T.S. v. Toronto District School Board, 2012 HRTO 38

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.S. by his next friend P.S.

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: January 9, 2012

Citation: 2012 HRTO 38

Indexed as: T.S. v. Toronto District School Board

1This Interim Decision deals with the respondent’s Request for Order During Proceedings filed on December 15, 2011 and provides some direction for the upcoming hearing scheduled to begin January 25, 2012.

2The respondent submits in its Request that the applicant has failed to comply with the obligations under Rule 17 of the Tribunal’s Rules of Procedure to deliver to every other party and file with the Tribunal a witness list and witness statements no later than 45 days prior to the hearing. The respondent therefore seeks an order that the applicant not be permitted to call witnesses, or a direction that the applicant immediately serve on the respondent and file with the Tribunal summaries of what each witness will say.

3The applicant responded to the Request and argued that he had complied with the Rule.

4Upon review of the documents entitled “Applicant’s Witness Statements”, I agree with the respondent that compliance with Rule 17 has not been met by the applicant. The applicant has provided instead a chart that references documents which the parties have filed and upon which the applicant apparently plans to focus his examinations. Some of the witnesses listed by the applicant appear to be the respondent’s witnesses, not the applicant’s.

5In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal explained, at para. 7:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

DIRECTION

6The applicant is directed to immediately file the materials required under Rule 17, and if the applicant has not done so within 5 days of the date of this Interim Decision, the Tribunal might decide not to allow him to call witnesses at the upcoming hearing. The applicant must clearly list the witnesses that he intends to call and have testify. He should not list the witnesses the respondent has indicated it is calling. The applicant must also note that he (or his next friend) is responsible for arranging that his witnesses attend the hearing.

7With respect to the summaries for his witnesses, the applicant must describe in narrative form with sentences the essence of what the applicant understands each will say. No more than a few paragraphs should be used to describe the intended testimony of each of the applicant’s witnesses. If he intends to call his next friend and his father, the applicant must include them on his list and provide summaries of what they will say. The applicant may simply confirm that certain paragraphs in the Application accurately reflect the evidence that a witness will give, but the applicant must note that a witness who is not qualified as an expert may not give opinion evidence.

8With respect to any witness who the applicant wishes to qualify as an expert, the applicant must comply with Rule 17. 3 and provide more detail with respect to what the expert will say. As stated in the Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario found on the Tribunal’s Website:

[the applicant] must include a copy of the expert witness’ written report, or a full summary of the expert witness’ proposed evidence, as well as a curriculum vitae (résumé) setting out the expert’s qualifications.

9In terms of the order of witnesses, the applicant’s experts, if they qualify at the hearing, will not be testifying the first day of the hearing, but should be prepared to testify on the second day.

10Any outstanding requests will be dealt with at the commencement of the hearing.

11I am not seized of this matter.