McKinnon v. Ontario (Correctional Services), 2009 HRTO 862

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael McKinnon

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Correctional Services, Frank Geswaldo, George Simpson,

Phil James and James Hume

Respondents

-and-

Ontario Public Service Employees Union

Intervenor

INTERIM DECISION

Adjudicator: H. Albert Hubbard

Date: June 16, 2009

Citation: 2009 HRTO 862

Indexed as: McKinnon v. Ontario (Correctional Services)

AppearanceS BY

Michael McKinnon, Complainant ) Kate Hughes, Counsel

Ontario Human Rights Commission ) Isfahan Merali, Counsel ) Prabhu Rajan, Counsel

Ministry of Correctional Services, )

Frank Geswaldo, George Simpson, ) Leslie McIntosh, Counsel

Phil James and James Hume, Respondents )

Ontario Public Service Employees Union, ) Joshua Phillips, Counsel

Intervenor )

Introduction

1On December 10, 2008, the complainant sent a 16-page letter to the Tribunal requesting that it “reconvene to hear submissions and evidence in order to clarify the outstanding orders from both 2002 and 2007”. It is alleged that the Ministry of Correctional Services (the “Ministry”) failed to comply with those orders in certain respects, and the letter sets out a list of seven issues that the complainant wants the Tribunal to address. Following a pre-hearing conference held on April 20, 2009 to consider the complainant’s request, the Tribunal issued its Interim Decision, 2009 HRTO 482 (the “April 2009 decision”), in which a number of specific orders were made. Paragraph 2 of the April 2009 decision is as follows:

After hearing the parties, the Tribunal concluded that the hearing must be reconvened in order to hear evidence and submissions regarding those allegations and to make such further orders and rulings as might be necessary. It was agreed that the hearing will resume on June 3, 2009 and that the parties will endeavor to identify the outstanding issues by May 27, 2009.

2Although the April 2009 decision was silent on the point, an understanding was reached at the conference regarding the order in which the evidence would be presented. It seemed apparent that, if called first, the complainant could only repeat the assertions made in his December 10 letter, the surrounding circumstances of which are entirely known to the Ministry. Having regard to the unusual character of these proceedings, it seemed to have been accepted that Dr. Ralph Agard (the Acting Deputy Minister overseeing the matter) would attend to give evidence regarding some of these issues when the hearing reconvened on June 3. However, on May 27, Ms. McIntosh advised the parties by e-mail that:

it is the Ministry's position that it is not required to lead its evidence first on June 3rd [and] that any party that alleges that the Ministry is in breach of one of the Tribunal's orders is required to lead evidence to that effect, to which the Ministry may then respond . . . particularly … in light of the ‘list of issues’ just received.

3Although Ms. McIntosh acknowledged the understanding (as she put it) that “the Ministry should be prepared to go first”, she was dissatisfied with the information provided by the complainant on May 27. She advised the parties of her view that the Tribunal had not made an order or ruling requiring the Ministry to present evidence first, and she submitted that the matter “should be decided after an argument on the record and with a ruling on the record”. In response, the other parties and OPSEU (the intervenor) urged the Tribunal to proceed in accordance with that understanding because, as Ms. Merali put it on behalf of the Human Rights Commission (the “Commission”):

The issues we are dealing with do not follow the typical format of a Tribunal hearing [and] it would be more efficient and expeditious to hear the Ministry's evidence/response on the issues raised by the complainant, with a view to having the other parties address the evidence that requires clarification or are of concern in cross-examination [with] full rights of reply or recall accorded to the Ministry to address fairness concerns.

4Ms. McIntosh is quite correct in stating that I had not made a “ruling” or an “order” requiring the Ministry to testify before the complainant calls evidence regarding his allegations, and no order to that effect was made in the Interim Decision. That being so, and since Ms. McIntosh had not had adequate time to prepare and present an argument on this point at the conference, I responded to the parties’ e-mail exchanges as follows:

It would be untoward for the Tribunal to order a departure from the norm without providing the Ministry with an opportunity to fully argue the point on the record, [and] much as I regret prolonging the hearing by using any part of hard-to-come-by hearing dates to deal with procedural matters, fairness dictates that the opportunity to make such submissions be provided at the outset.

