HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bebe DeFreitas

Applicant

-and-

Ontario Public Service Employees Union

and Warren Thomas

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: April 6, 2011

Citation: 2011 HRTO 669

Indexed as: DeFreitas v. Ontario Public Service Employees Union

[1] This proceeding deals with two Applications which have been consolidated and are being heard together. The first is an Application filed by the applicant pursuant to the transitional provisions of the Code, which is dated February 12, 2009 (the “transitional Application”). The second is an Application under s. 34 of the Code filed on April 6, 2010 (the “new Application”).

[2] The purpose of this Interim Decision is to address the applicant’s Request for Order dated March 24, 2011. I also will deal with case management matters for the hearing scheduled to commence on April 12, 2011.

Applicant’s Request for Order dated March 24, 2011

[3] The applicant first raises an issue regarding the contents of willsay statements provided by the respondents in response to her allegation that being placed on an unpaid leave of absence pending the result of an investigation initiated by the respondents was racial discrimination in violation of the Code.

[4] The willsay statements filed by the respondents assert that they followed their past protocol and practice in placing the applicant on a paid leave of absence. The applicant’s objection is that I had ruled that the parties were to file detailed willsay statements setting out all of their evidence prior to the commencement of the hearing, and that these statements do not comply with this direction due to a failure to set out any particulars or examples of this alleged past protocol and practice. Accordingly, the applicant requests a ruling that the respondents be precluded from introducing any further evidence or documents to support this assertion.

[5] Clearly, the time for disclosure and filing of documents has passed. The Rules provide for my powers in relation to any attempt by a party to introduce a document which has not previously been disclosed and filed. I have not seen any material to indicate that the respondents intend to tender any such further documents in support of the assertion made in their willsay statements. If this situation arises during the course of the hearing, I will address it in accordance with the Rules. But I am not prepared to make a blanket exclusion order at this stage in the absence of any real issue.

[6] Similarly, the respondents have filed willsay statements in response to my direction. If the respondents intended to elicit evidence regarding specific past instances in which they had acted on the alleged protocol and practice, my expectation is that such evidence would have been included in the willsay statements. It has not. Any support or lack thereof for this assertion may be explored by the applicant, if she so chooses, on cross-examination. If specific evidence comes out during cross-examination of which the applicant was not previously aware, then such matter may be addressed in reply evidence.

[7] The applicant next asserts that the respondents have introduced five new witnesses in relation to an allegation of derogatory comments about her alleged to have been made by the personal respondent at a Divisional meeting that occurred on April 16, 2008. The applicant asserts that this allegation was raised in her first complaint, and therefore ought not properly to form part of the willsay statements that the respondents were directed to file in response to her new application.

[8] In fact, the allegation about derogatory comments alleged to have been made by the personal respondent at the April 16, 2008 meeting was not raised by the applicant in her first complaint. It is correct that this allegation was raised by her in her reply that she filed with the Commission in response to the respondents’ response to her first complaint, and that this allegation also was raised in willsay statements filed by the applicant in relation to the transitional Application. However, that is not the same as the allegation regarding the April 16, 2008 meeting having been raised in the first complaint. In my view, the respondents are entitled to elicit evidence regarding the April 16, 2008 meeting in response to the applicant’s allegation, and I am not prepared to preclude the respondents’ witnesses from providing evidence on this matter. With regard to the applicant’s assertion about the inconsistencies in this evidence, this can be explored by the applicant in cross-examination and in final submissions.

[9] The applicant next asserts that the respondents breached confidentiality and her privacy by sharing a copy of her new Application with the witnesses they propose to call. Under the Rules, a party is entitled to use documents obtained during the course of a Tribunal proceeding for a purpose connected to the proceeding. On the basis of the material I have reviewed, I do not see that the respondents have breached this Rule. I would expect that the witnesses were advised that they were not to use or disseminate any information obtained from documents obtained in the context of this proceeding, which would include the Application, for any purpose unconnected to this proceeding, as required by Rule 5.4 of the Transitional Rules and Rule 3.3 of the s. 34 Rules. If the respondents have not already provided this advice to their witnesses, they are directed to do so immediately.

