E.E. v. Conseil des écoles catholiques de langue française du Centre-Est, 2011 HRTO 2132

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

DECISION

Adjudicator: Michelle Flaherty Date: December 1, 2011 Citation: 2011 HRTO 2132 Indexed as: E.E. v. Conseil des écoles catholiques de langue française du Centre-Est

APPEARANCES

E.E., Applicant ) on her own behalf Conseil des écoles catholiques de langue française du Centre-Est, Respondent ) R. Paul Marshall and Céline Delorme, Counsel

1This Application was filed pursuant to section 53(3) of the Ontario Human Rights Code, R.S.O. 1990, ch. H.19, as amended (the “Code”). In essence, it alleges that the respondent breached the Code because it failed to accommodate T.E.'s disability and failed to provide appropriate educational services to her in light of that disability. The respondent denies the allegations of discrimination.

2The applicant has refused to comply with the Tribunal’s direction to undergo cross-examination. Although the Tribunal has considered and denied her request to adjourn her cross-examination, the applicant refuses to be cross-examined until the basis for her request to adjourn has been determined “to her satisfaction”.

3Parties before the Human Rights Tribunal of Ontario are involved in a legal proceeding. They are required to respect the Tribunal’s orders and directions, even if they disagree with them. Where an applicant refuses to follow Tribunal directions, the Application may be dismissed as an abuse of process.

4For the reasons that follow, the Application is dismissed. It would be an abuse of the Tribunal’s process, unfair to the respondent, and contrary to the public interest for this matter to proceed.

5Since June of 2010, the Tribunal has scheduled a number of hearing dates in this matter. To date, the Tribunal has rendered approximately seven Case Assessment Directions (“CAD”s) and two Interim Decisions: 2010 HRTO 2438 and 2011 HRTO 1435. Although the Tribunal and the parties have attended on multiple hearing dates, the Tribunal has only heard the evidence of one witness. Much of the proceedings have been consumed by procedural objections raised by the parties.

6The 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

7On the first day of hearing, in June 2010, 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.

8The 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.

9I 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.

10Unlike 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.

11The respondent has also sought to call an expert witness. On June 3, 2010, approximately 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.

12In 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.

13The Tribunal has not 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

14Following 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.

15In 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 Stéphane Vachon.

16In a CAD dated August 12, 2010, the Tribunal denied the respondent’s request to amend the timetable for filing further Statements.

17A 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 Mr. Vachon. The adjournment was granted.

18In 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.

19The 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.

20On 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.

21The applicant objected and continues to object to any amendments to the timetable for exchanging and filing Statements. As I discuss in more detail below, she states that these timetables should not be amended because the Tribunal has stated that its decisions are final. She also argues that amendments to the timetable favour the respondent and evidence the Tribunal’s partiality.

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 Agenda 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 Agenda, 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, the Tribunal rejected the applicant’s request to delay her cross-examination.

29Despite this decision, however, 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. The hearing was adjourned and the parties were given an opportunity to make written submissions regarding the recusal issue.

Request for recusal

31The applicant filed written submissions arguing that I ought to recuse myself because I had failed to ensure a fair and just process and that my decisions had favoured the respondent. In particular, she argued 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.

35In Interim Decision 2011 HRTO 1435, I dismissed the applicant’s Request for recusal. The Interim Decision states:

First, 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.

In 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.

Second, 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.

Third, 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.

Finally, 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.

On 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.

This 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.

At 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.

Submissions regarding abuse of process

36In its response to the Request for recusal, the respondent argued that the applicant’s refusal to undergo cross-examination constituted an abuse of process. It asked that the Application be dismissed because of abuse of process.

37On August 5, 2011, the Tribunal issued a CAD seeking submissions from the parties regarding whether the applicant’s refusal to submit to cross-examination constitutes an abuse of process.

38In the applicant’s written submissions regarding the abuse of process issue, she sets out a list of inaccuracies in the Tribunal’s process, including its Interim Decision 2011 HRTO 1435 and its CADs. The applicant states that she is incredulous as to the number of errors that have been ongoing in these proceedings and argues that, in the circumstances, the inaccuracies justify her refusal to undergo cross-examination.