5When the hearing reconvened on June 3 to hear the parties’ submissions as to the order in which the evidence should be presented, the Ministry raised “two main objections to the way the complainant proposes that the hearing should proceed”, namely, the “absence of a list of issues [and] the proposal that the Ministry lead its evidence first, in any event”. (Of course, there was in fact a “list of issues”, and the substance of the Ministry’s objection was that it lacked particulars.) It was submitted that if I acceded to that proposal I would be overreaching my authority. Ms. McIntosh outlined as follows the “legal principles” that, in her opinion, support her submissions:

(1) Before the complaint to the Tribunal is made, it is incumbent upon the party alleging the noncompliance with a Tribunal order to bring that noncompliance to the attention of the respondent and provide the respondent with an opportunity to remedy it.

(2) The party alleging noncompliance with the Tribunal order is obliged to complain to the Tribunal with sufficient notice of particulars of the allegations and how those allegations relate to the failure to implement an order.

(3) It is incumbent upon the party alleging noncompliance with the Tribunal order to lead evidence first to make out a prima facie case of noncompliance, in which case the burden shifts to the Ministry, the respondent, or the Ministry in this case, to rebut that prima facie case. Just for the record, I add that, in my submission, we don't -- in fact, the ultimate burden would remain on the party alleging the noncompliance

Particulars of the Issues

6The first two “principles” relied on by the Ministry have to do with the sufficiency of the particulars provided in respect of the complainant’s list of issues. In addition to the seven issues set out in his December 10 letter, six additional issues were identified in Ms. Hughes’ May 27 e-mail compliance with the stipulation that the parties endeavour to identify the outstanding issues by that date. The complainant’s complete list of issues (as of June 3) is as follows:

1. Evidence of Bad Faith
2. Training Issues
3. Compliance Committee Issues
4. External Investigators and WDHP process and complaints
5. SAROCC
6. Financial Issues
7. Return to Work Plan
8. METRAC Consultants Matters
9. Accountability Issues
10. Aboriginal Issues
11. Allocation of Resources, Financial Issues and Ministry Structures
12. Devlin Recommendations and their Implementation
13. Project 800 Review and other Reviews Relevant to the Orders

7As to whether the first “principle” or requirement cited by the Ministry was complied with, it is to be noted that in her December 10 letter, after listing “the main area of concern” to the complainant, Ms. Hughes states (at page 2) that:

Mr. McKinnon has tried very hard to resolve these issues without returning to Professor Hubbard for assistance. Through counsel he has met with the Ministry and other parties many times throughout the year and worked cooperatively and in good faith to try to resolve these matters without a return to the Tribunal.

Then, in her penultimate paragraph (at page 16), Ms. Hughes observes that:

Although Mr. McKinnon has tried his best to avoid asking the Vice-Chair and the Tribunal to be involved again, the matters set out above indicate wholesale failure, yet again, to implement Orders, in some cases, at all, and others (such as the training orders) have only been partially implemented. The lack of implementation and the unacceptable passage of time will require further Orders of the Tribunal.

And again, in her February 10, 2009 letter to the Tribunal, Ms. Hughes points out that “counsel have already met on all of these issues except the termination of Ms. Crean [which is] not an issue that could be mediated”.

8According to the complainant, the issues have been discussed “many times” to no avail, and that is precisely why he has requested the Tribunal’s intervention. That intervention is not to be postponed in order to compel him to resume discussions he regards as fruitless and thereby risk further prolongation of his absence from his workplace—a de facto exclusion he and his wife have endured since 2002. There is no point in telling him to go back and talk some more.

9In support of the second “principle”, counsel quoted at length from several passages in two of the Tribunal’s decisions in McKinnon v. Ontario (Ministry of Correctional Services) [1999] O.H.R.B.I.D. No. 3 (the “1999 decision”) and [2002] O.H.R.B.I.D. No. 22 (the “2002 decision”). The thrust of those passages (which I need not review) was said by Ms. McIntosh to be that “when dealing with the question of the implementation of the [Tribunal’s] orders, there is an expectation that there will be particulars of the allegations in order to persuade the Tribunal that it’s a matter that it ought to embark upon.” However, I did not get the sense that there was any disagreement in that regard; indeed, the April 2009 decision rests on a finding that sufficient particulars were provided at the pre-hearing conference to persuade me to deal with those matters.

