E.E. v. Conseil des écoles catholiques de langue française du Centre-Est, 2011 HRTO 1435

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.E.

Applicant

-and-

Conseil des écoles catholiques de langue française du Centre-Est

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: August 2, 2011

Citation: 2011 HRTO 1435

Indexed as: E.E. v. Conseil des écoles catholiques de langue française du Centre-Est

written submissions

E.E., Applicant ) on her own behalf

Conseil des ecoles catholiques de langue ) R. Paul ,Marshall, francaise du Centre-Est, Repondent ) Counsel

1The applicant filed an Application pursuant to section 53(3) of the Ontario Human Rights Code, R.S.O. 1990, ch. H.19, as amended (the “Code”). In essence, the applicant alleges that the respondent discriminated against her because it failed to accommodate her daughter's disability and failed to provide appropriate educational services in light of that disability. The respondent denies the allegations of discrimination.

2The purpose of this Interim Decision is to determine a Request for an Order During Proceedings (“Request”) filed by the applicant in which she asks that I recuse myself from this proceeding.

3For the reasons that follow, the Request is denied. It is apparent that the applicant disagrees with a number of the Tribunal’s preliminary decisions and feels that they favour the respondent. The applicant has not, however, established that these decisions or any other aspect of the proceedings give rise to a reasonable apprehension of bias.

OVERVIEW

4Since June of 2010, the Tribunal has scheduled a number of hearing dates in this matter. Most of these hearing dates have been adjourned at the request of one or the other of the parties and for reasons set out in earlier Case Assessment Directions (“CADs”).

5To date, the Tribunal has rendered four CADs and one earlier Interim Decision (2010 HRTO 2438). These have addressed requests for adjournment, as well as a number of preliminary issues. The Tribunal has also rendered a number of oral decisions during the hearing in regards to procedural objections and, in particular, to the admissibility of certain evidence.

6A first day of hearing was held over a year ago, on June 26, 2010. Although the Tribunal and the parties have attended on multiple hearing dates, the Tribunal has, to date, only heard the evidence of one witness. Much of the proceedings have been consumed by procedural objections raised by the parties.

7The materials filed by the parties are voluminous, they include a number of Requests for Orders During Proceedings, several items of correspondence, and in the range of 1000 documents upon which the parties say they intend to rely at the hearing.

Proposed expert witnesses

8On the first day of hearing, the applicant sought to call as witnesses two persons who work in the field of education. It appeared that the evidence of these witnesses would be solely in the nature of expert or opinion evidence. Neither witness had met or worked with the applicant or her daughter and neither was in a position to provide direct evidence relevant to the proceedings.

9The respondent objected to this evidence on the grounds that the applicant had not provided an expert report, a full summary of the expected expert evidence, or a curriculum vitae for either of these proposed witnesses in advance of the hearing. Counsel for the respondent argued that he did not have enough information about the proposed expert witnesses to adequately prepare their cross-examination.

10I ruled orally that the proposed expert witnesses would not testify at this stage of the proceedings. I explained to the applicant that she could seek to call the evidence of these witnesses in reply.

11Unlike the Rules of Procedure governing Part IV Applications, the Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Code do not specifically require parties to provide a copy of an expert witness’ report or a full summary of proposed evidence or a curriculum vitae for each proposed expert witness. However, based on the materials filed by the applicant, it was not clear to me that the evidence of these witnesses would be of assistance to the Tribunal. Moreover, given the factual complexities of this case and the respondent’s concern about preparation for cross-examination, the Tribunal held that the most fair, just and expeditious manner of determining the Application was to hear direct evidence regarding what, if any, steps were taken to accommodate the applicant’s daughter prior to considering the applicant’s proposed expert evidence. As I explained to the applicant, it is open for her to seek to call these two witnesses at a later stage.

12The respondent has also sought to call an expert witness. On June 3, 2010, 25 days before the first day of hearing, the respondent filed an expert report along with a Request for an Order During Proceedings asking the Tribunal to accept the report even though it was not filed 45 days prior to the first day of hearing, as required by Rule 17 of the Rules of Procedure governing Part IV Applications. The applicant has objected to this Request.

13In accordance with a CAD dated January 12, 2011, the respondent filed and provided to the applicant a complete witness list. This amended witness list is lengthy and includes, among others, the name of the expert witness proposed by the respondent. The applicant has objected to the inclusion of this name in the list, given that the Tribunal has not determined the admissibility of the expert report.

14The Tribunal has not yet determined the respondent’s Request to file its expert report. In addition, at this stage of the proceedings, the Tribunal has not determined whether or not the evidence of each of the witnesses listed by the respondent will be heard. The fact that a name appears on a party’s witness list does not mean that the Tribunal will necessarily accept or agree to hear that person’s evidence.