39The inaccuracies identified by the applicant and cited in support of her refusal to undergo cross-examination include the following:

i. The cover page accompanying the Tribunal’s August CAD is dated August 2, 2011, but the date of August 5, 2011 appears on the last page of the CAD;

ii. The Application alleges discrimination against T.E., not E.E. as the first paragraph of the Tribunal’s Interim Decision 2011 HRTO 1435 suggests;

iii. The Tribunal refers to “a number of hearing dates”, when in fact the parties have only attended three days (or partial days) of hearing;

iv. Although the Tribunal’s Notice of Hearing for the October 22, 2010 hearing date indicated that the hearing would begin at 9:30am, the Vice-chair did not attend until 10:00am. She had not received a copy of a Request for an Order During Proceedings filed by the respondent on October 12 and an adjournment was necessary;

v. The Tribunal mischaracterized the evidence that the applicant sought to call on the first day of hearing. (See paragraph 9, above.) The applicant states that she sought to call three witnesses, that only two of them were present on the first day of hearing, and that the Tribunal heard the evidence of one of the witnesses. She states that the respondent did not object to the evidence of one witness and that it cross-examined the witness who did give evidence;

vi. The Tribunal did not explain to E.E. that she could seek to call evidence in reply;

vii. The Tribunal did not correctly identify the date of the first day of hearing in this matter;

viii. The Tribunal did not correctly identify the date of a CAD;

ix. The Tribunal incorrectly refers to “Stéphane Vachon” as “Pierre Vachon”; and

x. The Tribunal uses the term “agenda”, which does not accurately depict the nature of the documents at issue and had repercussions in terms of the documents that were actually disclosed by the respondent.

40In her written submissions regarding the issue of abuse of process, the applicant also reiterates why she feels some of the Tribunal’s earlier directions and decisions are incorrect. She continues to take issue with the Tribunal’s decision not to adjourn her cross-examination and maintains that preliminary issues must be addressed in advance of her cross-examination. She states that the Tribunal’s failure to determine the admissibility of the evidence of her proposed expert witnesses is a further reason to adjourn the cross-examination.

41After reviewing the written submissions, I determined that it was appropriate to schedule a hearing and hear oral submissions from the parties on the issue of abuse of process. The hearing took place on October 28, 2011.

42At the hearing, the applicant stated that until all of the reasons and issues that had lead her to refuse to be cross-examined on June 6, 2011 were dealt with in a manner “satisfactory to me”, she would not agree to be cross-examined. She stated that if the Tribunal required her to undergo cross-examination on the same conditions it did on June 6, 2011, she would not accept.

43She explained that by “satisfactory to me”, she did not necessarily mean in her favour. She stated that, to satisfactorily deal with the issues, the Tribunal would need to correct the inaccuracies that have been committed (see, for example, para. 39) and to ensure that the matter proceeds without further inaccuracy. She stated that, given the errors and inaccuracies in the matter, she was and is justified in refusing to undergo cross-examination.

44At the hearing, I indicated to the applicant that I had reviewed and considered the alleged inaccuracies that she has identified. I stated that I found any such innaccuracies to be immaterial to my conclusions. I indicated to her that the Interim Decisions and CADs would not be modified. The applicant stated that, in the circumstances, she maintained her refusal to be cross-examined.

45On June 6th, in her written representations on abuse of process, and throughout the hearing held on October 28, 2011, the applicant’s refusal to undergo cross-examination was unqualified. She categorically refused to take the stand and respond to any questions from the respondent.

46Following the close of the October 28, 2011 hearing, however, the applicant wrote to the Tribunal, copying the respondent. She stated:

I refuse to be cross-examined in the case of discrimination in regards to me. [TRANSLATION]

47The applicant cites the French version of Tribunal’s Interim Decision 2011 HRTO 1435, which she had earlier identified as being inaccurate (see paragraph 39(ii), above). In her October 28, 2011 letter, she states that her daughter (and not her) has made allegations of discrimination and that it is therefore not possible for her to comply with the Tribunal’s direction, which she says concerns allegations that do not exist.