10As to whether the second “principle” or requirement advanced by the Ministry was met in the present circumstances, it is clear that the complainant’s December 10 letter constitutes a complaint to the Tribunal. It was made months ago. It explains at considerable length the genesis and scope of the allegations raised, and all of the matters with which it deals relate to the implementation of the Tribunal’s orders. Thus, the real matter of contention is as to the sufficiency of the particulars regarding the allegations made in connection with the complainant’s “list of issues”. The other parties are of the view that sufficient particulars have been provided, and it is implicit in the April 2009 decision that I share their view regarding the issues dealt with in the December 10 letter and considered at the April 20 conference. In my opinion, that matter must be regarded as settled. However, sufficient particulars have not as yet been provided regarding the additional issues set out in Ms. Hughes’ May 27 response to the stipulation that the parties endeavour to identify the outstanding issues by that date.

11Although I do not propose to provide a written review of 16 pages of detailed accusations in order to justify my conclusion as to the sufficiency of the particulars provided, the first of the issues raised in the complainant’s December 10 letter is rather troubling and warrants comment. Under the heading “Evidence of bad faith on the part of the Ministry”, that letter provides a nine-paragraph account of the allegation that the Ministry undermined its capacity to implement the Tribunal’s orders by “unexpectedly” terminating the contract of Ms. Fiona Crean “under suspicious circumstances”.

12In her December 10 letter, Ms. Hughes indicates that the complainant and the Commission were persuaded to join in the request for the consent order made in November 2007 by promises made regarding the role to be played by Ms. Crean, the then newly-appointed Assistant Deputy Minister, Organization Effectiveness. According to the complainant, her assurances (along with those of the Deputy Minister) as to a more rapid and efficacious implementation of the orders led the other parties to agree to a new approach. Mr. McKinnon can only repeat his assertion that those promises were not carried out and reiterate his suspicions in that regard. Whereas he can provide no further particulars, the Ministry is well aware of the nature and import of those allegations, knows the circumstances regarding Ms. Crean’s departure, knows the case to be met in that regard and, in my opinion, is in no need of further particulars in that respect. As said in the December 10 letter:

… Ms. Crean was to meet personally with Mr. McKinnon and was to personally oversee the implementation of his Orders, including personally preparing and overseeing the training. … The result was that the Ministry convinced the Ontario Human Rights Commission and the Tribunal that they would be able to proceed more effectively and in a more timely manner with the ADM Ms. Crean working on overseeing the implementation instead of the Third Party ... Then the Ministry replaced their Deputy Minister who then quietly and unceremoniously terminated Ms. Crean.

13As to Ms. Hughes’ reference to the Tribunal’s motivation, let me be clear: I was not in fact convinced of the efficacy of what was proposed. Rather, it was only because the request of the parties was unanimous that I was reluctantly impelled to incorporate in the Tribunal’s Interim Decision, unreported November 6, 2007, a consent order effectively (and regrettably, as I thought at the time) terminating the oversight being provided by the Tribunal-appointed Third Party (Charles Smith and Tina Lopes) with whose endeavours I was greatly impressed. They had set out clear time lines for the completion of their work, and there was no indication that they were not on track to bring the implementation of the orders to completion by the end of 2009, as projected by them. Ironically, the situation as it now stands appears to the complainant to make it highly unlikely that he and his wife will be able to return to the workplace by the end of this year.

14As to the sufficiency of the particulars, the only other matter I will deal with in these reasons is the issue relating to the Workplace Discrimination and Harassment Policy (WDHP) complaints tracking systems. The efficacy of the WDHP tracking system is fundamental to the McKinnons’ return to work, and the December 10 letter deals at length with the alleged failure of the Ministry in that regard. Here is what Ms. Hughes had to say (beginning at page 106 of the transcript) about the tracking system information obtained as a result of the April 2009 decision:

Now, I should add, when we look at the disclosure on that tracking system, we don't say it's wonderful, we say it seems to be the same old thing. But that is really an evidentiary factual thing that we're going to have to hear when we hear from the Ministry saying how wonderful this is.

Our position is, and that's why it didn't fall off the list, that when we look at it, this tracking system that we were given in May, there are numerous problems with it. There are numerous problems in terms of Mr. McKinnon, himself, because he has invoked (ph) in it, and there are other same-old problems. I am not going to outline them to you today because I don't think it's for me to give evidence with respect to this matter, quite frankly. It is an evidentiary issue, and when you look at who has the knowledge, it is the Ministry who has that knowledge.

