John Fleming v. The Corporation of the City of North Bay, 2011 HRTO 140

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Fleming

Applicant

-and-

The Corporation of the City of North Bay

Respondent

RECONSIDERATION DECISION

Adjudicator: Ken Bhattacharjee

Date: January 20, 2011

Citation: 2011 HRTO 140

Indexed as: Fleming v. North Bay (City)

WRITTEN SUBMISSIONS BY

John Fleming, Applicant ) M. Kate Stephenson, Counsel

The Corporation of the ) Peigi Ross, Counsel

City of North Bay, Respondent )

INTRODUCTION

1The purpose of this Decision is to address the applicant’s Request for Reconsideration of the Tribunal’s Decision, 2010 HRTO 355, which dismissed the Application.

2The Request focuses on two aspects of the Decision: the Tribunal’s refusal to grant the applicant’s late request to call an expert witness, and the Tribunal’s finding that one of the reasons he did not prove his case was because his evidence lacked details.

BACKGROUND

3The applicant, who was a firefighter with the respondent municipality, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 27, 2008, which alleged that the respondent discriminated against him with respect to employment because of his disability. Specifically, the applicant alleged that the respondent suspended him and then terminated his employment because of off-duty criminal misconduct that was related to his addiction to alcohol.

4The respondent filed a Response to the Application on October 9, 2008, which denied the allegations of discrimination. The respondent admitted that it suspended the applicant and then terminated his employment because of his off-duty criminal acts and an act of violence on municipal property, but denied that it had any knowledge that the applicant was addicted to alcohol or that there was a nexus between the alleged disability and the misconduct.

5The respondent had suspended the applicant and subsequently terminated his employment because of off-duty criminal misconduct, specifically, eight criminal convictions between 1992 and 2007, including several involving threats or acts of violence against women, and because of an incident at a municipal arena in 1996 when he allegedly threw his stick over the glass during a hockey game and narrowly missed hitting a staff person in the head.

6After the respondent terminated the applicant’s employment, the Ontario Court of Justice sentenced the applicant to nine months detention and 18 months probation for the 2007 convictions for criminal harassment and assault of his ex-girlfriend. The Court did not attribute any of his criminal misconduct to an addiction to alcohol.

7The Court’s probation order required the applicant, among other things, not to communicate with his ex-girlfriend, her children and three other women because of his “compulsive behaviour”, and to remain away from his ex-girlfriend’s place of work or education.

8The North Bay Professional Fire Fighters Association (the “union”) filed a grievance on the applicant’s behalf that raised the same issues as in this Application. The union withdrew the grievance after it received a legal opinion that the grievance was unlikely to succeed at arbitration and settlement discussions were unsuccessful. The applicant then filed his Application with this Tribunal.

9On March 3, 2009, the Tribunal issued a Confirmation of Hearing to the parties, which informed them that the hearing was scheduled for June 1, 2 and 3, 2009.

10The Notice also set out the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses. Rule 16 requires each party to deliver to every other party and file with the Tribunal a list and copy of all documents that it intends to rely on no later than 45 days prior to the first scheduled day of hearing. Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list and brief statement summarizing the expected evidence of each witness, including expert witnesses, no later than 45 days prior to the first scheduled day of hearing. Rule 17 also provides that a copy of an expert witness’s written report or full summary of proposed evidence, and curriculum vitae, must accompany the witness list.

11Both parties delivered and filed documents and a witness list prior to the hearing. The respondent’s witness list included an expert witness, but the applicant’s did not.

12The hearing took place as scheduled on June 1, 2 and 3, 2009. The Tribunal heard the evidence of five witnesses, including two called by the applicant (including himself) and three called by the respondent. One of the respondent’s witnesses was a medical doctor and forensic psychiatrist, whom the Tribunal certified as an expert on addiction, mental health, and matters related to criminal psychiatry. During his opening statement, the applicant requested for the first time that he be allowed to call his own doctor as an expert witness. The Tribunal denied his request.

13On February 17, 2010, the Tribunal issued its Decision dismissing the Application.

14On March 19, 2010, the applicant filed a Request for Reconsideration of the Decision. On April 21, the respondent filed a Response, and on April 29, the applicant filed a Reply. All the submissions were filed by the parties’ counsel. The applicant’s counsel, Kate Stephenson, identified herself as the Director of Legal Services at the Human Rights Legal Support Centre (“HRLSC”).

DECISION UNDER RECONSIDERATION

15The Tribunal’s reasons for denying the applicant’s late request to call his doctor as an expert witness were set out in paras. 10-15 of its Decision:

Rules 16 and 17 of the Tribunal’s Rules of Procedure require the parties to deliver to each other and file with the Tribunal copies of all the documents that they intend to rely upon at the hearing, as well as a witness list with a brief statement summarizing the expected evidence of each witness. In the case at hand, the deadline for delivery and filing was April 17, 2009.

As part of his disclosure of documents, the applicant included a report from his doctor that stated that there is a direct relationship between his addiction to alcohol and his criminal misconduct. However, he did not include his doctor on his witness list. The respondent, on the other hand, disclosed a witness list that included Dr. Klassen. The respondent’s witness statement identified him as an expert witness who would testify, among other things, that there is no nexus between the applicant’s alleged addiction to alcohol and his criminal misconduct.

During his opening statement, the applicant requested, for the first time, that the Tribunal allow him to call his doctor as an expert witness to testify by teleconference about the nexus between his addiction to alcohol and his criminal misconduct. He stated that if his doctor’s report was going to be challenged by the respondent, his doctor had a right to respond. He also stated that he had not included the doctor on his witness list because he could not afford to pay him to attend the hearing in person. The applicant did not provide any explanation as to why he waited until the hearing had already started to request that his doctor be allowed to testify by teleconference. He also admitted that he had not confirmed with his doctor whether he would be available to testify by teleconference.

The respondent opposed the applicant’s request on the basis that it would suffer substantial prejudice if the applicant was allowed to call an expert witness with little advance notice. The respondent’s counsel submitted that the applicant’s request failed to comply with the Tribunal’s Rule on disclosure of witnesses, and that he had no excuse for making such a late request because he had known since April 17, 2009 that the respondent would be calling Dr. Klassen as an expert witness to challenge his allegations.

