HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.B.
Applicant
-and-
Toronto District School Board
Respondent
A N D B E T W E E N:
C.F.
Applicant
-and-
Toronto District School Board
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed As: J.B. v. Toronto District School Board
Introduction
1These Applications were filed May 1, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with further interlocutory issues raised by the respondent.
2The issues arise out of the evidence of S.P., who appeared at the hearing under summons served on her by the applicants. Pursuant to the summons, the witness produced notes that she later testified she had created contemporaneous to some of the events giving rise to these Applications. The respondent takes issue with the late production of these notes.
3During the course of her cross-examination, S.P. also testified that she had engaged in email communication in relation to these events but stated that these emails were no longer available to her. The respondent believes that her emails can be retrieved. The respondent takes issue with what it characterized as the withholding of these emails.
4By way of further background the respondent had sought to have the summons to S.P. quashed on the basis that as a Trustee of the respondent she could not give evidence against the interests of the respondent. That Request was rejected in 2011 HRTO 1162, issued on June 15, 2011. The witness apparently provided counsel for the applicants with copies of her notes after the release of my decision. The applicants advised the respondent of the existence of further documents related to the witness' evidence on June 25, 2011. On the day of hearing on June 28, 2011, a package of six pages of notes was provided to the respondent. For whatever reason the version of the notes provided to counsel for the respondent was missing a page. This error was not immediately apparent. The respondent was given an opportunity to review the notes before the witness completed her evidence. The issue of whether or not the notes should be entered as an exhibit was raised. At that time, the respondent objected. The respondent reserved the right to make further submissions with respect to the consequences of what it characterized as the withholding and/or late production of a number of documents.
5The respondent seeks the following:
The documents produced by the Applicants' witness S.P. on June 28, 2011, be entered as exhibits;
The Applicants J.B. and C.F. be recalled for the purpose of cross-examination by the Respondent based on the documents referred to in paragraph 1 above; and
The witness S.P. be ordered to produce all emails in her possession or in the possession of the Toronto District School Board relating to the Applicants during the period December 1, 2005, until December 11, 2005, and that in the event that new documents are produced pursuant to such order, S.P. be recalled for cross-examination on the same.
6The applicants resist all of the respondent's requests. The witness objects to being recalled and asked to make submissions on the point. In light of my conclusions on these issues, there was no reason to entertain the witness's submissions.
The Admissibility of the Notes
7As indicated, the notes were produced at or just prior to the hearing. The respondent objected to their introduction and the applicants did not seek their introduction as an exhibit. The witness utilized them as an aide-memoir. The witness was examined and cross-examined.
8I do not agree with the respondent that there has been a failure on the part of the applicants to produce all of the arguably relevant documents in their possession and control. The documents in question, S.P.'s notes, were hers. There is no indication that they had ever been made available to the applicant. I agree with the applicant that the respondent had access to the witness in exactly the same way as the applicant had. There was no reason why the respondent could not have made enquires either before or after she was instructed to retain counsel.
9The respondent now wishes to have the notes marked as an exhibit. I find that it would be appropriate to mark the notes as an exhibit in all of the circumstances. The applicant objects primarily on the basis that much of what is contained therein is hearsay. In particular, the applicant says the notes of an interview with K.B. are hearsay.
10I accept the applicant's submission that much of what is contained in the notes is hearsay and cannot be admitted for the truth of what is contained in them. On the other hand, the notes contain a reference to the fact that the principal was told by the police not to call the applicants' parents. The witness was asked whether anyone had told her this. The witness responded that this was not said to her and such an instruction would not be Education Board protocol. The note suggests, whether true or not, that this information was relayed to the witness. I find that the notes should be admitted as an exhibit subject to argument about the weight to be given to anything contained in them.
Further production and recall of S.P.
11The respondents seek an order requiring that the witness S.P. allow the respondent to attempt to retrieve any emails she may have sent to other Board officials with respect to these matters. Further, if there are any such emails, the respondent seeks leave to recall the witness S.P. to be cross-examined on them.
12As indicated the witness was asked if she had sent any emails and stated that she likely had. She also stated, when asked, that she no longer had access to them.
13I am not persuaded that it would be fair, just and expeditious to make this order. As I have indicated on several occasions, the evidence of the witness is largely tangential to the central issues in this case. I also accept the applicant's point that if there was email communication with Board officials with respect to this matter, the respondent already has them or could have retrieved them by other means. There seems to me little practical point in hearing further from the witness.
Recalling the applicants
14The respondent says that if it had been aware of these notes, it would have put questions to the applicants about things that are contained in them, in particular the description of the incident apparently given by K.B. and recorded by S.P.
15While I accept the applicants' general point that there has been no failure on their part to produce documents, in the somewhat unusual circumstances of this case the late production of S.P.'s notes has created a practical problem. I accept the respondent's contention that there is information in the notes that it would have put to the applicants had they been aware of it at the time the applicants gave their evidence.
16The applicants object on the basis that the respondent seeks to cross-examine the applicants on the basis of a hearsay statement or statements. This is true but it does not make it an improper question. If a question had been asked of the applicants based on information the respondent gleaned from the note it would likely have been a proper question. The respondent of course would have to accept the answers given unless it was able to challenge their response with admissible non-hearsay evidence, but such questions would not be improper.
17This is an unfortunate circumstance but I find that it is necessary to ensure a fair and just adjudication of this case that if the respondent wishes to have the applicants re-called for this purpose, it is entitled to do so.
18As a practical matter that may not be possible to accomplish for some period of time. The question becomes whether this could or should happen before or after the respondent leads its evidence. The applicants have suggested that this might occur after the respondent has lead its case. The respondent has not responded to this suggestion. If the respondent is prepared to lead its evidence on the next scheduled day of evidence, the hearing will continue on the next scheduled day.
19If it is not then the respondent should provide its submissions in support of its position as well as its proposal for next steps before the end of business Friday, July 8, 2011. The applicant may reply by the end of the day Monday, July 11.
20I am seized of these Applications.
Dated at Toronto, this 7th day of July, 2011.
"Signed by"
David Muir
Vice-chair