HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
E.P. by her litigation guardian W.F.
Applicant
-and-
Ottawa Catholic School Board and A. D.
Respondents
interim DECISION
Adjudicator: Kaye Joachim
Indexed as: E.P. v. Ottawa Catholic School Board
Appearances
E.P., Applicant | W.F., Representative
Ottawa Catholic School Board and A. D., Respondents | Paul Marshall, Counsel
INTRODUCTION
1This is an Application filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint which underlies the present Application was filed with the Ontario Human Rights Commission on October 9, 2007.
2The purpose of this Interim Decision is to direct the appropriate scope of reply evidence scheduled to be heard on October 14, 2010, address the applicant’s Request for Order and determine the dates of written submissions.
3The primary issue in this case relates to the adequacy of the accommodation provided to the applicant from September 2006 when she was in Grade 4 at St. Andrew Catholic Elementary School (“St. Andrew”) and the first month and a half in Grade 5 at St. Patrick’s Catholic Elementary School (“St. Patrick’s”) until mid-October 2007.
4The second aspect of the case relates to the relationship between the applicant, W.F., and the personal respondent, A.D., and whether a poisoned school environment was created at St. Patrick’s.
5The applicant was directed to provide a written statement of her proposed reply evidence, together with any additional documents she intended to rely upon. The respondents object to the proposed evidence in its entirety for the following reasons:
The proposed evidence is not proper reply evidence, but is evidence which merely reiterates evidence which was given in chief or introduces for the first time evidence which should have been given in chief.
The proposed evidence offends the collateral evidence rule.
The proposed evidence in the form of audio recordings and emails ought to have been disclosed prior to the hearing and its introduction at this time is untimely and prejudicial to the respondents.
6In order to direct the proper scope of the reply evidence I note that in cases of alleged failure to accommodate in the provision of education services, the bulk of the evidence about accommodation will generally be called by the respondent. It is difficult for an applicant to anticipate in advance the respondent’s evidence. Although the respondents complied with the Tribunal’s Rules of Procedure and the disclosure made by the respondents was more than adequate, the specific details of the respondents’ position were not and could not have been known to the applicant prior to the hearing of the evidence.
7Thus, I am prepared to give the applicant some leeway in calling evidence to dispute or refute the evidence of Sutton, Hanson, McGrath, Mulvahill, Moore, Kelly McCarthy and A.D. In addition, during the cross-examination of these witnesses, the applicant often stated that she disagreed with their evidence and wanted to put her evidence to them at that time.
8Given the scope of the hearing and the fact the applicant’s representative is not a lawyer, and in order to expedite the cross-examination process, I advised the applicant that she would be permitted to give her version in reply, notwithstanding that this might offend the obligation to put the contradictory evidence to the witness while they are on the witness stand.
9In my view, the bulk of the applicant’s proposed reply evidence is consistent with the above ruling. Essentially, the applicant is attempting to give her version of events to circumstances where her evidence disputes the other witnesses’ evidence. While the other witnesses were not given a specific opportunity to respond to the specifics of this contradictory evidence, it was understood that the witnesses would disagree with her version and it will be my task to determine which evidence to prefer. I saw little value in having W.F. state her proposed evidence, having the witness disagree with the proposed evidence and then have the W.F. testify in reply.
10However, to the extent that the applicant is attempting to raise entirely new matters and not responding to the above witnesses’ evidence, I have excluded her proposed evidence: page 29, Mr McCarthy – paragraph 1; page 30 Reply to G-13.1; page 46, paragraphs 4 and 5; page 47, paragraphs 1, 2, 3, and page 50, referring to swearing.
11Further, to the extent that the applicant is attempting to refute evidence that is collateral to the main issues, I will exclude that evidence and will disregard all evidence relating to these collateral matters: page 19, paragraphs 2 and 3; page 27, Other Reports, paragraphs 2 and 3; page 28, paragraph 1; and page 42, paragraphs 1 to 5.
12The applicant attempted to introduce audio recordings of various conversations she had with the respondents’ officials and witnesses. In my view, such evidence ought to have been disclosed prior to the hearing and should not be permitted to be introduced in reply. The applicant will be permitted to give her version of the various conversations (as she has done in her proposed reply) but the audio recordings are not admissible.
13The applicant introduced some new emails in reply and the respondents objected on the basis that the applicant was required by the Rules and was directed earlier in the proceedings to provide all relevant emails and the applicant stated that she had done so. The respondents assert that it would be an abuse or the process for the applicant to produce the emails at this stage.
14I am troubled by the constant discovery of new emails by the applicant. However, I note that the respondents also discovered some emails late in the process and were permitted to introduce them. The emails will be admitted.
15Finally, I find that the following proposed evidence is not responsive to any of the evidence given by the witnesses and will be excluded: page 18, paragraphs 1 to 4.
Request for Order
16The applicant filed a Request for Order seeking sanctions with respect to witnesses that had allegedly perjured themselves during the hearing. In support of the Request, the applicant made submissions about statements made by various witnesses and pointed to evidence and documents to submit that the witnesses had given false testimony. The Request for Order is dismissed. It is not appropriate for me to make final determinations about the evidence in this matter until I have heard all the evidence. If it is necessary for me to determine the reliability of a witnesses’ evidence, I will do so in my final decision.
17The applicant has asked for clarification with respect to the dates for final written submissions. This matter will be clarified at the hearing on October 14, 2010.
Other Matters
18The applicant’s proposed reply evidence (53 Pages) and attachments (subject to the above exclusions) will be made an exhibit to the proceedings. Subject to a few clarifying questions from the Chair, the parties should be prepared to proceed directly to cross-examination.
Dated at Toronto this 30^th^ day of September, 2010.
”signed by”____________
Kaye Joachim
Vice-chair