Rule 5.7 of the Tribunal’s Rules provides that where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in accordance with the Tribunal’s Rules on disclosure of documents and witnesses, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings.

I am mindful of the fact that the applicant is unrepresented and recognize the importance of expert witnesses in cases, such as this one, which involve the issue of an alleged addiction and its nexus to criminal misconduct. However, I denied the applicant’s request because he did not comply with the Tribunal’s Rules, he failed to provide a credible explanation why he had not made his request earlier, and when he made his request he had not even confirmed with his doctor that he would be available to testify by teleconference. In all the circumstances, the applicant did not satisfy me that there would be no substantial prejudice to the respondent and no undue delay to the proceeding if I granted his request.

16The Tribunal’s reasoning for dismissing the Application on its merits was set out in paras. 68-81:

In a case such as this one that involves addiction to alcohol, discipline and termination of employment, the main issues that I am required to determine are whether the applicant has established that the respondent suspended him and then terminated his employment because of misconduct that was causally related to his addiction to alcohol, and if so, whether the respondent has established that it accommodated the applicant’s needs related to his addiction up to the point of undue hardship: see British Columbia (Public Service Agency) v. British Columbia Government and Service Employees Union, 2008 BCCA 357; Ryan v. Canada Safeway and Ramponi (No. 2), 2008 BCHRT 12; Health Employers Assn. of B.C. (Kootenay Boundary Regional Hospital) v. B.C. Nurses' Union, 2006 BCCA 57; Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115, 2006 BCCA 58.

The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. For the reasons that follow, I have decided that the applicant has not proven that the respondent suspended him and then terminated his employment because of his disability.

The parties agree that the applicant had an addiction to alcohol, but there was a dispute as to whether he had alcohol abuse disorder or alcohol dependence disorder. The latter is more debilitating. I find that the applicant had alcohol abuse disorder. The burden is on the applicant to prove that he had the more debilitating disorder and he failed to do so.

To prove that he had alcohol dependence disorder, the applicant submitted a physician’s report that diagnosed him as having the DSM criteria for alcohol dependency disorder, and a discharge sheet that showed that he had successfully completed an inpatient chemical dependency program at an addiction treatment and rehabilitation facility. The difficulty that I have with the report and the discharge sheet is that neither specifically explains how the applicant’s symptoms met the DSM criteria for alcohol dependency disorder.

Furthermore, although the respondent’s expert witness, Dr. Klassen, never examined, assessed or treated the applicant, I accept his expert opinion that the fact that the applicant was a binge drinker on weekends and days off is inconsistent with the DSM criteria for alcohol dependence, and that the applicant’s symptoms appear to be more consistent with the DSM criteria for alcohol abuse disorder. I also agree with Dr. Klassen that there is a lack of evidence of physical or psychological dependence on alcohol in the medical reports that the applicant submitted to the Tribunal.

The next issue to consider is whether the respondent suspended the applicant and terminated his employment because of his addiction to alcohol. In cases involving an addiction, misconduct, and discipline and/or termination of employment because of the misconduct, it is well-established that in order to make out a case of discrimination the employee must prove that there was a causal relationship between the misconduct and the addiction or disability. In Health Employers Assn. of B.C. (Kootenay Boundary Regional Hospital), supra, the British Columbia Court of Appeal stated at para. 41:

It is important not to assume that addiction is always a causal factor in an addicted employee’s misconduct….. To find prima facie discrimination, there must be evidence that the employee’s misconduct was “caused by symptoms related to” the disability….

There was a dispute between the parties as to when the respondent knew or ought to have known that the applicant had an addiction or a possible addiction to alcohol, and when the termination of employment took effect. In my view, the timing is not important because I find that the applicant did not prove that there was a causal relationship between his addiction to alcohol and the misconduct for which he was suspended and ultimately fired.

The respondent suspended the applicant and subsequently terminated his employment because of off-duty criminal misconduct, specifically, eight criminal convictions between 1992 and 2007, including several involving threats or acts of violence against women, and because of an incident at a municipal arena in 1996 when he allegedly threw his stick over the glass during a hockey game and narrowly missed hitting a staff person in the head.

To prove that there was a nexus between his addiction to alcohol and his criminal misconduct, the applicant submitted a medical report that opined that his charges and convictions for criminal harassment and assault in 2007 were directly related to his addiction to alcohol. The difficulty that I have with the applicant’s evidence is its lack of detail and vagueness.

In his oral testimony, aside from a brief reference to being intoxicated when he went to the home of his ex-wife in 2004, the applicant provided very few details about the facts leading to his criminal convictions, including whether or how he was impaired by his addiction to alcohol when he committed the criminal acts.

Furthermore, the applicant did not present any medical evidence addressing the causal relationship between his addiction to alcohol and his pre-2007 criminal acts, and the medical report that addresses the 2007 criminal acts makes a bald statement about the causal relationship, but does not specifically explain how his criminal misconduct was causally related to his addiction to alcohol.

I also find it telling that in its Reason for Sentence in October 2007, the criminal court found that the applicant had a high degree of responsibility for his conduct, and did not attribute any of his criminal misconduct to an addiction to alcohol.

Finally, I accept Dr. Klassen’s expert opinion, based on his review of medical/treatment reports, notes from counselling sessions, the Pre-Sentence Report, and the criminal court’s Reason for Sentence, that the applicant’s criminal behaviour was most likely related to his personality and values, particularly his values about male/female relations, rather than an addiction to alcohol.

In view of my finding that the applicant has not proven that the respondent suspended him and terminated his employment because of misconduct that was causally related to his addiction to alcohol, it is not necessary to decide whether the respondent has proven that it accommodated the applicant’s needs related to his addiction to alcohol up to the point of undue hardship.

RELEVANT LAW, RULE AND PRACTICE DIRECTION ON RECONSIDERATION

17Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules.

18Rule 26.5 of the Tribunal’s Rules of Procedure states that reconsideration will not be granted unless the Tribunal is satisfied that:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

19The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states, in part:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal.