Detailed statements of fact

15Following the first day of hearing and with the consent of the parties, the Tribunal ordered that each party file a detailed statement of fact (“Statement”) for each witness it intended to call. See the CAD dated June 28, 2010. The Tribunal directed that each witness’ testimony would begin with the adoption of the Statement. This would be followed by cross-examination and, if necessary, re-direct. The June 28, 2010 CAD set out a schedule for the exchange and filing of the Statements.

16In accordance with the June 28, 2010 CAD, the applicant filed a Statement regarding her own evidence. The respondent filed a Statement regarding the evidence of Pierre Vachon.

17In a CAD dated August 12, 2010, the Tribunal denied the respondent’s request to amend the timetable for filing further Statements.

18A further hearing date was scheduled for October 22, 2010. At the hearing on October 22, 2010, the parties requested that the hearing be adjourned in order for them to exchange further documents (including a school agenda (“Agenda”)) and in order for the applicant to amend her Statement in light of information contained in the Statement of Pierre Vachon. The adjournment was granted.

19In a CAD dated October 26, 2010, the Tribunal amended the timetable set for the filing and exchange of the Statements. These amendments were requested by the respondent and deemed necessary by the Tribunal because the October 22, 2010 hearing had been adjourned. The Tribunal directed, among other things, that the respondent provide to the applicant and file with the Tribunal all of its Statements by May 6, 2011.

20The hearing was then scheduled to proceed on January 28, 2011; the applicant was to be cross-examined at this time. Counsel for the respondent requested an adjournment of the January 28, 2011 hearing date in order to attend a funeral. The request was granted.

21On March 29, 2011, the respondent asked that the Tribunal again amend the timetable for filing the Statements. Because the applicant had not been cross-examined, as expected, on January 28, 2011, the existing timetable would have required the respondent to file its Statements before the completion of the applicant’s evidence, including her cross-examination. In a CAD dated May 2, 2011, the Tribunal granted the respondent’s request. It held that the respondent would not be required to file its Statements until four weeks after the applicant’s evidence was complete. The Tribunal accepted that alterations to the timetable were necessary in light of the adjournment of the January 28, 2011 hearing. Otherwise, the respondent would be required to file its Statements before the conclusion of the applicant’s evidence, which would likely have resulted in a need for either lengthier oral evidence or amended Statements from the respondent.

June 6, 2011 hearing

22A further hearing date was set for June 6, 2011. The applicant was to be cross-examined on this date.

23At the June 6, 2011 hearing, the applicant objected to be cross-examined because she said the Tribunal had yet to determine two outstanding preliminary issues. She did not provide notice of her objection to the Tribunal or the respondent in advance of June 6, 2011.

24The applicant argued that she ought not to be cross-examined until:

a. The Tribunal orders that the Agendas be filed as evidence with the Tribunal; and

b. The Tribunal determines whether to accept the respondent’s expert report even though it was not filed 45 days before the first day of hearing.

25At the June 6, 2011 hearing, the Tribunal rendered an oral decision refusing to adjourn the applicant’s cross-examination. It directed the applicant to undergo cross-examination and held that the preliminary issues referred to by the applicant were not a valid reason for delaying the cross-examination in the circumstances.

26In regard to the Agendas, I explained to the applicant that all arguably relevant documents are not necessarily placed in evidence before the Tribunal. The respondent indicated that it did not intend to file the Agenda as evidence. I explained to the applicant that, if she sought to file the Agenda in evidence, I would determine its admissibility at that stage. Although the Tribunal concluded that the Agenda is arguably relevant and must be disclosed, there is no basis for the Tribunal to order that the document be filed as evidence.

27With regards to the expert report, I explained to the parties that I would review the written materials filed by the parties and would render a decision at a later date. Counsel for the respondent indicated that he did not intend to cross-examine the applicant in regards to this report. I held that the issue of the admissibility of the report was not a basis to delay the applicant’s cross-examination. I explained to the applicant that she has a right to present evidence in reply. To the extent that she has any concerns about being cross-examined before the preliminary issue of the timing of the expert report is determined, these may be addressed in reply evidence. I explained that her cross-examination could be conducted without prejudice to her right to call evidence regarding the proposed expert report, should it be admitted.

28For these reasons, I rejected the applicant’s request to delay her cross-examination.

29Despite my decision, the applicant indicated that she refused to be cross-examined on June 6, 2011. I explained to the applicant that her refusal to undergo cross-examination in accordance with the Tribunal’s decision could have serious consequences for her Application, including its dismissal. Notwithstanding this, the applicant maintained her refusal to be cross-examined.

30The applicant then indicated that she wished to file a written Request for an Order During Proceedings seeking my recusal. In a CAD dated June 13, 2011, I set out the reasons for my decision to require the cross-examination as well as a timetable for filing submissions regarding the applicant’s Request for recusal.

