McKay v. Toronto Police Services Board, 2009 HRTO 876

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Garry McKay

Complainant

-and-

Toronto Police Services Board and Christopher Fitkin

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 18, 2009

Citation: 2009 HRTO 876

Indexed as: McKay v. Toronto Police Services Board

WRITTEN AND ORAL SUBMISSIONS FROM

Garry McKay, Complainant | Kimberly R. Murray and Mandy Eason, Counsel Toronto Police Services Board, Respondents | Glenn Chu, Counsel Christopher Fitkin, Respondent | Melany Franklin, Counsel Ontario Human Rights Commission | Brian Smith, Counsel

1This Interim Decision addresses two Requests for Orders made by the respondent Toronto Police Services Board (“Board”) prior to the commencement of the hearing on the merits. The respondent Board requests that the Tribunal disallow the complainant’s proposed expert witnesses from being called to testify in the hearing. The respondent Board further requests that the hearing be bifurcated to deal separately with the issues of liability and remedy.

BACKROUND

2The complaint alleges discrimination in policing services on the basis of race, colour, ancestry and ethnic origin, contrary to section 1 and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”). The complaint stems from an incident on July 9, 2003 when the complainant, an Aboriginal man, was investigated and detained by the personal respondent, a police officer.

3A previous Interim Decision, 2009 HRTO 342, required the Ontario Human Rights Commission (“Commission”) and the complainant to furnish further particulars regarding what they alleged to constitute racial discrimination and/or amount to racial profiling based on the circumstances of the complaint. In accordance with that Interim Decision, the Commission and complainant filed further particulars and, in turn, the respondent Board filed amended pleadings.

4The hearing into the merits of the complaint was scheduled to begin on May 20, 2009. However, on April 27, 2009, the Commission advised the Tribunal and the parties that it was seeking an order from the Tribunal to permit the Commission to withdraw from active participation in the proceeding. Following a Case Management Conference, wherein parties confirmed that there were no outstanding transitional issues, the Tribunal granted the Commission’s request to withdraw. The style of cause has been amended accordingly.

5In accordance with the Tribunal’s Rules requiring pre-hearing exchange of documentary briefs and anticipated witness evidence, the complainant and respondent Board filed their witness will-says and documentary materials. The complainant indicated an intention to call Charles Smith to provide proposed expert evidence regarding racism and racial profiling. The complainant also indicated an intention to call Jonathan Rudin to provide proposed expert evidence regarding the experience of Aboriginal people with respect to law enforcement and policing of the Aboriginal community. The respondent Board indicated an intention to call Robert Swan, a sergeant with the Toronto Police Services, to provide proposed expert evidence regarding policing practices, with a particular reference to diversity issues.

6Subsequent to the exchange of these materials, the respondent Board brought a Request to Disallow the complainant’s proposed expert witnesses and the complainant requested an opportunity to present oral submissions on the issue. The Tribunal scheduled a preliminary hearing on the matter; however, prior to that date, the respondent Board advised that the personal respondent, Constable Christopher Fitkin, had retained independent counsel. Counsel for personal respondent Fitkin attended on May 29, 2009, and was allowed to make oral submissions in support of the Board’s request to disallow the complainant’s proposed expert evidence.

REQUEST TO DISALLOW COMPLAINANT’S EXPERTS

7The respondents rely on the following four criteria, enunciated in R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, as the appropriate test for determining admissibility of expert evidence:

• 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.

8The respondents challenge both of the complainant’s proposed experts on all four criteria. Specifically, the respondents contend the witnesses’ proposed evidence neither assists the Tribunal, nor is relevant to the issues before the Tribunal. The respondents argue that the witnesses lack both expertise and impartiality. The respondents submit that given these concerns the complainant should be barred from calling the witnesses to testify.

9The complainant’s submissions are grounded in the principle that the Tribunal is not bound by formal rules of evidence. While accepting the Mohan criteria as the prevailing analysis for determining whether expert testimony is admissible, the complainant argues that the Mohan test is not applicable at this pre-hearing juncture. The complainant distinguishes between leave to call an expert witness and admissibility of expert evidence. The complainant argues that issues with respect to relevance and special knowledge are more properly decided at the point of assessing admissibility of evidence and not at the pre-hearing stage when determining whether a party may call a witness to tender proposed expert evidence at the hearing.