REQUEST FOR RECONSIDERATION

20In the Request for Reconsideration, the applicant’s counsel submitted that the Tribunal’s Decision should be reconsidered in accordance with Rule 26.5 (c) and (d).

21Specifically, she submitted that the applicant, who is a layperson and was not represented by legal counsel at the time, was not afforded a fair opportunity to present his case in two respects.

22First, the Tribunal used an inappropriate test for exclusion of expert medical evidence, and then, having improperly excluded that evidence, dismissed the Application precisely because that evidence was missing.

23Second, the Tribunal failed to ask questions about certain factual details and then used the absence of these details to discount and ultimately reject the applicant’s arguments.

24She further submitted that the nature of the Tribunal’s errors and the extent of unfairness in the case are matters of public importance that outweigh the need for finality in decision-making.

25As a remedy, the applicant’s counsel requested a new hearing before a different adjudicator.

26In the Response to the Request, the respondent’s counsel submitted that the Tribunal’s Decision should not be reconsidered.

27Specifically, she submitted that the applicant did, in fact, receive legal advice prior to and during the hearing, that the Tribunal’s refusal to grant the applicant’s late request to call an expert witness was fair and reasonable, and that it is not the role of the Tribunal to assist any party in making its case by actively seeking to adduce evidence through questions.

28She submitted that the applicant is bound by the case that he presented, and that reconsideration is not an opportunity to appeal the Decision or to repair deficiencies in the presentation of his case.

29She further submitted that the Decision is not inconsistent with the Tribunal’s case law, and there are no compelling and extraordinary circumstances which outweigh the public interest in the finality of orders and decisions.

30I will address the following issues in this Reconsideration Decision:

(1) Did the applicant receive legal advice prior to and during the hearing?

(2) Should the Tribunal’s decision to deny the applicant’s late request to call his doctor as an expert witness be reconsidered pursuant to Rule 26.5(c) and (d) of the Tribunal’s Rules?

(3) Should the Tribunal’s finding that one of the reasons that the applicant did not prove his case was because his evidence lacked details be reconsidered pursuant to Rule 26.5(c) and (d) of the Tribunal’s Rules?

ANALYSIS AND DECISION

Did the applicant receive legal advice prior to and during the hearing?

31The first issue to be addressed is whether the applicant received legal advice prior to and during the hearing. It is undisputed that the applicant was not represented by counsel at the hearing, but there is now a sharp disagreement between the applicant’s post-hearing retained counsel and the respondent’s counsel on whether the applicant received legal advice prior to and during the hearing.

32In her submissions, the applicant’s counsel identified the applicant as an unrepresented party, and strongly suggested that he did not have legal advice either prior to or during the hearing. She began by setting out the general principles that courts and tribunals should follow when dealing with an unrepresented party:

Lawyers play a crucial role in ensuring that the requirements of fairness are provided to the parties. They assist their clients in identifying what evidence is relevant and important, how credibility may be assessed, and how inferences may be drawn from the presence, or absence, of particular evidence. In other words, they help parties put their ‘complete’ case forward. A corollary of this is the parties without a lawyer may have difficulty knowing what is necessary to present a complete case.

(…)

Moreover it is crucial for the Tribunal to recognize that timeliness and rules may be more likely to work to the detriment of unrepresented parties, who are less likely to know or understand their consequences. [Emphasis added]

33The applicant’s counsel then went on to describe the applicant as such a party:

[T]he Applicant submits that the Tribunal should have recognized the position he was in as an unrepresented person. He is not a lawyer and was not familiar with the Tribunal’s Rules or their strict implications…. Lawyers might be required to have “good” explanations, but the confusion and misunderstandings of lay people should not be used against them.

(…)

[T]he Tribunal did not ask any questions to elicit details that were said to be missing, and thus gave no notice to the Applicant that such details were required in order to make out his case. Had the Applicant been aware that such details were important – or that the absence of such details might be used against him – he would have provided them. [Emphasis added]

34In her submissions, the respondent’s counsel stated that, although the applicant was unrepresented at the hearing, he stated at the outset of the hearing that he had received legal advice from the HRLSC prior to the hearing. The respondent’s counsel further stated when the respondent brought a non-suit motion, the Tribunal provided the applicant with a brief adjournment to consult further with the HRLSC.

35In her Reply submissions, the applicant’s counsel did not address the respondent’s counsel’s submissions on this issue.

36I agree with the respondent’s counsel’s submissions. The applicant stated at the outset of the hearing that he had received legal advice from the HRLSC prior to the hearing, and when the respondent brought a non-suit motion, the Tribunal provided the applicant with an adjournment to consult further with the HRLSC.

37In addition, at the outset of the hearing, the applicant disclosed some of his written notes to the Tribunal, which state in one section:

Conclusion – will be in memo sent by Kate to me.

-outline of points I need to establish. [Emphasis added]

38Furthermore, after the Tribunal provided the applicant with an adjournment to consult with the HRLSC before hearing oral submissions on the respondent’s non-suit motion, the applicant returned and submitted to the Tribunal one leading case on addiction and discrimination, Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115, 2006 BCCA 58, and two other cases on disability and discrimination: Toronto Police Service v. Kelly, 2006 CanLII 14403 (ON S.C.D.C.) and Hamilton (Hamilton Street Railway) v. Amalgamated Transit Union, Local 107, 2006 CanLII 34332 (ON L.A.). He then proceeded to provide submissions on these cases, which were fairly sophisticated.

39It is not clear if the “Kate” who was sending the applicant a memo prior to the hearing is the Kate Stephenson, who is now suggesting that the applicant had no legal advice prior to the hearing, but if they are the same person, that would be troubling, given Ms. Stephenson’s submissions.

40I am also concerned about the fact that, although the respondent’s counsel pointed out in her Response submissions that there was evidence that the HRLSC provided the applicant with legal advice prior to and during the hearing, instead of clarifying or correcting her submissions and the facts of this matter, the applicant’s counsel remained silent in her Reply submissions.