[10] The applicant also raises an issue regarding what is described as “cookie cutter” language in the witness statements to the effect that each witness is not aware of any representative of OPSEU having engaged in racializing employees or otherwise treating persons with human rights protections in any improper way. I observe that this is not tremendously helpful evidence, as the focus in this hearing is on the allegations raised by one specific OPSEU employee, namely the applicant, and whether her rights under the Code were infringed, which is a matter for me to determine upon the basis of the totality of the evidence. However, in my view, this is a matter going to the weight to be accorded to such evidence and not its admissibility.

[11] The applicant next raises issues regarding the willsay statement filed on behalf of the personal respondent. The first issue raised is with respect to paragraphs 16 and 17 of the willsay statement, which address the applicant’s allegation that being put on a paid suspension pending the investigation was in violation of the Code. This clearly is an allegation that was raised in the transitional Application, although it was repeated as part of the background and context to the new Application. In my view, the personal respondent is not saying anything new when he makes the general assertion that “there were others who were also subject to paid suspensions in similar circumstances”. This evidence, in my view, is essentially the same as the prior evidence of the respondents that putting the applicant on paid suspension was in accord with past protocol and practice. Whether in fact this general assertion is supported by the evidence is a factual matter for me to determine.

[12] In my view, the new piece of evidence included in the personal respondent’s willsay statement is the specific reference to another OPSEU employee who is stated to have been put on a paid suspension in similar circumstances. While this evidence should have been brought forward in the personal respondent’s earlier willsay statement, I am not prepared to exclude it at this stage of the proceeding. However, given that this specific example was only provided to the applicant when the new willsay statements were filed on March 11, 2011, I am prepared to provide the applicant with latitude in cross-examination of the personal respondent on this point, if she so chooses, and in calling reply evidence to respond to this assertion.

[13] The applicant also takes issue with paragraph 15 of the personal respondent’s willsay statement, which references an interaction between the personal respondent and one of the applicant’s witnesses, Tim Brown. The applicant’s first objection is on the basis that this evidence should have been provided in the personal respondent’s initial willsay statement in response to the transitional Application. Once again, however, I note that the alleged interaction between Mr. Brown and the personal respondent was not raised as an allegation in the applicant’s complaint which forms the basis of her transitional Application. Rather, this allegation was raised in a willsay statement filed on behalf of Mr. Brown in the context of the transitional Application on February 26, 2010, which is the same day that the respondents also were required to file their willsay statements. My ruling specifically contemplated that the parties would be able to elicit evidence at the hearing to respond to each other’s willsay statements. That is what I see the personal respondent has done here.

[14] The second basis upon which the applicant objects to this paragraph of the personal respondent’s willsay statement is that, since the preparation of Mr. Brown’s initial willsay statement, he unfortunately is now deceased. I will hear submissions from the parties as to what, if any, weight I should accord to Mr. Brown’s willsay statement in view of his untimely and tragic death, which may impact upon the necessity for the personal respondent’s evidence on this point. However, the fact that Mr. Brown is deceased does not preclude the personal respondent from responding to such evidence, if admitted.

[15] Finally, the applicant raises concerns about general statements made by various respondent witnesses about having followed past policy, protocol or practice in the absence of any documents or any particulars or details to support such assertions. As stated above, this issue may be pursued by the applicant, if she so chooses, in cross-examination, and if new information comes forward of which the applicant was not previously aware, then she may respond with reply evidence. But as previously stated, I am not prepared to make a blanket order precluding further documents or evidence in support of such assertions in the absence of any indication from the respondents that they intend to seek to tender or elicit any such documents or evidence.

[16] Accordingly, the requests made in the applicant’s Request for Order dated March 24, 2011 are denied.

Case Management

[17] The hearing of evidence in this matter is scheduled to proceed on April 12, 13 and 14, 2011. Previous hearing dates in this matter were held on February 2 and April 13, 2010, and dealt with preliminary and procedural matters.

[18] At the hearing day on April 12, 2011, I proposed a process where I would take the lead in questioning the witnesses of all parties, and defer cross-examination of party witnesses until questioning of all other witnesses had been completed. Since that time, pursuant to my direction, the parties have filed detailed witness statements setting out all of the evidence of the witnesses they propose to call in this proceeding, and as such I have much fuller and more comprehensive evidence at this stage of the proceeding than I had on the first day.