31The parties have filed written submissions in accordance with the June 2011 CAD.

Positions of the parties

32The applicant argues that I must recuse myself because I have failed to ensure a fair and just process and that my decisions to date have favoured the respondent. In particular: she argues that:

a. I did not address the respondent’s request to file an expert report, which has favoured the respondent and has allowed it to add the expert’s name to its revised witness list;

b. Although I did not allow the applicant to call expert witnesses because these witnesses had not worked with the applicant or her daughter, I allowed the respondent to include the name of a proposed expert witness in its revised witness list. This individual has not worked with or met the applicant’s daughter;

c. I did not order that the Agenda be filed in evidence before the Tribunal; and

d. Even though I declared that all of my decisions are final, I revised my decisions regarding the timetable for filing the Statements.

33The respondent objects to the Request for recusal. It disputes that the Tribunal’s decisions have favoured the respondent and states that the applicant has not demonstrated a reasonable apprehension of bias.

ANALYSIS

Legal principles

34At issue is whether E.E. has demonstrated that there is a reasonable apprehension of bias if I hear and determine this case. The legal principles to be applied are well-established. De Grandpré J. wrote in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (S.C.C.), [1978] 1 S.C.R. 369 at p. 394 that:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

35As the Tribunal noted in Goodridge v. Toronto Police Services Board, 2009 HRTO 94 (para. 15), there is a presumption of impartiality and the onus is on the person seeking disqualification to establish a reasonable apprehension of bias.

Is there a reasonable apprehension of bias?

36As can be judged by the chronology of proceedings and the earlier CADs, these have been difficult proceedings. There have been numerous delays. There is evident animosity between the parties and both have been very positional; it has been difficult to reach a consensus on even basic preliminary issues. As a result, the Tribunal has been called upon to make a number of procedural determinations.

37First, not all preliminary issues must be determined in advance of a hearing on the merits. Under the Rules of Procedure, the Tribunal has broad powers to control its process, including the ability to determine and direct the order in which issues in a proceeding will be considered and determined.

38In the circumstances of this case, where a great deal of time and a number of adjournments have been required because, among other things, of the positions taken by the parties, the Tribunal deemed it appropriate to pursue the applicant’s cross-examination even though the issue of the timing of the expert report had not been determined. This was done without prejudice to the applicant’s right to seek to call additional evidence on this issue in reply.

39Second, as I have indicated, the fact that a witness has been included in a witness list is not determinative of whether that person’s evidence will ultimately be accepted by the Tribunal. The list is principally a means of giving notice to the Tribunal and the other party of intended evidence. The fact that the respondent added a proposed witness to its witness list is not determinative of any party’s right to call evidence.

40Third, the general practice in Tribunal proceedings is for the parties to present evidence and for the Tribunal to determine the admissibility of that evidence. Particularly where, as here, there is no agreement between the parties, the Tribunal may order the production of arguably relevant documents. The fact that a document is arguably relevant for disclosure purposes does not necessarily mean that it will be admissible as evidence. It would be unusual for the Tribunal to order that a document be filed before it where, as here, neither of the parties has sought to rely on that document or file it in evidence.

41Finally, for the reasons I explained above, the Tribunal deemed it necessary to amend the timeframe for the filing of the Statements in light of unexpected adjournments. The Tribunal concluded that to require the respondent to file its Statements before the close of the applicant’s evidence would be inefficient and would likely have resulted in the need for amended Statements to take into account information flowing from the applicant’s cross-examination.

42On the first day of hearing, the Tribunal made a number of procedural rulings orally. Both the applicant and counsel for the respondent disputed some of those rulings and attempted to continue making submissions even after the Tribunal had made its decision. It was in this context that I explained to the parties that the Tribunal’s procedural decisions are final.

43This does not, of course, mean that the Tribunal cannot revisit some of its procedural determinations in light of later developments. To interpret the Tribunal’s powers in this way would run contrary to its mandate to ensure the fair, just and expeditious resolution of applications.

44At the request of one or both of the parties, the Tribunal granted adjournments that were not anticipated when the timetable for filing the Statements was set. In this context, to ensure a fair, just and expeditious hearing of this matter, it was necessary to alter the timetable.

45The applicant has explained why she disagrees with some of the Tribunal’s rulings. She has not, however, demonstrated that they stem from or give rise to a reasonable apprehension of bias. I have considered the applicant’s arguments and have reviewed the determinations she characterizes as partial to the respondent. I conclude that, considered individually or taken as a whole, the Tribunal’s decision do not give rise to a reasonable apprehension of bias.

46Accordingly, the Request that I recuse myself is dismissed.

47The Tribunal will provide further direction to the parties regarding the next steps in this proceeding.

Dated at Toronto, this 5th day of August, 2011.

”signed by”_______________

Michelle Flaherty

Vice-chair