41At any rate, it is clear that the applicant had access to legal advice prior to, and possibly during, the hearing from the office that is now representing him in his Request for Reconsideration.

Should the Tribunal’s decision to deny the applicant’s late request to call his doctor as an expert witness be reconsidered pursuant to Rule 26.5(c) and (d) of the Tribunal’s Rules?

42In her submissions, the applicant’s counsel stated that the Tribunal’s decision to deny the applicant’s late request to call his doctor as an expert witness should be reconsidered for two reasons.

43First, the Tribunal used an inappropriate test for exclusion of expert medical evidence, and then, having improperly excluded that evidence, dismissed the Application because precisely because that evidence was missing.

44Second, the nature of the Tribunal’s errors and the extent of unfairness are matters of public importance that outweigh the need for finality in decision-making.

45Specifically, she stated that the Tribunal incorrectly put the onus on the applicant to disprove “substantial prejudice” to the respondent and “undue delay” in the proceeding. She stated that there should not be a presumption of prejudice or undue delay, to be disproven by the applicant, and that highly relevant evidence should generally be allowed unless there is demonstrated prejudice that is substantial or the resulting delay is so lengthy that incurring it would itself be contrary to the objects of the Code.

46She stated that the balancing exercise that the Tribunal engaged in was inherently flawed because it relied upon presumptions rather than considering whether there was actually any significant prejudice or delay. She stated that actual prejudice is the standard applied by the Tribunal in all of its jurisprudence concerning delay, including issues such as late amendment of pleadings: Boldt-Macpherson v. The Hoita Kokoro Centre, 2008 HRTO 16; late admission of documents: Pieters v. Liquor Control Board of Ontario, Store 568, 2007 HRTO 22; and delay in proceeding with a hearing: Chan v. Ontario Power Generation, 2000 CanLII 20860 (ON H.R.T.).

47She also stated that a consideration of the facts would have revealed that there was no prejudice to the respondent’s ability to respond to the allegations against it, and the delay would not have been extensive, particularly in light of the lengthy history of the case.

48She also stated that the Tribunal may have fallen into error because it applied Rule 5.7, rather than Rule 17.4, of the Tribunal’s Rules.

49Rule 17.4 provides that no party may present an expert witness if the expert’s written report or full summary of proposed evidence, and curriculum vitae, have not been delivered to every other party and filed with the Tribunal at least 45 days prior to the first scheduled day of hearing, except with the permission of the Tribunal. She stated that Rule 17.4 is the applicable Rule.

50Rule 5.7 provides that where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in accordance with the Tribunal’s Rules on disclosure of documents and witnesses, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings. She stated that Rule 5.7 is not the applicable Rule because it only applies where a fact or issue has not been raised before in any pleadings or documents. She stated that, in the case at hand, the nexus issue, and the opinion of the witness in question, were already before the Tribunal.

51Finally, the applicant’s counsel stated that, in addition to applying the wrong test, the Tribunal failed to recognize that the applicant was an unrepresented person, who is not a lawyer and was not familiar with the Tribunal’s Rules or their strict implications. In particular, the Tribunal ignored this fact when it found that the applicant did not have a “good explanation” for making his request to call an expert witness at the last minute. She stated that lawyers might be required to have “good” explanations, but the confusion and misunderstandings of lay people should be used against them.

52In her submissions, the respondent’s counsel stated that the Tribunal’s decision to deny the applicant’s late request to call his doctor as an expert witness should not be reconsidered because the Tribunal’s denial was fair and reasonable, was not inconsistent with the Tribunal’s case law, and there are no compelling and extraordinary circumstances which outweigh the public interest in the finality of orders and decisions.

53Specifically, she stated that the Tribunal’s decision was consistent with Rules 17.4 and 5.7 of the Tribunal’s Rules. She stated that the onus properly rests on the party, in this case the applicant, who seeks waiver of the Rules, and that the Tribunal’s decision to exclude the expert witness was in keeping with the exercise of discretion permitted by the Rules for the following reasons:

(a) The legal issues in dispute, including the issue of whether there was a nexus between the applicant’s alleged disability and the criminal conduct giving rise to the termination of his employment, were clearly identified in the Response to the Application. The applicant acknowledged the importance of the nexus issue in his Reply to the Response.

(b) The applicant should have known and understood the test that he had to meet, and the fact that he disclosed and filed a doctor’s report well in advance of hearing that provided an opinion, albeit vaguely, on the nexus issue demonstrated that he did, in fact, understand the test that he had to meet.

(c) The respondent disclosed and filed the witness statement and curriculum vitae of its expert witness 45 days prior to the hearing, so the applicant was aware well in advance of the hearing of the respondent’s intent to call an expert witness on the nexus issue.

(d) At the hearing, the applicant asserted that he had not included the doctor as an expert witness on his witness list because he could not afford to pay him to attend.

(e) At the hearing, the applicant had not made arrangements for the attendance of the expert witness by teleconference, nor was he able to advise the Tribunal if the witness was available to testify during the scheduled hearing dates or when the witness would be available to attend.

(f) In his oral submissions, the applicant specifically mentioned that he had been speaking with the HRLSC, and that he was aware of or could have anticipated the need for the expert witness. In its oral ruling, the Tribunal took specific note of the fact that the applicant had sought legal advice with respect to this matter.

(g) The Tribunal noted the respondent’s objection to the calling of the doctor and the assertion that the respondent would suffer “substantial prejudice” if the applicant was allowed to call an expert witness with little advance notice. The respondent also asserted that their expert would not have had the opportunity to review the doctor’s evidence, that the applicant had not provided his full medical file for review in advance of such testimony, and, further, that the respondent had made arrangements for all of its witnesses to attend.

(h) The Tribunal noted that the applicant did not discharge his onus. He did not offer any credible explanation why he had not made his request earlier. In fact, he had not even confirmed with his doctor that he was available to testify by teleconference. He also failed to demonstrate that there would be no substantial prejudice to the respondent and no undue delay in the proceedings.

