe emotional and psychological distress”, “pain and suffering through serious medical consequence” and “severe emotional and psychological distress on the part of my family” including, without limitation, all medical records, reports, treatment notes and diagnostic test results relating to the Applicant’s alleged hospitalization on June 4, 2007.
41At the hearing, the respondents’ counsel submitted that the requested documents are clearly relevant because the applicant is claiming special damages for loss of income to his consulting firm, and general damages for psychological and emotional distress and pain and suffering through serious medical consequence (including a hospitalization on June 4, 2007), which he all attributes to discrimination by the respondents.
42The applicant filed a Response to the Request on May 6, 2009, which agreed to produce the requested documents, but only at the remedies stage of the hearing. At the hearing on June 25, however, the applicant’s counsel agreed to produce the requested documents in a more timely manner.
43Rule 16 of the Tribunal’s Rules of Procedure requires the parties to disclose all arguably relevant documents in their possession to each other well in advance of the hearing. I agree with the respondents that the documents that they have requested from the applicant are arguably relevant because of the specific nature of his claim for damages.
44I therefore ordered that the applicant disclose to the respondents and file with the Tribunal all existing documents listed in (a) and (b) above.
45On September 1, 2009, the applicant filed a package of documents with the Tribunal, which he identified as “relevant financial and medical documents for the Vice-Chair’s review.”
46On October 28, 2009, the respondents filed a further Request for an Order During Proceedings, which stated that the applicant had failed to comply with the Tribunal’s order. The Request attached a letter from the applicant, which stated:
It is my understanding that at the June 25th, 2009 Hearing of this matter, Vice-Chair Bhattacharjee directed that he be provided with copies of all medical and financial documents for his review with respect to relevancy and privacy. I have complied with the Vice-Chair’s request on September 1st, 2009.
47The respondents requested that the Tribunal order the applicant to immediately comply with its June 25, 2009 production order, and direct that the applicant’s failure to comply with that order will result in a dismissal of the Application.
48The applicant filed a Response to the Request on November 12, 2009, which reiterated his belief that I directed him to provide me with copies of his medical and financial documents so that I could review them and determine the issues with respect to relevance and privacy.
49I agree with the respondents that the applicant has failed to comply with my June 25, 2009 production order. His statement that I directed him to provide the documents to me in confidence in order for me to review them and determine whether they are relevant and whether there are privacy interests that need to be protected is simply untrue.
50The Tribunal therefore orders the applicant to immediately disclose all existing documents listed in (a) and (b) above to the respondents. I will not dismiss the Application if the documents are not disclosed, but the applicant should be aware that a failure to disclose them will almost certainly affect his claim for a remedy if there is a finding of discrimination.
APPLICANT’S REQUEST FOR PRODUCTION OF DOCUMENTS
51The applicant filed a Request for an Order During Proceedings on May 7, 2009, which requested that the Tribunal order the respondents to produce a number of documents and things which were not disclosed to him. Specifically, he requested the following:
(a) Statistics relating to the number of parents whose children attend an elementary school within the York Catholic District School Board who were issued exclusion/trespass letters pursuant to subsection 265(1)(m) of the Education Act, R.S.O. 1990, c. E.2, because of their alleged improper conduct at a School Council Meeting, for each of the academic years 2005-2006, 2006-2007 and 2007-2008.
(b) Copies of all exclusion/trespass letters, excluding personal information, issued to parents whose children attend an elementary school within the York Catholic District School Board who were excluded pursuant to subsection 265(1)(m) of the Education Act because of alleged improper conduct at a School Council Meeting or other open meetings, for each of the academic years 2005-2006, 2006-2007 and 2007-2008.
(c) All materials that the respondents relied upon to substantiate the decision to exclude the applicant from St. Stephen Catholic School.
(d) All video surveillance tapes from St. Stephen Catholic School for the evening of May 23, 2007.
The applicant submitted that all the above documents and things are relevant to the issue of whether the exclusion/trespass letter that was issued to him on June 1, 2007, was discriminatory.