15In reply argument, Ms. McIntosh says that the system was changed before the letter of December 10, that Ms. Hughes and the complainant knew this to be so, that they failed to attend a meeting at which the new system was explained, and that Ms. Hughes now finds fault with the new system without indicating what those faults are. Ms. McIntosh’s comment on this issue (beginning at page 175 of the transcript) is as follows:

(…) So two things, one is they asked for [the new system], they were told that it would be done at the TEDC Compliance Committee and they didn't turn up, they were offered it from me at a lawyer level, and they didn't avail themselves of it. To say “we don't have it” is not correct.

Secondly, my friend says today, “anyway we have numerous problems with the new system”. Why don't I have a list of the numerous problems of the new system? I think it is painfully unfair to put Dr. Agard on the stand, as my friend suggests, and have him explain the new system, meanwhile she has her list of the numerous problems that she says are the problems which she's going to put to Mr. Agard without him having any opportunity to understand what it is that is in store for him. … let's have an agreed statement that this is what the Ministry is doing and these are the issues that Mr. McKinnon or OPSEU or the Commission have with it. That is what's missing in this case. So my friend, from her own mouth, proves the issue [as to the want of particulars] when she says there's numerous problems that she has with the new system.

16In my opinion, the December 10 letter set out sufficient particulars in respect of this issue under the heading “Orders regarding External Investigators and WDHP process and complaints”, and the post-disclosure assertion is that the new tracking system perpetuates the “same old problems”. The suggestion is that nothing of substance changed and that the “particulars” regarding the earlier system apply equally to its successor. I am satisfied that Dr. Agard would not be caught unawares by the questions to be put regarding the tracking systems, old and new. After all (as the saying has it), we are not dealing with rocket science. Dr. Agard is fully familiar with the matters at issue and, even if some conundrum found its way into a question, he would be afforded an opportunity to inform himself fully before answering it.

Matters of Jurisdiction

17Before moving on to the third “legal principle” advanced by Counsel for the Ministry, I want to deal in a general way with two jurisdictional matters that arose in her presentation, that is, in addition to her view that to accede to “the proposal that the Ministry lead its evidence first” would be to overreach my authority—a matter to be addressed in relation to that third principle. The first matter has to do with Ms. McIntosh’s reference to paragraph 13 of the 2002 decision which passage she suggests “has come to be called the test” of the Tribunal’s jurisdiction to deal with allegations of non-compliance. That paragraph is as follows:

[13] I am of the opinion that the overriding issue before me is not whether the new allegations have been made out; nor is it whether the orders were effective; rather, it is whether the Ministry carried out those orders in good faith with a view to making them effective. If it did, then I do not think I have the jurisdiction to impose some other set of orders on the Ministry simply because hindsight makes it appear that the remedy sought by the Commission and the complainant and ordered by me was inherently inefficacious, and that they ought to have asked for (as they now do), and I ought to have ordered, something other than (or in addition to) a human rights training programme. But if through its own fault the Ministry failed to comply with the orders, then that direct transgression would, I think, require a revision of the orders that appropriately addresses the reasons for that failure so as to better assure their fulfilment.

18Lest there be any misapprehension in that respect (as the reference to the 2002 decision portends), I want to remind the parties that the evolution of this case has been such that the Tribunal’s jurisdiction to revisit its orders no longer depends on a finding of a failure to carry them out “in good faith”. That point was made in Decision 2007 HRTO 4 (the “2007 decision”). As noted in paragraph 35 of that decision, it had been submitted that “further orders could be made only if there had been a failure to carry out previous orders in good faith”. After dealing with that submission at length, I concluded as follows:

[44] In my view, the “bad faith” bridge having been traversed, the question of effectiveness (somewhat ironically, in light of the Commission’s 2002 position) is now at the centre of the Tribunal’s continuing jurisdiction to supervise its orders. In its March 21, 2001 decision denying the Ministry’s application for a judicial review of the Tribunal’s May 7, 1999 decision, the Divisional Court observed (in paragraph 10) that “The case law establishes that a board of inquiry has a remedial authority of a supervisory nature to remain seized of jurisdiction ‘with respect to remedial issues in order to facilitate the implementation of the remedy’ imposed by it.” In dismissing the Ministry’s appeal from the 2002 decision, the Divisional Court said that the Tribunal has “a supervisory role to ensure delivery of an effective remedy”, and it went on to state that:

We are not to be taken in these reasons as holding that supervisory jurisdiction is unlimited so as to invite fresh post-decision evidence of differing acts of discrimination from those originally adjudicated… We are confronted in this appeal with a unique situation in which outrageous discrimination continued unabated for a period of approximately fifteen years and in which the Tribunal’s original remedial orders appear to have been, at least in part, subverted. [Emphasis added. We are not now dealing with allegations of “acts of discrimination”, but with allegations of failed compliance rendering the orders ineffective.]