54The respondent’s counsel also stated that, even if the Tribunal was incorrect in applying Rule 5.7, the correct result was obtained. She stated that the Tribunal has the authority to relieve against non-compliance with its Rules, and such authority is to be exercised as the Tribunal considers appropriate in accordance with Rule 1.1, which states:

These Rules apply to all proceedings before the Tribunal under Part IV of the Code and will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.

55She stated that the correct test for the exercise of discretion in this case is whether the waiver of the obligations set out in Rule 17 would facilitate the “fair, just and expeditious resolution of the matters before it.” She stated that the obligation to ensure the fair, just and expeditious resolution of matters applies in respect of the applicant’s right to a fair hearing, and the respondent’s right to ensure that the matter is appropriately and expeditiously prosecuted.

56She stated that the Tribunal’s duty to be accessible and dispose of applications fairly, justly and expeditiously is not only in relation to applicants, but also in relation to respondents and the expenditure of public resources. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated at paras. 4-7:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

57The respondent’s counsel stated that the Tribunal’s decision to deny the applicant’s late request to call his doctor as an expert witness properly reflects the above principles.

58She further stated the Tribunal’s Decision is not in conflict with established jurisprudence or Tribunal procedure. She stated that, in considering what was intended by “conflict” as per Rule 26.5(c), the Tribunal has held that there must be a conflict with “established” jurisprudence or procedure in the sense that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those rules: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 at para. 54.

59She stated that, in the case at hand, the applicant has not satisfied the first branch of the test under Rule 26.5(c) because he has not shown the Tribunal’s decision to deny the applicant’s late request to call his doctor as an expert witness is in conflict with “established” case law. Specifically, none of the cases that the applicant cited (Boldt-Macpherson, Pieters and Chan, supra) dealt with the same issue as in the case at hand. Furthermore, the applicant has not demonstrated that there is a settled understanding about the legal rules that apply, and he has not shown that the Tribunal’s decision was a clear and surprising departure from those rules.

60In her Reply submissions, the applicant’s counsel stated that the applicant agrees with the respondent that the test for reconsideration based on conflict with established jurisprudence is a departure from “a settled understanding about the legal rules that apply and a clear and surprising departure from those rules.” She stated that the Tribunal, in fact, departed substantially from its usual approach to the exercise of discretion where a strict application of the rules could result in the Tribunal being deprived of relevant evidence.

61Specifically, she stated that the Tribunal failed to follow the usual approach that was set out in Odell v. Toronto Transit Commission, 2001 CanLII 26210 (ON H.R.T.), where four factors were set out that must be weighed against one another: (1) actual prejudice, (2) fairness, (3) the conduct of the party seeking to be relieved from the consequences of the rule in question, and (4) the impact of the proposed action (e.g. an adjournment to enable evidence to be called) on the course of the hearing and other parties.

62She stated that the usual approach makes no presumption against allowing evidence to be allowed, and does not place the onus on any party to disprove any of the factors that are up for consideration. She stated that this is how the Tribunal erred in the case at hand.

63The applicant’s counsel also stated that the Ouwroulis case, supra, is not applicable to the case at hand, because in Ouwroulis the applicant had completely ignored all of the Tribunal’s directives and was not even communicating with the Tribunal.

64The applicant’s counsel further stated that Rule 5.7 only applies to the circumstances that it specifically enumerates, none of which were applicable to the case at hand. Specifically, Rule 5.7 does not apply where the fact or issue was known, and only the evidence to prove it was not. In the case at hand, it was readily apparent that neither the fact nor the issue was new because the doctor’s report had been disclosed and filed prior to the hearing.

65I now turn to whether to whether the Tribunal should reconsider its decision to deny the applicant’s late request to call his doctor as an expert witness. In my view, it should not. I largely agree with the respondent’s submissions on this issue. Specifically, I agree that, whatever the applicable Rule is (Rule 17.4 or 5.7, or both), the Tribunal considered and weighed the applicable factors against each other, and reached the correct decision.

66The fact that I did not discuss all these factors in detail in my written decision on this issue does not mean that I did not consider them.

67In my view, the Tribunal correctly recognized that the burden of persuasion was on the applicant, who was the defaulting party, to show that the interests of justice merited a waiver of the Tribunal’s Rules. The applicant had a burden to explain his conduct in making the late request, and why it would be fair to hear the expert, and to rebut any evidence that allowing the expert to be heard would cause actual prejudice to the respondent, and would have a deleterious impact on the course of the hearing and the respondent.

68I disagree with the applicant’s counsel that recognizing that the burden of persuasion was on the applicant meant that the Tribunal presumed that the applicant’s expert should not be heard, and that the Tribunal placed the onus solely on the applicant to disprove the factors that were up for consideration.

69The Tribunal’s written decision stated that the applicant failed to provide a credible explanation why he had not made his request earlier, and when he made his request he had not even confirmed with his doctor that he would be available to testify by teleconference. Furthermore, although it is not in the written decision, the Tribunal explicitly ruled at the hearing that its finding that the applicant failed to provide a credible explanation was related to the fact that he admitted that he had received legal advice from the HRLSC prior to the hearing.

70I disagree with the applicant’s counsel that the Tribunal failed to recognize that the applicant was an unrepresented person, who is not a lawyer, was not familiar with the Tribunal’s Rules or their strict implications, and was unable to provide a “good explanation” because of his confusion and misunderstandings. I also disagree that the Tribunal expected the applicant to provide an explanation at the level of sophistication of a lawyer.

71The Tribunal’s written decision explicitly recognized and factored in the fact that the applicant was unrepresented at the hearing (see para. 15 of the Decision). This means that I did not expect the applicant to provide an explanation that was at the level of sophistication of a lawyer.

72I would add that, although the applicant’s counsel purported to be directly citing the Tribunal’s decision when she stated in quotation marks that the Tribunal found that the applicant did not have a “good explanation”, the Tribunal never used those words in its decision. In fact, the Tribunal stated that the applicant failed to provide a “credible explanation” why he had not made his request earlier (see para. 15 of the Decision). A “credible explanation” refers to the believability and reliability of an explanation, and does not imply or require that the explanation be sophisticated.

