XY v. Housing Connections, 2012 HRTO 1147

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

XY

Applicant

-and-

Housing Connections and City of Toronto

Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: June 12, 2012 Citation: 2012 HRTO 1147 Indexed as: XY v. Housing Connections

WRITTEN SUBMISSIONS

XY, Applicant Self-represented

Housing Connections, Respondent Gordon Steinberg, Representative

City of Toronto, Respondent Andrea Denovan, Counsel

1The hearing in this Application is continuing and, following the applicant’s Request to Expedite, has been designated as an expedited hearing. (See Interim Decision, 2011 HRTO 1377.) The applicant alleges that the respondents have discriminated against her in housing (accommodation) on the basis of disability. More specifically, the applicant is a woman who was placed on the respondent Housing Connections’ priority list for housing as a result of being a victim of abuse. The applicant alleges that the respondents have failed to accommodate her in housing, while on the priority list, as a result of her disability, environmental sensitivities. As part of her allegations, she alleges that the respondent Housing Connections refused to provide information to a housing provider which would have given her the opportunity to receive a unit which accommodated her disability.

2At the commencement of the June 6, 2012 hearing date, and before the continued cross-examination of the respondent City of Toronto’s witness, Enid Moscovitch, the applicant advised that she wants to call one or perhaps two witnesses to testify despite confirming at the May 2, 2012 hearing date that she did not have any additional witnesses to testify on her behalf. She had not previously identified this issue with the respondents or to the Tribunal and said that she was not previously aware of one of the witnesses.

3The applicant stated that one of the witnesses is someone who would like to be anonymized in the Decision “for her own reasons” and because she is an applicant in another Tribunal proceeding. The applicant provided some vague details about what this witness would testify about.

4The respondents stated that they do not know what the proposed witnesses will testify about and that the applicant’s witnesses, if permitted to testify, should testify before any further respondent witnesses are called. The respondent City of Toronto submitted that it may be procedurally unfair to allow these additional witnesses to testify given that Ms. Moscovitch, one of its witnesses, was being cross-examined.

5I issued the following oral ruling after hearing from the parties:

The applicant is directed to provide witness statements, and any supporting documentation relating to that witness, which has not been previously produced, by email to the respondents and file with the Tribunal by tomorrow [June 7, 2012] by 4:00 p.m. The respondents have until Monday, June 11 at 12:00 p.m. to provide any response to whether or not the witness(es) should testify and the order in which the witness(es) should testify and the Tribunal will issue a decision, perhaps bottom line. In the event that the Tribunal determines that the witnesses should testify, then the hearing date of Wednesday, June 13 will be adjourned to give the respondents an opportunity to prepare for the evidence of the applicant’s witness(es).

6Subsequent to the June 6 hearing date, I also issued a Case Assessment Direction dated June 7, 2012 (“CAD”), setting out the above-noted oral ruling and noting that the respondents did not know what the proposed witnesses would testify about.

7The applicant has now filed with the Tribunal and the respondents a witness statement for one proposed witness. That proposed witness requests anonymity and since her specific identity for the purposes of this Interim Decision is not relevant, the Tribunal will only refer to her as the applicant’s proposed witness. The proposed witness also seeks accommodation during the hearing to address her chemical sensitivities.

8The witness statement is brief and states (with the proposed witness’ name removed):

1. [Proposed witness] is an individual who has applied to [H]ousing [C]onnections and requested accommodation for her disability of environmental sensitivity/multiple chemical sensitivity.
2. She will testify about her experiences with [H]ousing [C]onnections in regards to her disability.
3. She will provide information regarding what [H]ousing [C]onnections has specifically told her in regards to their policies and procedures for accommodating environmental sensitivity.
4. She will disclose why she is also a victim of discrimination by [H]ousing [C]onnections in regards to her disability.

