Aberdeen v. Governing Council of the University of Toronto, 2012 HRTO 137

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nepthys Aberdeen

Applicant

-and-

Governing Council of the University of Toronto

Respondent

INTERIM DECISION

Adjudicator: Geneviève Debané

Date: January 19, 2012

Citation: 2012 HRTO 137

Indexed as: Aberdeen v. Governing Council of the University of Toronto

1The applicant filed an Application on May 31, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination and reprisal in the areas of services, goods and facilities on the basis of sex, race, ethnic origin and disability.

2This Interim Decision is to deal with the following issues:

a. A Request for an Order during Proceedings for production of documents and particulars which was filed by the applicant with the Tribunal on October 18, 2011 (the “Request for Order”); and

b. A request by the applicant indicating that she needs to tape record the proceedings;

c. Other case management issues relating to the applicant’s intended witnesses including an email request on January 6, 2012 in which the applicant wants to add two additional witnesses.

3In making its decision, the Tribunal has considered the written submissions filed by the parties and the oral submissions made at the hearing on December 16, 2011.

Background

4On December 20, 2010 the Tribunal issued Interim Decision 2010 HRTO 2514 (the “Interim Decision”), which found that a number of the allegations made by the applicant were not within the Tribunal’s jurisdiction because they were not filed within one year of their occurrence. The Tribunal concuded at para. 18:

I do find, however, that the second component of the Application, specifically the events of June 2, 2009 and after, was within the Code’s one year limitation period. As such, the Application will only proceed with respect to the allegations in relation to the events surrounding June 2, 2009.

5On February 22, 2011, the Tribunal issued a Reconsideration Decision which denied the applicant’s Request to reconsider the Interim Decision: 2011 HRTO 386.

6The matter was scheduled for a one-day hearing in Toronto on December 16, 2011, which was adjourned at the request of the applicant. This matter is scheduled for hearing on February 27, 28 and 29, 2012 in Toronto.

7On December 16, 2011, the Tribunal ruled, neither party objecting, that it was appropriate in this case to bifurcate the issues of liability and remedy. Therefore, the issue before the Tribunal, at this time, is whether the respondent has infringed the applicant’s Code rights. If the Tribunal determines that the applicant’s Code rights have been infringed, it will make further directions, including production of relevant documents and will seek submissions from the parties at that time.

Request for Order

8In the Request for Order, it appears that the following items remain in dispute between the parties:

a. Original or copy of the applicant’s final exam for PHL271H;

b. Complete and full work histories for the campus police officers involved in the applicant’s arrest, including all copies of complaints made against them and copies of all their arrest reports during their employment;

c. Phone records for the offices of Professor Boyle and Professor Heath and their secretaries from May 15 to July 15, 2009; and

d. Professor Heath’s cell phone records from May 27 to July 15, 2009.

9All of the other documents sought by the applicant have either been provided to her or do not exist.

10In correspondence dated December 6, 2011, the applicant also asked for the production of “proof of Stephen Hertel’s injuries”. The applicant also makes a request for this information, in an email to the Tribunal dated January 6, 2012. in which she requests photographic evidence of these alleged injuries.

Copy of Final Exam for PHL271H

11The applicant takes the position that as a result of the events of June 2, 2009, she had no other option than to leave the University. The applicant was enrolled in the PHL271H course during the summer 2009 term. It appeared that the applicant is alleging that as a consequence of the alleged discrimination which took place on June 2, 2009 she was not able to successfully complete her PHL271H course thereafter. The applicant also stated that she is entitled to a copy of the exam pursuant to privacy legislation and the University’s policies.

12The respondent takes the position that the applicant is expanding her allegations of discrimination, and that a review of the Interim Decision and the pleadings make it clear that the last allegation of discrimination alleged by the applicant occurred on June 2, 2009.

13Having considered the submissions of the parties and the pleadings, the Tribunal finds that a copy of the Final Exam PHL271H is not relevant to the liability portion of the hearing. The Application as completed by the applicant on May 31, 2010, alleges that the last date of alleged discrimination occurred on June 2-3, 2009. The exam was written after that date and I find that it is not relevant to the issue of liability, since it was not relied upon by the applicant in her original Application as an allegation of discrimination, and it would not be appropriate to permit the applicant to expand the allegations at this late stage. However, in the event that the applicant is successful in establishing that her Code-related rights have been infringed by the respondent, the Final Exam PHL271H may be relevant to the issue of the appropriate remedies that should be awarded by the Tribunal. At this time, however, I find that it is not appropriate to order the production of this document.

Work Histories and Telephone Records

14In support of the documents sought at para. 8. b, c and d, above the applicant takes the position that she has no witnesses to support her version of events that occurred with respect to the incident that occurred on June 2, 2009. As such the applicant needs these documents to support her theory of the case and to impugn the credibility of the respondent’s witnesses. With respect to the cell phone records, she wants to be able to see who called whom prior to and after her arrest because she believes that there was a concerted effort by these individuals to have her arrested.

15The respondent takes the position that the documents are irrelevant and constitute a “fishing expedition”.

16The Tribunal has the power to order a party to produce any document that is arguably relevant to the proceeding. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal. See Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, at para. 8. Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing. See Lampi at para. 9.

17The Tribunal declines to order the production of documents sought at paragraph 8. b., c., and d.. The Tribunal finds that the applicant has not identified any documents relevant to the question of whether the applicant has been discriminated against on the grounds alleged, and her allegations are speculative in nature. I therefore agree with the respondent that they are not arguably relevant to the issues in dispute. In any event, if they were arguably relevant, in my view the prejudicial effects to the hearing process outweigh their probative value.