73My view at the hearing was that, rather than being confused, the applicant was obfuscating. Specifically, he was unwilling to explain why, if he had received legal advice from the HRLSC prior to the hearing, he had had not made his request earlier, or even confirmed with his doctor that he would be available to testify by teleconference.

74Although the applicant’s counsel acknowledged that lawyers (as opposed to lay persons) might be required to have good explanations, the Request for Reconsideration still fails to provide a good or credible explanation. There is no attempt to explain why, if the applicant had received legal advice from the HRLSC prior to the hearing, he had had not made his request earlier, or even confirmed with his doctor that he would be available to testify by teleconference. Instead, the Request contradicted the applicant’s submissions at the hearing by suggesting that he did not have legal advice prior to the hearing.

75The Tribunal’s written decision also gave weight to fairness to the applicant. Specifically, the decision recognized the importance of allowing parties to call expert witnesses in cases, such as this one, which involve the issue of an alleged addiction and its nexus to criminal misconduct.

76On the other hand, the applicant’s late request also raised fairness issues with respect to the respondent. I disagree with the applicant’s counsel that I presumed that there was substantial prejudice to the respondent and put the onus on the applicant to disprove that prejudice. Although I did not explicitly say so in my written decision, it was obvious and undisputed at the hearing that the respondent would suffer substantial prejudice if I allowed the applicant to call his doctor as an expert witness during the three-day hearing.

77The Tribunal’s Rules require parties to deliver to each other and file with the Tribunal a witness list, and an expert witness’s written report or full summary of proposed evidence, and curriculum vitae, at least 45 days prior to the first scheduled day of hearing, in order to avoid, among other things, prejudicing the other parties. Obviously, the closer to a hearing that a party makes a late request to call an expert witness, the more likely that the other parties are to suffer prejudice if the Tribunal grants the request. In the case at hand, the applicant’s made his request at the outset of the hearing, which was extremely late.

78If I had granted the applicant’s request, and allowed him to call his doctor as an expert witness during the three-day hearing, it was obvious that the respondent, its counsel and its own expert would not have had enough time to properly review the doctor’s proposed evidence and curriculum vitae, and any arguably relevant documents in his medical file on the applicant that the Tribunal ordered him to disclose (the applicant did not disclose this file prior to the hearing). In addition, the respondent’s counsel might not have had enough time to properly prepare her cross-examination of the applicant’s doctor.

79The applicant did not attempt to argue that there would be no substantial prejudice to the respondent if I allowed him to call his doctor as an expert witness during the three-day hearing.

80I also disagree with the applicant’s counsel that I presumed that there would be undue delay to the proceeding, and put the onus on the applicant to disprove that there would be such a delay. Although I did not explicitly say so in my written decision, again, it was obvious and undisputed at the hearing that adjourning the hearing and adding further hearing dates would cure any prejudice to the respondent with respect to responding to the applicant’s doctor’s evidence, but would also result, more likely than not, in a significant delay in completing the hearing.

81The applicant had not even contacted his doctor and had no idea what his availability was. In other words, his doctor may have been available to testify during the three-day hearing, or he may not have been available to testify for six months or a year. In addition, the respondent’s counsel stated that if the hearing was adjourned and further hearing dates were to be added, the respondent’s expert witness would not have been available to testify for a lengthy period of time because of his schedule.

82Again, the applicant did not attempt to argue that there would be no undue delay to the proceeding if I adjourned the hearing, and allowed him to call his doctor as an expert witness on an additional hearing date in the future.

83Furthermore, although I did not explicitly say so in my written decision, at the hearing, I considered the impact of adjourning the hearing and adding further hearing dates on the course of the hearing and the respondent.

84Obviously, adding further hearing dates would have lengthened the hearing and required both the respondent and the Tribunal to expend further resources.

85Among other things, the respondent would have been significantly prejudiced by the fact that its legal costs and the fees that its expert charged it would have increased, and it would not have been able to recover these additional costs from the applicant because this Tribunal has no jurisdiction to award costs: Dunn v. United Transportation Union, Local 104, 2008 HRTO 405.

86The Tribunal also would have been required, among other things, to book and pay for a hearing room for the additional days, and to pay for the transportation and accommodation costs for the Vice-chair to preside over the additional hearing days.

87Adding further hearing dates also would have had an impact on the Tribunal’s mandate to facilitate the expeditious resolutions of the merits of the matters before it because I would no longer have been available on those days to mediate or hear other cases.

88The applicant did not attempt to argue that adjourning the hearing and adding further hearing dates would not have a deleterious impact on the course of the hearing and the respondent. Furthermore, in the Request for Reconsideration, the applicant’s counsel merely stated that the delay would not have been extensive without addressing the information that was provided by the parties at the hearing about the availability of their expert witnesses.

89In sum, the applicant has not satisfied me that the Tribunal’s decision to deny his late request to call his doctor as an expert witness should be reconsidered. I remain of the view that the factors in favour of denying his request outweighed the factors in favour of allowing it.

Should the Tribunal’s finding that one of the reasons that the applicant did not prove his case was because his evidence lacked details be reconsidered pursuant to Rule 26.5(c) and (d) of the Tribunal’s Rules?

90In her submissions, the applicant’s counsel stated that the Tribunal failed to ask the applicant questions about certain factual details, and then used the absence of those details to discount and ultimately reject the applicant’s argument. She further stated that the nature of this error and the extent of unfairness to the applicant are matters of public importance that outweigh the need for finality in decision-making.

91Specifically, she stated that the Canadian Judicial Council (“CJC”) and the American Bar Association (“ABA”) have both addressed the duty judges have to ask unrepresented parties questions. In its Statement of Principles on Self-Represented Litigants and Accused Persons, the CJC stated:

When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:

(…)

(e) question witnesses.

92Similarly, in its Standards Relating to Trial Courts, the ABA stated:

Yet it is ultimately the judge’s responsibility to see that the merits of a controversy are resolved fairly and justly. Fulfilling that responsibility may require that the court, while remaining neutral in consideration of the merits, assume more than merely a passive role in assuring that the merits are adequately presented…. Where litigants represent themselves, the court in the interest of fair determination of the merits should ask such questions… as may be necessary to supplement or clarify the litigants’ presentation of the case.

