Chabot v. Conseil scolaire catholique Franco-Nord, 2010 HRTO 914

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sylvie Chabot

Applicant

-and-

Conseil scolaire catholique Franco-Nord and Gisèle Landriault

Respondents

AND B E T W E E N:

Daniel Chabot

Applicant

-and-

Conseil scolaire catholique Franco-Nord and Gisèle Landriault

Respondents

AND B E T W E E N:

Michel Chabot

Applicant

-and-

Conseil scolaire catholique Franco-Nord and Gisèle Landriault

Respondents

INTERIM Decision

Adjudicator: Caroline Rowan

Date: April 27, 2010

Citation: 2010 HRTO 914

Indexed as: Chabot v. Conseil scolaire catholique Franco-Nord

1These Applications were filed on March 31, 2009 pursuant to section 53(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). A hearing in this matter was scheduled for April 23, 2010 in North Bay. The purpose of this Interim Decision is to address the responding parties’ request for an adjournment and to issue case management directions. The parties were notified by the Registrar-Transition on April 21, 2010 that the request for an adjournment was granted for reasons to follow.

Adjournment Request

2By letter dated April 21, 2010, counsel for the responding parties requested that the hearing in these matters scheduled for April 23, 2010 be adjourned in view of the late filing by the applicants of a 53 page expert report, on which the applicants intended to rely at the hearing. The responding parties requested that an adjournment be granted in order to permit them an opportunity to study adequately the expert report, to determine their position with respect to it, including the possibility of requesting that certain portions be struck, and to prepare their cross-examination of the applicants’ proposed expert witness. Counsel for the responding parties also reserved the right to object to the introduction into evidence of the report in whole or in part and/or to call the responding parties’ own expert witness in this proceeding.

3Counsel for the responding parties also indicated to the Tribunal that he had been advised by the applicants’ counsel that morning of the applicants’ intention to rely at the hearing on additional documents which had not yet been disclosed. Counsel for the responding parties noted that he was not in a position to say, given that he had not yet seen these additional documents, whether he would require additional time to prepare for the examination of the witnesses as a result of this unexpected disclosure. He reserved the right to object to the introduction of these documents into evidence and/or not to proceed with the examination and/or cross-examination of the witnesses on April 23, 2010 because of the unexpected disclosure.

4The applicants opposed the adjournment request and, in the alternative, requested that the Tribunal direct the responding parties to reimburse the applicants for the travel costs and fees of Mr. Bouchard, their expert witness, in the event the Tribunal found it necessary to postpone his evidence. In support of the position that the hearing should proceed as scheduled, the applicants’ counsel argued that the Tribunal has the jurisdiction under the Rules applicable to transition applications to manage applications in the most efficient and just manner in all the circumstances. Counsel notes that the name of the applicants’ expert was identified on December 18, 2009 and that the responding parties were aware of the nature of his evidence and the fact that an expert witness is normally required to provide a report or summary of his expertise before the hearing.

5Counsel for the applicants acknowledges that Mr. Bouchard’s proposed evidence and report are lengthy, but suggests that the responding parties could have anticipated the three questions Mr. Bouchard is going to decide and states that his report will serve as a guide to those questions. Counsel argues that it would be unjust to refuse to allow the admission of Mr. Bouchard’s expert report or his evidence. Counsel for the applicants also suggests that counsel for the responding parties could take a break during the hearing or use the lunch break before commencing his cross-examination.

6In the present case, the applicants failed to comply with the Tribunal’s direction to provide the responding parties, and to file with the Tribunal, all of the documents on which they intend to rely by December 18, 2009. Mr. Bouchard’s lengthy expert report was not, in fact, even provided to the responding parties and filed with the Tribunal, within the twenty (20) day period prior to the hearing contemplated under Rule 18.6 of the Tribunal’s Rules of Procedure for Transitional Applications for the delivery and filing of documents on which a party intends to rely. The applicants’ counsel also did not dispute the contention that the applicants intended to rely on additional documents which had not been produced to the responding parties before April 21, 2010, only two days prior to the scheduled hearing in this matter. He also did not dispute that he intended to call Mr. Bouchard as his second witness at the hearing scheduled on April 23, 2010.

7While the Tribunal could simply refuse to permit the applicants to rely on any documents not disclosed to the responding parties in a timely way, the Tribunal instead finds it appropriate to grant the responding parties’ request for an adjournment of the hearing scheduled on April 23, 2010 in order to permit the responding parties an adequate opportunity to review the additional disclosure and to prepare for the hearing. Given the applicants’ intention to lead evidence from Mr. Bouchard as their second witness and their intention to rely on additional documents not yet disclosed to the responding parties in the course of the evidence of their other witnesses, it seems likely that little progress could be made at the hearing scheduled in North Bay on April 23, 2010 before an adjournment was required. Mr. Bouchard’s evidence could not, in any event, be completed that day without affording the responding parties an adequate opportunity to review the lengthy report prior to its introduction into evidence.

8The Tribunal does not further find it appropriate to direct the responding parties to reimburse the applicants for Mr. Bouchard’s fees and travel costs, given that the adjournment of the hearing was occasioned by the applicants’ own failure to comply with the Tribunal’s directions and Rules of Procedure relating to the disclosure of documents.

Case Management

9The hearing in this matter will be rescheduled to an alternate date, at which time the Tribunal will consider first the merits of the applicants’ complaint. Since there is a significant dispute between the parties concerning the extent of damages claimed by the applicants in the event that liability is found, the Tribunal considers it appropriate to bifurcate the hearing and to entertain evidence and argument on the issue of damages, only if necessary, following a determination of the merits of the applications.

10In order to ensure that these Applications are heard as expeditiously as possible and without further delay, the Tribunal directs the parties as follows:

1. The parties are directed to serve immediately on the other parties, and to file with the Tribunal, any documents on which they intend to rely which have not yet been produced to the other parties or filed with the Tribunal;

2. The applicants are directed to serve on the responding parties, and to file with the Tribunal, by no later than May 21, 2010, detailed will say statements for each of the applicants, which the applicants are prepared to adopt as their evidence in chief at the hearing into the merits of these applications;

3. The responding parties are directed to serve on the other parties, and to file with the Tribunal, by no later than May 28, 2010, detailed will say statements for Gisèle Landriault, Greg Lefebvre and Daniel Dubé, which they are prepared to adopt as their evidence in chief at the hearing into the merits of these applications;

4. If after reviewing the report of Mr. Bouchard, the responding parties decide to call their own expert witness in this proceeding, they are directed to advise the applicants and the Tribunal of the name of that anticipated witness and a summary of his or her anticipated evidence, by no later than May 28, 2010, and to serve on the applicants, and to file with the Tribunal, a copy of any expert report on which they intend to rely, by no later than May 28, 2010.

11The Registrar-Transition will contact the parties to schedule a new date sometime after June 25, 2010 for the hearing into the merits of these Applications.

12I am not seized.