Proof of Injuries

18The applicant takes the position that she was accused of injuring an officer who was involved in the arrest and that, therefore, she is entitled to production of photographic evidence which shows these alleged injuries.

19The applicant opposes this request on the basis that the applicant sought production of these documents after the December 16, 2011 hearing and she should not be permitted to take advantage of the adjournment to bolster her case and to seek production of documents mid-hearing.

20Having reviewed the submissions of the parties I find that it is appropriate that the respondents disclose the photographic evidence sought by the applicant with respect to Mr. Hertle’s injuries. In the Response, the respondent alleges that the applicant struck the officers on June 2, 2009. Therefore, this evidence is directly relevant to the allegations made in the pleadings by the respondent. I also find that although the Request for Order did not ask for the production of these documents, the applicant sought copies of these documents in her correspondence to the Tribunal dated December 6, 2011.

Request to tape record the proceedings

21The applicant has requested that the hearing be tape recorded for a number of reasons including for Code-related reasons.

22The respondents have taken the position that it does not oppose the request; however, they assert that if the matter is to be recorded the applicant should retain an experienced Court Reporter and pay for the transcription of the hearing.

23Having considered the applicant’s request, the Tribunal finds it appropriate to permit the applicant to tape record the proceedings as set out in the Order below. The Tribunal has considered its Practice Direction with respect to the recording of proceedings.

Case Management Issues

24The Tribunal has reviewed the parties’ oral and written submissions with respect to the applicant’s proposed witnesses and makes the following rulings on the relevance of their proposed evidence:

a. The applicant has proposed to call two former High School Teachers as character witnesses, Mrs. Aida Williams and Mrs. Tracey Robbertson. The applicant indicated that though she graduated from high school over a decade ago, she has kept in touch with these individuals and they know her. The Tribunal does not normally allow character evidence and I find that the proposed evidence is not relevant to the proceedings.

b. The applicant has proposed to summons an as yet unnamed expert to give evidence with respect to her essays written in PHL303H1. The applicant did not comply with Rule 17.2 which provides that 45 days prior to the hearing the party must furnish the expert’s report or full summary of proposed evidence and a curriculum vitae. At the hearing the applicant stated that she still did not know who could act as this expert witness. In these circumstances the applicant will not be permitted to call this expert witness.

c.. Having ruled that the hearing is bifurcated, I find that the following witnesses do not have relevant information with respect to the issue of liability: Mr.Stewart Cruikshank, Dr. Mark Fowler; and Mr. Marc LaHoux. The applicant seeks to rely on these witnesses to establish the consequences of the alleged discrimination and their evidence may be relevant to the issue of the appropriate remedy, in the event that the applicant is successful in establishing liability and a hearing is convened on the issue of the appropriate remedy.

25All of the other witnesses proposed by the applicant may have relevant evidence to the proceedings and the Tribunal is not in a position at this time to decline to hear their proposed evidence. The Tribunal wishes to remind the applicant that it is her obligation to ensure the attendance of witnesses at the hearing, and if necessary to serve them with the necessary subpoenas.

26With respect to the proposed evidence of Dr. Gea Gea which is relevant to the proceedings because he was the applicant’s treating physician prior to the events of June 2, 2009, I note that the applicant has not disclosed any of her medical records which are relevant in the event that Dr. Gea Gea testifies. The respondent has denied that the applicant is disabled, and therefore this is an issue in dispute between the parties that the Tribunal must address. However, at the hearing counsel for the respondent indicated that the issue of the applicant’s disability could be resolved if the applicant produces a doctor’s certificate confirming the diagnosis of the applicant’s disability. The applicant seemed to be agreeable to this proposal. It appears to the Tribunal that if the parties are in agreement on this issue, it will not be necessary for Dr. Gea Gea to testify or for the applicant to produce her medical records.

27On January 6, 2012, the applicant wrote to the Tribunal asking whether it was too late for her to add two other individuals to her proposed witness list. The applicant does not indicate why these two individuals have relevant evidence.

28The respondent objects on the basis that the applicant had ample time to consider this matter, and supplied an original witness list in excess of nine witnesses, which did not include these two individuals.

29Based on the limited information provided by the applicant as to what relevant information these two potential witnesses may possess, it is impossible to consider the applicant’s request to add these two witnesses at this time

Order

30The Tribunal Orders the following:

a. The respondent shall produce to the applicant by January 31, 2012, photographic evidence, if any, of any injuries sustained by Officer Hertle during the applicant’s arrest;

b. The applicant shall be permitted to tape record the hearing on the following conditions:

1. The applicant must provide the Tribunal and the respondent with a copy of the tape recording within seven days of the hearing date; and

2.the tape recording shall not form part of the Tribunal’s record.

c. The applicant shall not be permitted to call the following witnesses at the liability portion of the hearing: Mrs. Aida Williams, Mrs. Tracey Robbertson, the unnamed expert to give evidence with respect to her essays written in PHL303H1, Mr.Stewart Cruikshank, Dr. Mark Fowler; and Mr. Marc LaHoux.

d. The applicant must deliver to the respondent and file with the Tribunal within five days of this Interim Decision, submissions on the relevance of the testimony of Professor Boyle and Rachel Barney, including full details of the evidence that she believes that they will give at the hearing; and

e. The respondent shall have five days from the receipt of these submissions to respond.

Dated at Toronto, this 19th day of January, 2012.

”signed by”_________________

Geneviève Debané

Vice-chair