93She stated that the above principles are even more applicable to the Tribunal, given its express jurisdiction and commitment to depart from traditional litigation processes, and the fact that the Tribunal, unlike courts, was specifically designed with an expectation that many users will not have lawyers.

94The applicant’s counsel stated that, in the case at hand, the Tribunal reached its conclusions about the absence of a nexus between the applicant’s alcohol addiction and his criminal conduct based on the fact that the applicant provided very few details about his criminal convictions, including whether or how he was impaired by his addiction to alcohol when he committed the criminal acts. She stated that if the Tribunal felt that these facts were important, it should have asked the applicant if he was drinking or intoxicated when the criminal conduct occurred.

95She also stated that because the Tribunal did not ask any questions to elicit the details that were said to be missing, it gave no notice to the applicant that such details were required in order to make out his case. She stated that if the applicant had been aware that such details were important, or the absence of such details might be used against him, he would have provided them.

96She further stated that the applicant did not understand that these sorts of details were required, and thought that he should not provide them because the Tribunal’s real concern would be with the medical question of whether his alcohol addiction and his criminal conduct were linked. She stated that the applicant thought that the Tribunal would be annoyed by details about particular incidents, and that it would look like he was trying to make excuses instead of taking responsibility for his behaviour.

97In her submissions, the respondent’s counsel stated that the absence of questions from the Tribunal to the applicant about certain factual details is not a proper ground for reconsideration. She stated that it is not the role of the Tribunal to assist any party in making its case by actively seeking to adduce evidence through questions. She stated that procedural fairness does not require that the Tribunal advise an unrepresented party about arguments or evidence that he needs to raise: Brown v. Canadian Tire Corp., 2001 CanLII 15647 (ON L.R.B.) at para. 14.

98She also stated that the broad powers granted to the Tribunal must be exercised in a manner which gives effect to the law, and does not permit the interests of an unrepresented party to override the rights of the other party, and, above all, the Tribunal must not place itself in the role of an advocate for the unrepresented party. She stated these principles were set out by the Divisional Court in Cicciarella v. Cicciarella, 2009 CanLII 34988 (ON S.C.D.C.) at paras. 35-45:

The increase in the number of litigants who appear without legal representation can pose special challenges for busy trial judges. Leeway is allowed for a self-represented party, especially as it relates to procedural matters: Manitoba (Director of Child and Family Services) v. A.(J.) 2004 MBCA 184 , (2004), 247 D.L.R. (4th) 490 , 2004 MBCA 184 at para.32:

The extent to which judges should afford an unrepresented litigant additional "leeway" with respect to court procedures and the rules of evidence is an increasingly vexing problem for courts at all levels. It is generally recognized that the court should provide some assistance to an unrepresented litigant, as occurred in Barrett. See as well A.C.M. v. P.F.M., 2003 MBQB 244, [2003] M.J. No. 386, 2003 MBQB 244. But at the same time this must be done in such a way as not to breach either the appearance or reality of judicial neutrality. See Selmeci v. Canada, 2002 FCA 293, [2002] F.C.J. No. 1086, 2002 FCA 293. How to balance the sometimes competing imperatives of helping a litigant who is in need of assistance while maintaining impartiality is a recurring dilemma for both trial and appellate courts. [Emphasis added.]

While judges should afford an unrepresented litigant additional “leeway,” there is a line to be drawn, as our Court of Appeal enunciated in Davids v. Davids 1999 CanLII 9289 (ON C.A.), (1999), 125 O.A.C. 375 at para. 36 (C.A.). The judge cannot descend into the arena from the bench and advocate for the self-represented litigant:

Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer's familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants' unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party. [Emphasis added.]

(…) in 2006 the Canadian Judicial Council adopted a “Statement of Principles on Self-represented Litigants and Accused Persons.” This Statement of Principles is meant to be advisory in nature. It is not a code of conduct. Its aim is to provide guidance to judges, court administrators, members of the Bar, legal aid organizations and government funding agencies in relation to self-represented persons.

While a trial judge may wish to exercise some leeway in procedural matters to the self-represented litigant, he or she must never become an advocate for the self-represented litigant. Finally, a trial judge must not allow assistance to a self-represented litigant to result in the represented side’s rights being overridden.

99The respondent’s counsel stated that an attempt by the Tribunal to elicit evidence necessary to support the nexus between the applicant’s alcohol addiction and his criminal and other misconduct would have upset the necessary balance of interests between the applicant and the respondent.

100She further stated that the applicant cannot now attempt to add evidence which he failed to adduce at the hearing. She stated that such evidence was available to him at the time of the hearing, and could have been presented by him. She stated that reconsideration is not an opportunity for the applicant to rectify his case or to correct deficiencies in the evidence that could have been called at the hearing.

101In her Reply submissions, the applicant’s counsel stated that the applicant is not arguing that he should have been given special assistance from the Tribunal because he did not have a legal representative. She stated that the applicant agrees with the respondent that the Tribunal should not become an advocate for, give advice to, or help an unrepresented party.

102She stated that the applicant’s position is that the Tribunal’s role in every case is to ensure it has the facts necessary to decide the case based on the merits, and this means that the Tribunal must ask questions to fill in the gaps whether or not the party is represented.

103I now turn to whether to whether the Tribunal should reconsider its finding that one of the reasons that the applicant did not prove his case was because his evidence lacked details. Or, to put it another way, should the Tribunal reconsider its finding because it did not ask the applicant whether or how he was impaired by his addiction to alcohol when he committed the criminal acts and other misconduct? In my view, it should not.

104First, the applicant has not established that there is any conflict with established jurisprudence or Tribunal procedure, or that other factors exist that outweigh the public interest in the finality of Tribunal decisions. There is established jurisprudence that the applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred, but there is no jurisprudence that I am aware of that requires the Tribunal to ask questions to an applicant who has not provided potentially relevant evidence and has not met his onus. I agree that the CJC’s Statement of Principles on Self-Represented Litigants and Accused Persons is a good practice guide for Tribunal members, but in Cicciarella, supra, the Divisional Court clearly stated that the principles are advisory in nature and they are not a code of conduct. For these reasons alone, I would dismiss the Request for Reconsideration on this matter.