19Of more concern, however, is the shadow cast over my jurisdiction to deal “at all” with failures to comply with the Tribunal’s November 2007 Interim Order now raised by the complainant, whether or not sufficient particulars of such allegations are provided. In that regard, it is important to set out the following exchange between Ms. McIntosh and myself (beginning at the bottom of page 31 of the transcript of June 3):

MS. McINTOSH: ... One of the things that I noticed when I was preparing for this, and, again, I haven't researched it, I'm going to have to reserve my right to make argument with respect to this at the appropriate time, but you did not expressly remain seized with respect to these orders. I am, frankly, just not sure of the implications of that. I don't know if you have to use the magic words that you "remain seized" or not. I don't propose to argue that today. If, somewhere down the road, we're arguing about your remedial authority, I may have to raise that issue. I don't want to, I want to get to the questions that are genuinely troubling people and answer those issues and, if necessary, craft some orders that will address them. I feel obliged, in the interest of my client, to note that for the record so that it doesn't go by on this occasion.

PROFESSOR HUBBARD: Before you go on, just with respect to that last matter, the concluding sentence in that interim order of November 6, 2007 is: "For greater certainty, this Order replaces previous Orders of the Tribunal with respect to the role or mandate of the Third Party." Is there some implication in that, would you think, that it does not replace previous orders with respect to other matters in the mandate of the third party?

MS. McINTOSH: I don't know, Professor Hubbard, and I apologize for not -- for seeming to duck that question. I think it probably could cut both ways. I think it could be some support for the notion that you have remained seized, at least with respect to that, and but whether -- what the implications are for the remaining orders in paragraphs 1, 2 and 3, I don't want to argue it, I don't want to rely on that technicality, at least not today. I'm going to seek instructions with respect to that. That's not my point today.

My point today is simply that these are the orders that, as I understand it, these latest failures to comply arise out of. I want to address those failures to comply today. I don't want to argue today that you don't have the jurisdiction to do that.

The complaints in the December 10letter arise from these orders. I am content to make my argument about needing a list of issues who should go first. If we have to get to the question of whether you can do it at all, I sincerely hope we don't, then I suggest we should do that with some -- that's not an issue that I raised with my friends, the failure to say you remain seized, it's just something that occurred to me, and I don't think any of us are in a position to address it today. As I say, that's not my focus here today. I just say it for the record so that no one can say, down the road, that I didn't mention it at the earliest opportunity.

20I was taken aback by the suggestion that I lacked jurisdiction to deal with significant aspects of my orders. That matter is of overriding importance since, if I lack jurisdiction to deal therewith, it would be a waste of everyone’s time to return on June 19 to hear evidence concerning allegations of non-compliance with those orders. That such an important matter had not been researched is understandably attributable to its not having occurred to counsel until shortly before we reconvened. However, that she will seek instructions as to whether to challenge my jurisdiction on a “technicality” some time “down the road” is a prospect to be avoided. The Ministry cannot lie in wait with a jurisdictional issue, ready to raise it when the moment seems propitious; it must raise and speak to it at the earliest opportunity. As Ms. Hughes pointed out, it is an implicit averment of her December 10 letter that the Tribunal has jurisdiction, and the Ministry had ample time to turn its attention to that matter and to give notice of an intention to contest jurisdiction long before insinuating that prospect into its submissions on June 3. The following is part of what Ms. Hughes had to say in this regard (at page 126 of the transcript):

So I raised this issue. I say, look, we're taking the position you have the jurisdiction. We have the Ministry's response which immediately follows my letter. They respond February 23rd, 2009 to my December 10th, 2008 letter. You will notice in their letter that they do not take issue with your jurisdiction to return. When Ms. McIntosh says to you, I'm raising it now because I don't want anyone to say I didn't raise it at the earliest possible opportunity, I would ask that the earliest possible important would have been in response to my letter of December '08.