10Relying on two Canadian Human Rights Tribunal decisions, the complainant submits that the test for deciding whether a party may call an expert witness is whether the proposed evidence would “logically contribute” to the case of the party calling the witness, see Mellon v. Canada (Human Resources Development), 2005 CHRT 12 (“Mellon”) and Public Service Alliance of Canada v. Minister of Personnel for the Government of the Northwest Territories, 2001 CanLII 25850 (C.H.R.T.) (“PSAC”). The complainant cites these decisions for the proposition that, at this pre-hearing stage, the Tribunal should merely be determining whether the proposed expert testimony would assist the Tribunal to decide an issue in the hearing:

[5] It is important to distinguish between the issues which arise on an application for leave to call witnesses and the issues which arise with respect to the admissibility of their testimony. Although it is inevitable that there will be some blurring of the line between the two areas, issues with respect to the relevance and admissibility of an expert's testimony are more properly decided when the witness is called. The inquiry at the present stage of the proceeding is merely whether the party applying for leave has reasonable grounds for calling the witnesses. In deciding such an issue, a Tribunal must bear in mind that a party is entitled to provide a complete answer to the case against it.

[6] Counsel for the Respondent appeared to take the position that the relevant question is whether the proposed evidence would have a significant bearing on a distinct issue in the case. We agree with this view of the matter. A Tribunal is not in a position to assess the reliability of proposed witnesses at this stage of the proceeding and can merely determine whether their testimony would logically contribute to the defence. It is accordingly sufficient if it can be reasonably said that the expert's testimony is needed to determine one of the factual issues in the case. This excludes testimony which undermines the fairness or expeditiousness of the process.

PSAC, supra.

11Rules 82 and 83 of the Tribunal’s Rules of Practice (January 31, 2008) require that a party “who seeks to have a witness qualified as an expert to give opinion evidence” provide the Tribunal and other parties with the name, address, and qualifications of the witness along with a report or a summary of the proposed testimony no less than 15 days in advance of the anticipated date of the testimony. Where a party fails to comply with providing such advance notice, the Tribunal may refuse to allow the witness to testify.

12In the present case, the complainant provided advance notice of an intention to call two expert witnesses in accordance with the Tribunal’s Rules. Thus, at this time, the complainant has notified the respondents and the Tribunal that the complainant seeks to have two witnesses qualified as experts in the hearing. The complainant accepts that issues regarding qualifications and admissibility of the proposed expert evidence will be determined by the Mohan criteria, as interpreted and applied by Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18, in the human rights context.

13The respondents point out that two recent Tribunal decisions have disallowed proposed experts from testifying at the outset of the hearing; see Persaud v. Toronto District School Board, 2008 HRTO 92 (“Persaud”) and Yousufi v. Toronto Police Services Board, 2009 HRTO 20 (“Yousufi”). In Persaud, the Tribunal determined that the witness would undoubtedly have been qualified as an expert; however, the proposed expert opinion was not on point with the issues in the case. Unlike Persaud, this Tribunal has not yet reached a conclusion regarding the area of expertise and qualifications of the proposed witnesses. In Yousufi, the Tribunal determined that the opinion proffered by the proposed expert expressly violated the ultimate issue rule and it was therefore unnecessary to assess the issue of expertise.

14At this preliminary stage, I do not find it is appropriate to disallow the witnesses prior to hearing evidence, including any cross-examination, in relation to the witnesses’ qualifications, the parameters of the proposed evidence in order to assess relevance and necessity, and as assessment of whether those qualifications or proposed evidence present any indicia of partiality. The respondents’ request to disallow the proposed expert evidence is denied at this stage, subject of course to their right to renew the objection after hearing testimony with respect to the above issues.

Bifurcation of the Hearing

15The respondent Board requests that the hearing be bifurcated to deal, at the first stage, with issues of liability and, if liability is established, then at the second stage to deal with any remedial issues. The complainant opposes the request for bifurcation on the basis that the complainant will have the additional expense and burden to call the expert witness twice to speak to the issues of liability and remedies.

16It is noteworthy that the remedies sought by the complainant are not only expansive, but have been described by the complainant as “systemic” and necessitating specialized evidence in order to facilitate this Tribunal’s understanding of the issues. The respondent Board indicates that it will contest the remedies sought by the complainant. The numerous preliminary matters brought forward by the various parties have significantly protracted the time already spent in this pre-hearing stage, and the nature and scope, if any, of the complainant’s proposed expert evidence remains undecided.

17As such, given the proposed extent of the evidence and arguments with respect to remedies, I find that a fair, just and expeditious resolution of the issues favours bifurcating the hearing. The Request to bifurcate the hearing is granted and the hearing will be divided into two stages to deal first with issues of liability and second any issues relating to remedy if a violation of the Code is established.