52The respondents filed a Response to the Request on May 15, 2009, which objected to providing the exclusion/trespass letters issued to other parents because they are not arguably relevant to the Application, and the harm that would be done to the privacy interests of those parents outweighs any benefit that may be gained by the applicant. The Response further submitted that, should the Tribunal determine that the documents are arguably relevant, it should order that the respondents produce them to the Tribunal alone to determine whether disclosure to the applicant is truly necessary for the purposes of justice.
53The Response also stated that the video surveillance tapes do not exist and all materials that the respondents relied upon to exclude the applicant from St. Stephen Catholic School have been disclosed.
54At the hearing, the respondents’ counsel further submitted that there is no obligation on the respondents to create statistical information related to parents who have been issued exclusion/trespass letters.
55In response, the applicant’s counsel clarified that the applicant is only seeking existing statistical information with respect to parents who were issued exclusion letters/trespass letters, and is not asking the respondents to create statistics. He also stated that the applicant recognizes that there may be legitimate privacy interests with respect to the exclusion/trespass letters issued to other parents, and consents to the respondents producing them first to the Tribunal, who will decide if there are any legitimate privacy issues to address.
56In my view, the statistical information and the copies of the exclusion/trespass letters are arguably relevant to the issue of whether the respondents discriminated against the applicant with respect to services and facilities because of his association and dealings with persons identified by a prohibited ground of discrimination.
57I therefore ordered that the respondents disclose to the applicant and file with the Tribunal all existing statistical information listed in (a) above, and file with the Tribunal all the exclusion/trespass letters listed in (b) above.
58The respondents’ counsel then submitted that, from the respondents’ perspective, the applicant’s request is too narrow, and requested that the Tribunal allow them to disclose all other exclusion/trespass letters during the relevant time period. The applicant’s counsel consented to the request.
59I therefore ordered that the respondents file with the Tribunal copies of all exclusion/trespass letters issued to parents whose children attend an elementary school within the York Catholic District School Board who were excluded pursuant to subsection 265(1)(m) of Education Act, for each of the academic years 2005-2006, 2006-2007 and 2007-2008.
60To date, the respondents have not complied with the Tribunal’s order. The Tribunal therefore orders the respondents to immediately comply with the Tribunal’s order.
LATE DISCLOSURE
61Rules 16 and 17 of the Tribunal’s Rules of Procedure require the parties to deliver to each other and file with the Tribunal copies of all the documents that they intend to rely upon at the hearing, as well as a witness list with a brief statement summarizing the expected evidence of each witness. In the case at hand, the deadline for delivery and filing was May 11, 2009.
62The applicant complied with the deadline, but then delivered and filed a supplementary witness list and further documents and things on June 1, 2, 8 and 16, 2009. The respondents filed their documents and witness list with the Tribunal on May 15, which did not comply with the deadline. The respondents then filed further documents on June 1.
63The respondents’ counsel filed a letter dated June 8, 2009 with the Tribunal’s Registrar, which objected to the applicant’s delivery and filing of further documents after June 2 on the basis that he has demonstrated a complete disregard for the Tribunal’s Rules and should not be able to rely upon documents delivered in such a flagrantly inappropriate manner.
64The applicant’s counsel filed a letter dated June 23, 2009 with the Tribunal’s Registrar, which stated that the applicant did not receive the respondents’ disclosure of documents and witness list until May 19, which was eight days late, and the respondents then delivered further supplementary materials late. The letter further stated that all the materials that the parties want before the Tribunal have now been delivered and filed, and should be included for the purposes of the hearing.
65At the hearing, the respondents’ counsel again objected to the applicant’s late disclosure of documents, and requested direction from the Tribunal.
66Rules 5.6 of the Tribunal’s Rules provide that where a party fails to deliver material to another party as required by these Rules, the Tribunal may refuse to consider the material. In my view, given the fact that the hearing of the merits of the Application is scheduled to begin on November 23, 2009, there will be no substantial prejudice to either party or an undue delay in the hearing as a result of the late disclosure by both parties. The late disclosure is therefore allowed.