9Both respondents have filed submissions objecting to the applicant’s proposed witness testifying. The respondent Housing Connections submits that the witness statement does not: outline any direct knowledge of the allegations put forward by the applicant; include any specific first-hand knowledge of the applicant’s allegations, issues or circumstances against the respondent Housing Connections. The respondent Housing Connections questions the relevance of the proposed witness’ testimony to the allegations outlined in the Application. Instead, the respondent Housing Connections submits, the proposed witness’ evidence would be specific to her own interactions to the respondent Housing Connections and would unduly delay these proceedings.

10The respondent City of Toronto adopts the submissions of the respondent Housing Connections. Further, it submits that the witness statement lacks particularity as no time periods have been set out, no dates provided, no particulars about what was alleged to have happened, no persons allegedly involved by the respondent(s) have been identified, and no supporting documentation has been provided.

11The respondent City of Toronto submits that the proposed witness’ evidence appears to be introduced as similar fact evidence. This not relevant to the issues in the Application, it submits, and, alternatively, its prejudicial effect to the respondent City of Toronto should outweigh its probative value. In addition to the lack of particulars, the respondent City of Toronto submits that the hearing would be unduly prolonged by the addition of the proposed witness and that it would be required to defend itself and respond to additional unspecified allegations of discrimination by a non-party, wholly unrelated to the Application, for an unspecified period of time. This would require additional adjournments in order for the respondent City of Toronto to prepare and require it to call additional witnesses. The respondent City of Toronto submits that having the proposed witness testify would be prejudicial to it as the allegations centre around the proposed witness’ involvement with the respondent Housing Connections and not the respondent City of Toronto.

12The respondent City of Toronto notes that the Application is scheduled as an expedited hearing at the request of the applicant, and yet has been adjourned twice because of the applicant and interrupted due to the applicant’s conduct. The respondent City of Toronto acknowledges that the applicant is self-represented, but the Tribunal proceedings must also be fair to the respondents and their witnesses. It submits that the applicant’s late request for the proposed witness to testify raises issues of procedural fairness and natural justice to the respondent City of Toronto, as it will be required to respond to any new evidence tendered by the applicant and the proposed witness.

analysis

13In the circumstances of this case, I have determined that the applicant’s proposed witness should not testify.

14The witness statement, as filed, is not specific with respect to the “who, where, what, when and why” involving the proposed witness and the respondents. Further, no supporting documentation was submitted along with the witness statement, despite instructions in the CAD directing the applicant to submit such supporting documentation and the applicant did not advise the Tribunal that there is no supporting documentation for this witness. In fact, the witness statement suggests that the proposed witness would have documentation as there is a reference to the proposed witness “applying” to the respondent Housing Connections and references to the respondent Housing Connections policies and procedures. This individual was not identified in the applicant’s disclosure obligations pursuant to the Tribunal’s Rules of Procedure.

15Given that the witness statement is extremely vague and that no supporting documents were filed, the respondents will not be in a position to know what the proposed witness’ evidence will be until she testifies. In my view, that is not procedurally fair to the respondents, particularly in a case that is proceeding as an expedited hearing at the request of the applicant, and accordingly the proposed witness is not permitted to testify. In this regard, I might point out that the applicant’s late identification of other issues has resulted in the Tribunal issuing oral rulings at the commencement of two separate hearing days adjourning two hearing dates. When the Tribunal has canvassed the parties’ availability for further dates to replace the adjourned hearing dates, the applicant has expressed displeasure in hearing dates being set beyond a couple of weeks from the adjourned hearing date, and notwithstanding that the dates being canvassed were within two months from the adjourned date.

16Further, while it appears that the applicant is seeking to have the proposed witness testify as similar fact evidence, I find that the proposed witness’ evidence, as set out in the witness statement, does not appear to be similar fact evidence. Alternatively, it if is similar fact evidence, admitting it into the hearing would be prejudicial to the respondents.