105In addition, I disagree with the applicant’s counsel’s depiction of what happened at the hearing. Specifically, I disagree that the applicant did not understand that he was required to provide evidence about whether or how he was impaired by his addiction to alcohol when he committed the criminal acts and other misconduct. My view at the hearing was that, rather than being confused, the applicant was obfuscating.

106Prior to the City Council hearing, the applicant’s union representative sent him a letter dated June 13, 2007, which set out the nature of the details that he needed to provide:

In order for you to prepare for this hearing, it will be necessary for you to be assessed by a medical specialist in the area of alcohol addiction, in order to provide a detailed medical report on the issue of whether you suffer from alcoholism, and if so, the role that alcoholism played with respect to the most recent incident resulting in your criminal conviction. If alcoholism played a role in your previous convictions, this should also be detailed in the report. [Emphasis added]

107In addition, the respondent’s counsel and witnesses stated clearly, repeatedly and in plain English at the hearing before this Tribunal that whether or how the applicant was impaired by his addiction to alcohol when he committed the criminal acts and other misconduct was a central issue.

108For example, when the respondent’s counsel was cross-examining the applicant, she asked him whether his union asserted in 2004 that alcohol contributed to his criminal behaviour, and whether his union asserted in 2007 that his criminal conduct was related to alcohol use. The applicant responded in the negative. She also asked him whether he understood in June 2007, prior to the City Council hearing, that he was required to provide evidence of the link between his alcohol addiction and his criminal acts. The applicant responded in the affirmative.

109The respondent’s counsel also asked two of the respondent’s witnesses, Edward McCullough (the former Fire Chief of the North Bay Fire Department) and David Linkie (the Chief Administrative Officer of the respondent) whether the applicant or his union asserted that his criminal or other misconduct was related to alcohol use. They responded in the negative. As was set out in paragraph 39 of my Decision, Mr. Linkie also testified that at the City Council hearing, the applicant’s union representative did not assert that the applicant was intoxicated when the criminal acts occurred.

110Similarly, as was set out in paragraph 62 of my Decision, the respondent’s expert witness, Dr. Philip Klassen, testified that the applicant’s addiction could not have driven his criminal acts unless he was intoxicated when he committed them, but there is no evidence of intoxication. He also stated that there is no reference to alcohol consumption or addiction to alcohol, or mitigation of sentence because of such, in the criminal court’s Reason for Sentence in October 2007.

111There were also clear indications at the hearing that the applicant understood that whether or how he was impaired by his addiction to alcohol when he committed the criminal acts and other misconduct was an issue. For example, in his oral submissions in response to the respondent’s non-suit motion, he argued that the respondent should have known that he was an alcoholic because in 1995 he was criminally convicted of impaired driving. In addition, in the leading case that he submitted to the Tribunal during the non-suit motion (Kemess Mines Ltd., supra), it was clear that an employee who is alleging that the termination of his employment was related to his addiction must establish whether or how he was impaired by his addiction when he committed the misconduct at issue.

112My view at the hearing was that the applicant knew that whether or how he was impaired by his addiction to alcohol when he committed the criminal acts and other misconduct was an issue, but he was unwilling to provide evidence on this matter.

113Furthermore, although the applicant’s counsel stated that the applicant would have provided that evidence if he was aware that it was important, the Request for Reconsideration also failed to provide that evidence. There is no information in the Request about whether or how the applicant was impaired by his addiction to alcohol when he committed the criminal acts and other misconduct.

114Finally, I believe that it is important to fully address whether the applicant had a fair hearing by providing an overall picture of what happened during this Tribunal’s process.

115The applicant only filed his Application with this Tribunal after his union withdrew a grievance based on the same facts because it had received a legal opinion that the grievance was unlikely to succeed at arbitration.

116After receiving the parties’ pleadings, this Tribunal scheduled a one-day mediation, which did not result in a settlement, followed by a full hearing of the merits of the Application for three days. The Tribunal sent the parties the Notice of Hearing three months before the hearing, which gave the applicant ample time to prepare for the hearing.

117The Tribunal’s Notice of Hearing also set out the Tribunal’s Rules on disclosure of documents and witnesses, and non-compliance with the Rules, and provided the web link to the Tribunal’s Rules, Guides and Practice Directions. The Tribunal’s website has a number of guides and other documents to assist unrepresented parties, including the Applicant’s Guide and the Plain Language Guide. Both Guides provide the HRLSC’s contact details, and state that applicants can obtain free legal assistance from the HRLSC. At the hearing, the applicant indicated that he had, in fact, received legal advice from the HRLSC prior to the hearing.

118At the outset of the hearing, because the applicant was unrepresented, I spent a fair amount of time explaining the hearing process in plain language, and asked the parties, including the applicant, if they had any questions. The applicant then made an opening statement, testified on his own behalf, and called and questioned his one available witness.

119After the applicant completed presenting his evidence, the respondent brought a non-suit motion. I then explained the motion to him in plain language, and provided him with an adjournment to consult further with the HRLSC. Following the adjournment, the applicant made oral submissions in response to the respondent’s submissions, and submitted supporting case law. Ultimately, the Tribunal agreed with the applicant’s submissions and dismissed the motion.

120Finally, the applicant cross-examined all the respondent’s witnesses, and made closing arguments. He elected not to provide reply evidence, notwithstanding the fact that I offered him the opportunity to do so.

121At no point during the hearing did I interfere with the applicant’s questioning or cross-examination of witnesses, or restrict the amount of time that he had to present his evidence, make oral submissions, and question and cross-examine witnesses.

122I also granted the applicant considerable leeway by admitting into evidence a significant number of documents that were hearsay in nature, particularly medical documents.

123In my view, the applicant had a full, ample and fair opportunity to present his case, and the fact that he now regrets that he did not provide evidence at the hearing that he knew was potentially relevant is not a proper reason for reconsidering the Decision and providing him with a new hearing.

ORDER

124The Request for Reconsideration is dismissed.