DIRECTION
67To date, the Tribunal has dealt with no less than 13 preliminary issues which have been raised by the parties – some having merit or arguably having merit, but others clearly having no merit at all. In addition, both parties did not fully comply with the Tribunal’s Rules with respect to disclosure, and have failed to fully comply with Tribunal orders with respect to the production of documents.
68The Tribunal has a duty to be accessible and dispose of applications fairly, justly and expeditiously: see section 40 of the Code and Rule 1.1 of the Tribunal’s Rules of Procedure. This duty is not only in relation to the parties, but also the public. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated at para. 6:
(…) the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.
69I have concerns that the case at hand is expending significant public resources and not proceeding in a sufficiently expeditious manner. On the first day of the hearing (June 25, 2009), which dealt entirely with preliminary issues, I informed the parties that I had concerns about the number of witnesses that they were planning to call (13 by the applicant, including him, and nine by the respondents). I suggested to the parties that they consider reducing their witness lists and not call witnesses whose evidence would be repetitive and/or of marginal relevance to the issues in the case.
70I am particularly concerned that the applicant’s witness list and summary statements indicate that eight of his witnesses (including him) will testify about what happened at the School Council meeting on May 23, 2007, and the respondents witness list and summary statements indicate that six of their witnesses will testify about the same event.
71Rule 1.7(n) of the Tribunal’s Rules states that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may limit the evidence on any issue. If the parties do not voluntarily reduce their witness lists, I may refuse to allow some witnesses to testify or limit the evidence that I will hear from them. The applicant wrote a letter to the Tribunal’s Registrar dated November 16, 2009, which stated that he was reducing his witness list from 13 to eight witnesses. The respondents wrote a letter to the Registrar on the same date, which stated that they will determine how many witnesses they will call upon the conclusion of the applicant’s case.
72The hearing of the merits will begin on November 23, 2009, and further dates are scheduled for December 4, 10 and 18, 2009. I expect each party to endeavour to complete the presentation of their evidence, including calling witnesses, within two days. The applicant is directed to present his evidence first on November 23 and December 4, and the respondents are directed to present their evidence on December 10 and 18.
73The parties are reminded that the hearing has not been bifurcated. Therefore, they are expected to address both liability and remedy when they present their evidence. In other words, when the applicant presents his case, I expect to hear evidence about both the issue of discrimination and what remedy he is seeking to address the alleged discrimination. Similarly, when the respondents present their case, I expect to hear evidence about both the issues of discrimination and remedy.
74The parties are also reminded that none of the documents that they have disclosed and filed with the Tribunal have been admitted as evidence yet. The normal process for admitting a document as evidence is that, during the course of the hearing, the party refers to the relevant document and requests that it be admitted as evidence and marked as an exhibit. The other party can always object to the admission of the document, in which case I will hear submissions from both sides, and decide whether or not to admit it.
ORDERS
75The Tribunal makes the following Orders:
(a) The respondents’ request to exclude non-party witnesses from the hearing room until they have given their evidence is granted.
(b) The respondents’ request to exclude children who are pupils within the respondent school board from the hearing room is denied.
(c) The respondents’ request for a publication ban is denied.
(d) The respondents’ request to amend its Response as per its February 5, 2009 letter to the Tribunal is granted.
(e) The applicant’s request to exclude Susan LaRosa from attending the hearing room is denied. She is allowed to attend at all times, notwithstanding the witness exclusion order.
(f) The respondents’ request for production of documents from the applicant, as set out in paragraph 40(a) and (b) above, is granted.
(g) The applicant’s request for production of documents from the respondents as set out in paragraph 51(a) above is granted. The respondents shall also file with the Tribunal copies of all exclusion/trespass letters issued to parents whose children attend an elementary school within the York Catholic District School Board who were excluded pursuant to subsection 265(1)(m) of Education Act for each of the academic years 2005-2006, 2006-2007 and 2007-2008.
(h) The late disclosure of documents by the parties is allowed.
Dated at Toronto, this 18th day of November, 2009.
“Signed by”
Ken Bhattacharjee
Vice-chair