21My jurisdiction having been called into question, it would be irresponsible to leave it to the Ministry’s discretion whether (and when) to seek an answer to that question, all the while continuing with the hearing. Clearly, that matter must be put to rest before hearing evidence. As it happens, I do not require the assistance of counsel to readily conclude that the failure to confirm at the end of an Interim Decision that I remain seized of the matters in question does not deprive me of my supervisory jurisdiction “with respect to remedial issues in order to facilitate the implementation” of my orders; nor do I intend to lose yet another day in order to entertain a submission to the contrary. A great many interim orders have been made since this litigation began in 1996, and they do not contain such unnecessary notations. Moreover, the November 2007 Interim Decision simply modified previous orders made in decisions of a dispositive character. It would be astonishing if the Tribunal were precluded from dealing with an allegation that a consent order incorporated in its Interim Decision was obtained by subterfuge simply because an “I-remain-seized” clause was not tagged on to the end of it.

The Order of Presentation of Evidence

22The third “legal principle” referred to by Ms. McIntosh (paragraph [4], supra) has to do with the order in which the parties are to give evidence, and that is something that must be viewed in the context of the peculiar circumstances of this case at its present stage of evolution, some thirteen years after I became seized of the matter. Over those years a great many Interim Decisions have been issued, and three major Decisions have been handed down, each in the nature of a hoped-for final disposition of the matter, subject only to recall pursuant to my expressly retained jurisdiction. The number and nature of those decisions is attributable to the intransigence of a Ministry that continues to maintain an overwhelming adversarial approach to the resolution of its difficulties. Given all that has preceded, including the stinging rebukes of the courts of this province, one would have thought that a chastened Ministry would (at last) view the complainant’s concerns in a less antagonistic way, and that it would be less resistant to the exercise of the Tribunal’s supervisory jurisdiction over remedial issues. Instead, it quarrels over the complainant’s proposal that the Ministry call evidence to shed light on concerns regarding which it has far more knowledge and information than he, and in the course of such resistance it is disclosed that a challenge is being contemplated to the Tribunal’s very jurisdiction to intervene at his request in order to resolve disputes as to whether its orders are being appropriately followed.

23The complainant has endured a long and debilitating ordeal to which no end now seems to him to be in sight. He has identified issues that appear to him to contribute to his plight, and “through counsel he has met with the Ministry and other parties many times throughout the year and worked cooperatively and in good faith to try to resolve these matters without a return to the Tribunal”. The Tribunal has decided to inquire into these difficulties in the hope that the exercise of its remedial authority might ameliorate the situation. Given the sorry history of this affair and the point that we have reached, surely it is time for the Ministry to take an open and conciliatory approach, such as voluntarily calling evidence on matters that ought to be of mutual concern and regarding which it has information to which the other parties are not privy. Unfortunately, however, that is not the Ministry’s attitude, and deal with its continued resistance I must.

24I find it useful to begin by focusing on the scope of my authority under the Ontario Human Rights Code, R.S.O. 1990, c. H 19, as amended (the “Code”) and the practical alternatives provided by the Tribunal’s Rules of Procedure and Transitional Rules of Practice. The relevant provisions of the Code are as follows:

39. The Tribunal has the jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any application before it.

40. The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

41. 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.

42. (1) The Tribunal may make rules governing the practice and procedure before it.

(3) Without limiting the generality of subsection (1), the Tribunal rules may,

(a) provide for and require the use of hearings or of practices and procedures that are provided for under the Statutory Powers Procedure Act or that are alternatives to traditional adjudicative or adversarial procedures;

(b) authorize the Tribunal to,

(i) define or narrow the issues required to dispose of an application and limit the evidence and submissions of the parties on such issues, and

(ii) determine the order in which the issues and evidence in a proceeding will be presented;

(f) authorize the Tribunal to require a party to a proceeding or another person to,

(i) produce any document, information or thing and provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form,

(ii) provide a statement or oral or affidavit evidence, or

(iii) in the case of a party to the proceeding, adduce evidence or produce witnesses who are reasonably within the party’s control.

25The relevant provisions of the Rules of Procedure of the Ontario Human Rights Tribunal are found under the heading “Powers of the Tribunal”, and they are as follows:

1.5. The Tribunal may exercise any of its powers under these Rules at the request of a party or on its on initiative, except where the Rules provide otherwise.

1.6. The Tribunal will determine how a matter will be dealt with and may use procedures other than traditional adjudicative or adversarial procedures.