[19] Accordingly, I am now proposing to conduct the hearing in the following manner. First, I do not need to hear opening statements from the parties, as I am fully conversant with the issues raised in this proceeding and the positions of the parties.

[20] As detailed willsay statements have been filed on behalf of all witnesses, I propose to commence each witness’ evidence by having the witness affirm the truth of the contents of their statement. Following that, I would allow counsel for the party calling the witness to conduct brief supplementary examination of the witness, followed by cross-examination and re-examination.

[21] In terms of supplementary examination of the applicant and her witnesses, counsel should only address matters raised in the respondents’ witness statements to which the applicant and her witnesses have not already responded in their statements and should not repeat any of the evidence set out in the witness statements, unless the witness’ evidence is directly contradicted by an opposing witness such that I will need to assess their credibility on that specific point. In terms of supplementary examination by respondents’ counsel, this should only address oral evidence given by the applicant or her witnesses which was not already addressed in the statements filed for the respondent witnesses and should not repeat evidence set out in the statements, again unless the witness’ evidence is directly contradicted by an opposing witness such that I will need to assess their credibility on that specific point.

[22] In terms of cross-examination, the parties are not required to comply with the rule in Browne v. Dunn, as the witnesses will have had an opportunity to respond to contrary evidence in their statements of evidence and oral evidence. If some new and unanticipated contrary evidence arises at the hearing, this could be addressed in reply evidence.

[23] In furtherance of this Tribunal’s mandate for conducting hearings in a fair, just and expeditious manner and in order to make the best use of the time currently scheduled for this hearing, I am proposing the following time estimates for supplementary examination and cross-examination. In setting time estimates for examination and cross-examination, I note that these are estimates only and are not intended to limit or cut off relevant evidence. If counsel or a party gets to the end of the allotted time, then I would hear from counsel what further areas of evidence they believe they need to cover to complete the supplementary examination or cross-examination and I would rule on what further evidence I need to hear.

[24] The time estimates proposed for the witnesses are as follows. The witnesses are set out in the order their statements appear in the materials filed by the parties, and are not intended to dictate to the parties the order in which these witnesses need to be called. However, all parties should have sufficient witnesses available and ready to testify in order to make full use of the three scheduled hearing days.

Supplementary Examination

Cross-Examination

Bebe De Freitas

30 mins

3 hrs

Barb Thomas

10 mins

30 mins

Twila Marston

15 mins

45 mins

Roger Haley

15 mins

45 mins

Jim Gilbert

5 mins

10 mins

Mary Ellen Cassey

5 mins

10 mins

Stephen Giles

5 mins

10 mins

Glenna Caldwell

10 mins

30 mins

Gord Longhi

15 mins

45 mins

Charlene Tardiel

10 mins

30 mins

Terry Moore

5 mins

15 mins

Peter Thompson

15 mins

45 mins

Catherine Bowman

15 mins

1 hr

Pam Doig

10 mins

45 mins

Bob Eaton

10 mins

45 mins

Ron Lavigne

15 mins

1 hr

Derek Miller

5 mins

15 mins

Jeanne Theriault

15 mins

1 hr

Warren Thomas

30 mins

3 hrs

Steve Nield

10 mins

30 mins

Garry Peck

5 mins

15 mins

Nick Mustari

5 mins

15 mins

Dan Sidsworth

5 mins

15 mins

Heino Nielsen

10 mins

30 mins

Janet Holowka

5 mins

15 mins

Jeff Dvorak

5 mins

15 mins

[25] On the basis of these time estimates, we will need to schedule an additional two hearing days to complete the evidence and to hear any reply evidence. The scheduling of these additional days will be addressed at the hearing next week.

[26] If any party has any objection to the above time estimates or manner of proceeding, they shall serve and file any written submissions by no later than the end of the business day on Friday, April 8, 2011.

Dated at Toronto, this 6^th^ day of April, 2011.

“Signed by”

Mark Hart

Vice-chair