17In Washington v. Toronto Police Services Board, 2009 HRTO 217, the Tribunal set out, in length, factors to be considered in determining whether to admit similar fact evidence. At paras. 18-19, the Tribunal stated:

Evidence of a pattern of behaviour supporting an allegation that particular events occurred, known as similar fact evidence or evidence of similar acts, is subject to a special set of legal rules regarding admissibility. In Sinclair v. London (City), 2008 HRTO 48, the Tribunal discussed the principles regarding the admission of such evidence in human rights proceedings, which is, of course, different than in criminal proceedings. As in other areas of law, the balancing of probative value and prejudicial effect is central to this determination, but the probative value and prejudice must be considered in the context of human rights adjudication and values. As the Tribunal stated in Sinclair at paras. 24-26:

While there is a general rule against admission of evidence relating to a person’s character or reputation, the Commission argued that this evidence properly falls within an exception to that principle permitting the admission of “similar fact evidence”. Evidence of similar facts will be admitted if the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56; Chacko v. Transpharm Canada Inc. (c.o.b. Toronto Institute of Pharmaceutical Technology), [2001] O.H.R.B.I.D. No. 11 at para. 11. This requires a weighing by the Tribunal of the benefits of the evidence in assisting the Tribunal in determining the issues before it against the potential prejudice to the hearing process and the party whose character is placed into question through such evidence.

Various factors may affect this balancing process, depending upon the issues in the case: see Handy, supra at paras. 49-97. Probative value often, but not always, arises from the degree of similarity of the alleged similar facts in relation to the disputed issues in the case. Prejudicial effect generally arises from the fact that it may lead to distraction from the central issues in the case, inordinate consumption of hearing time, and reasoning based on the general character of a witness. As noted by the Supreme Court, “[i]ts potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value”.

The balancing of probative value against prejudicial effect, developed primarily in criminal cases such as Handy, must be applied with consideration of the nature of human rights cases and the values relevant to human rights proceedings. These include the fact that discrimination is often subtle and may be difficult to prove, and that a pattern of conduct may be particularly probative in many human rights cases. At the same time, the Tribunal is committed to fair, just and expeditious resolution of human rights cases, and the prejudicial effect of hearing evidence not only on the particular incident in question, but one or more other incidents, and the credibility of witnesses in relation to those events, may cause a significant lengthening of a hearing with little benefit for the determination of the issues in the case. There is also often prejudice to respondents in having to defend themselves against allegations that never formed the subject matter of human rights proceedings at the time they occurred. These factors must be taken into account in the balancing analysis.

Similar fact evidence will often be relevant, but may well not be admitted because of its prejudicial effects. As noted in the quotation above from Lampi, the balancing of potential probative value and prejudicial effect is a factor in determining whether production will be ordered and by what procedure.

18In this case, I find that to allow the proposed witness to testify would be prejudicial to the respondents. The applicant’s evidence has concluded and one of the respondent City of Toronto’s witnesses is almost finished being cross-examined. I agree with the respondent City of Toronto’s submissions that to allow the prospective witness to testify will lengthen the hearing, perhaps considerably, and I note that there is no specific evidence that the proposed witness will testify about any contact with the respondent City of Toronto.

19Further, I note that the proposed witness is identified as being a person with environmental sensitivities and multi-chemical sensitivities. However, she is not identified as being placed on the respondent Housing Connection’s priority list as a victim of abuse and also requiring accommodation in housing because of a disability. Furthermore, there is no information to suggest that she is alleging that the respondent Housing Connections refused to provide information to a housing provider so that she could be accommodated in housing. I cannot find, based upon the information contained in the witness statement, that the proposed witness’ situation is the same as the applicant’s situation.

20Accordingly, and for the reasons set out above, the applicant’s request to have the proposed witness testify is denied.

21The hearing will continue as scheduled on Wednesday, June 13, 2012, with the hope that Ms. Moscovitch’s evidence can be finished. With the applicant’s proposed witness being denied the ability to testify, it would be expected that the respondent Housing Connection’s witness, Paul Chisholm, be ready to commence his evidence on June 13, 2012.