ANALYSIS

48Section 23 (1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, states:

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

49The following provisions of the Tribunal’s Rules of Procedure for Transitional Applications are also relevant:

4.3 To ensure the fair, just and highly expeditious resolution of an Application under section 53(3) or section 53(5) of the Code the Tribunal may:

m.1) make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants.

50As can be judged by the history of this matter, this has been a difficult proceeding. 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. There is, however, no basis to conclude that (on issues other than cross-examination) the positions taken by either party are so vexatious as to warrant a finding of abuse of process. Similarly, except as it relates to her refusal to abide by the Tribunal’s direction, the case does not directly engage questions about the courteousness of the applicant or her behaviour during the course of the proceedings.

51The issue in this case is whether the applicant’s refusal to comply with the Tribunal’s direction that she undergo cross-examination warrants a finding of abuse of process.

52As the Tribunal noted in Ouwroulis v. New Locomotion, 2009 HRTO 335, human rights applications are serious matters. When an individual files a human rights application, he or she is commencing a legal proceeding and engaging public resources. This comes with the obligation to respect the Tribunal’s process and comply with its Rules and directives, even if the applicant disagrees with them. See also Felix v. Shoppers Drug Mart, 2011 HRTO 89.

53The Tribunal has, in the past, held that a failure to follow its direction constitutes an abuse of process. See, for example, Felix, supra; Briggs v. Niagara Falls (City), 2010 HRTO 2244; Nourhaghighi v. Toronto Catholic District School Board, 2009 HRTO 2085; and Okunbor v. Hopewell Logistics, 2009 HRTO 2124.

54The applicant argues that the Application should not be dismissed because she has behaved respectfully throughout the proceeding. I disagree.

55While the applicant’s behaviour in other regards is not directly at issue, I find that her repeated refusal to abide by the Tribunal’s direction to undergo cross-examination demonstrates a lack of respect for the Tribunal and its process. By refusing to comply with its directions, the applicant has impeded the Tribunal’s ability to fairly, equitably and efficiently determine the issues raised in the Application. Her refusal has also created circumstances where to proceed would put into question the proper administration of justice and would be fundamentally unfair to the respondent.

56The applicant states that her refusal is justified given the inaccuracies in the proceedings. As I indicated to the applicant at the October 28, 2011 hearing, to the extent that the applicant has identified inaccuracies in the Tribunal’s proceeding, including its Interim Decisions and CADs, these are not material to the conclusions that were reached.

57The applicant relies on the following passage from Ouwroulis, supra:

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 the Tribunal directions risks having the application dismissed.

58The applicant argues that the circumstances of this case, notably the inaccuracies in its rulings and its failure to adjourn the applicant’s cross-examination in order to determine preliminary issues, justify her refusal to comply with the Tribunal’s direction.

59In my view, Ouwroulis does not stand for the proposition that a party may knowingly or intentionally refuse to comply with Tribunal directions. It may be that Ouwroulis contemplated circumstances where an error or ommission arising from a lack of due diligence or a lack of understanding may justify a failure to comply. However, to interpret Ouwroulis in the manner the applicant has suggested would undermine the Tribunal’s ability to control its process and to fulfill its mandate.

60In any event, I find that the applicant has not described circumstances that would justify a failure to comply with the Tribunal’s direction. Rather, she has described why she disagrees with the Tribunal’s decisions and she has made much of immaterial typographical, translation, and other minutia of the Tribunal’s decisions and proceedings.

61Moreover, both in her submissions on abuse of process and in her letter following the October 28, 2011 hearing, the applicant sought to place conditions on her cross-examination. She is, effectively, trying to control the Tribunal’s hearing process and to dictate the timing and scope of her cross-examination. This is a further example of the applicant’s lack of regard for the Tribunal’s hearing process and clearly constitutes an abuse of process.

DECISION

62For all of these reasons, the Application is dismissed.

Dated at Toronto, this 1st day of December, 2011.

”signed by”_____________

Michelle Flaherty

Vice-chair