Xysha McFarlane v. Darrell S. Waisberg and Associates and Darrell Waisberg, 2010 HRTO 572

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Xysha McFarlane

Applicant

-and-

Darrell S. Waisberg and Associates and Darrell Waisberg

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: March 16, 2010

Citation: 2010 HRTO 572

Indexed as: McFarlane v. Darrell S. Waisberg and Associates

1A hearing in this matter commenced on February 8 and 9, 2010. It was not concluded and at least two further days will be scheduled to complete the hearing.

2This Interim Decision concerns a request by the applicant that she be permitted to introduce a Statutory Declaration from Eslita Ramkishan into evidence. She indicated that Ms. Ramkishan might be available as a witness but that she preferred to participate by telephone.

3The respondents argued that I should not accept the Statutory Declaration or hear any evidence from Ms. Ramkishan. The respondents asked for time to make written submissions and I agreed to this request. The respondents provided written submissions and the applicant has provided a response to those submissions.

4The respondents point out that the Statutory Declaration was not provided until the day of the hearing and that the applicant did not identify Ms. Ramkishan as a potential witness in advance of the hearing as required by the Tribunal’s Rules of Procedure.

5The applicant submits that she did not provide advance notice because she was experiencing difficulties in ascertaining whether Ms. Ramkishan was prepared to attend as a witness. The applicant had submitted a Request for Order During Proceedings asking, among other things, for an extension of time to allow her to provide her evidence. This was not dealt with at the time and she says she was accordingly unsure about what was required.

6The respondents submit that no evidence from Ms. Ramkishan should be admitted because she has a “conflict of interest”. This arises from the fact that Ms. Ramkishan is employed as a law clerk by a lawyer who shared office space with the respondents until October 2009. The relationship ended badly and there is now litigation that is either pending or underway. The personal respondent says that he consulted the other lawyer when the applicant filed the Application with the Tribunal and suggests that there was accordingly a solicitor-client relationship. The respondents suggest that this extends to Ms. Ramkishan.

7After reviewing the submissions of the parties, I determined that it was necessary to see the Statutory Declaration in order to decide whether it should be admitted into evidence. I issued a Case Assessment Direction directing the applicant to forward a copy to the Tribunal. I have now reviewed the document.

8In an email dated February 22, 2010, the personal respondent asked for a further opportunity “to make submissions on the legal issue of the review of the Statutory Declaration, prior to the determination of its admissibility.”

9In regard to this last request, I am satisfied that no further submissions are necessary. The respondents have already made full submissions on the issue of the admissibility of the Statutory Declaration.

10On February 25, 2010, the applicant forwarded a letter from a law firm which she would like admitted into evidence. The respondents object to this document.

11I have determined that the Statutory Declaration will be admitted provided that the applicant makes Ms. Ramkishan available for questioning and cross examination. In these circumstances, the Statutory Declaration is taken essentially as a “will say” statement respecting Ms. Ramkishan’s testimony. If the witness is not available, the Statutory Declaration will not be admitted into evidence.

12I accept the applicant’s explanation for why the witness was not identified in advance and note that she had filed a Request for Order During Proceedings with respect to difficulties she was experiencing in preparing her evidence.

13I appreciate that the respondents are currently in a dispute with Ms. Ramkishan’s employer. I am not satisfied that this means that she is in a conflict of interest such that she cannot testify with regard to her personal knowledge of matters relevant to the Application. Based on the information in the Statutory Declaration, there does not seem to be any reason to believe that the witness will provide any evidence that might invoke solicitor client privilege.

14I am satisfied that the concerns of the respondents can be addressed through cross-examination and submissions concerning the weight to be given to the evidence.

15The letter from the law firm that the applicant forwarded on February 25, 2010 will not be admitted into evidence. In my view, it is marginally relevant to the issues in dispute and I agree with the respondents that this document could have been obtained earlier.

16I anticipate that there will be no further attempts to introduce any additional documents by either party. The parties may not forward any other evidence to the Tribunal in advance of the rescheduled hearing date. The parties may exchange any documents between themselves. If necessary, I will hear submissions as to why any additional documents should be admitted on the next day of hearing.