1.7. In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

g) determine and direct the order in which issues in a proceeding, including issues considered by a party or the parties to be preliminary, will be considered and determined;

h) define and narrow the issues in order to decide an Application;

j) determine and direct the order in which evidence will be presented;

k) on the request of a party, direct another party to adduce evidence or produce a witness when that person is reasonably within that party’s control;

q) on the request of a party, require another party or other person to provide a report, statement, or oral or affidavit evidence;

s) make such further orders as are necessary to give effect to an order or direction under these Rules;

t) attach terms or conditions to any order or direction;

w) take any other action that the Tribunal determines is appropriate.

26Although the Tribunal’s Rules of Procedure relate to applications made after June 30, 2008, the Tribunal’s new transitional Rules of Practice concerning matters to which the Commission is a party are similarly broad and liberal. The relevant parts of those rules are as follows:

13. In any proceeding to which the Rules apply, the Tribunal will conduct its process, and will apply these Rules in an manner that will, in its opinion, facilitate the fair, just and expeditious resolution of the merits of a complaint.

14. In exercising its powers and authority to hear and decide a complaint, the Tribunal may:

g) determine and direct the order in which issues in a proceeding, including issues considered by a party to be preliminary issues, will be considered and determined;

15. The Tribunal may exercise any of its powers under these Rules on its own.

27The normal procedure at the outset of a human rights case is to call upon the party making an allegation to lead evidence with a view to making out a prima facie case sustaining that allegation, thereby shifting the onus to the other party to rebut that prima facie case. Of course, we are not embarking on a fresh case. A decision was made and orders issued in 1998. Another decision was made in 2002 declaring that the orders had not been complied with, and fresh orders were issued. Yet another decision was made in 2007 declaring that the latest orders had not been complied with, and still more orders were issued. At the request of the parties an interim decision was subsequently made in 2007 modifying those orders. The allegations now before the Tribunal are that, yet again, there have been failures to comply appropriately with its orders.

28Counsel for the Ministry quoted liberally from, and discussed at great length, my observations in the 2002 decision regarding the burden of proof (paragraphs [21] to [30]). The gist of her submission was that, although the point has been reached in this case that the complainant does not have to prove that the environment of his workplace remains poisoned by reason of his allegations of non-compliance, he has to prove such allegations of non-compliance in order for the Tribunal to do anything about them. Again, however, it is not my impression that the other parties take a different view. Clearly, the Ministry cannot be taken to have the onus of proving that it has complied with some particular order of the Tribunal simply because the complainant or the Commission alleges that it has not, and I do not take that to be their position. Their position is that the circumstances surrounding these allegations are fully (if not exclusively) known to the Ministry, whereas the complainant has scant knowledge of them. And, of course, the Ministry knows which of its employees is the repository of such information, and such potential witnesses are reasonably within its control and presumably hostile to the complainant because of an obviously serious conflict of interest.

29The Tribunal has a supervisory duty regarding the implementation of its orders. Thus, when non-compliance is alleged with sufficient particulars to dispel any notion that the allegations are frivolous or vexatious, it is duty-bound to exercise the powers conferred on it under the Code to deal with the allegations in a way that “offers the best opportunity for a fair, just and expeditious resolution” of the issues. In so doing, the Tribunal may “adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures” that in its opinion “will facilitate fair, just and expeditious resolutions of the merits of the matters before it”.

30I have read with care the case law provided by the Ministry and by the complainant and I do not intend to add unnecessarily to the length of these reasons with analyses of those decisions. Suffice it to say that those decisions in no way diminish the powers of the Tribunal as conferred on it by the Code, nor do they impinge upon its exercise on its own of the powers conferred by Rule 14 (g) of the transitional Rules of Practice. Having pointed out that “the order in which the parties are to give evidence is something that must be viewed in the context of the peculiar circumstances of this case at its present stage of evolution”, and having regard to that long and quarrelsome history and to the core values of the Tribunal, I have decided to exercise the powers vested in me by calling upon the Ministry to present its evidence first regarding the issues set out in the complainant’s December 10 letter.

31Although, as suggested by the Commission, full rights of reply or recall will be accorded to the respondents to address fairness concerns, it is my hope that the directing minds of the Ministry will adopt a less adversarial approach than heretofore employed and will strive, along with the other parties, to assist the Tribunal to get to the merits of the matters before it so as to come to a just resolution of matters that it is in the true interest of the corporate respondent, as well as that of everyone else, to reach as expeditiously as possible.