Peart v. Ontario (Community Safety and Correctional Services), 2013 HRTO 853

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wilbert Peart

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services

Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: May 17, 2013 Citation: 2013 HRTO 853 Indexed as: Peart v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Wilbert Peart, Applicant

Farah Malik, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Respondent

Arif Virani and Daniel Huffaker, Counsel

1This is an Application filed under s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The issue raised by this Application is whether section 10(5) of the Coroner’s Act, R.S.O. 1990, c. C.37, as amended, which mandates a coroner’s inquest where a worker dies in a construction project, mining plant or mine, but not but not where a migrant farm worker dies in an agricultural workplace, is discriminatory on the basis of race, ethnicity, ancestry, place of origin, colour or citizenship, contrary to sections 1 and 9 of the Code.

2The hearing of evidence in this matter proceeded in Toronto on April 17, 18, 23, 24, 25 and 26, 2013. A further hearing day is scheduled for June 28, 2013 to hear final argument.

3The purpose of this Interim Decision is set out certain procedural rulings that I made orally in the early stages of the hearing, and to address the applicant’s proposed reply evidence.

4With regard to the procedural rulings that I made at the hearing, the first deals with a process for the hearing of expert evidence and the second deals with a process for receiving documents into evidence in a case of this nature. The procedural rulings I made, while consistent with the powers of this Tribunal under the Code and its Rules of Procedure, are not intended to reflect procedures that will be adopted by this Tribunal in the circumstances of every case. Rather, for the reasons I express, it was my ruling that these were appropriate processes to adopt in the circumstances of this case in order to ensure the fair, just and expeditious resolution of this matter, as they also may be in other cases.

Process for hearing expert evidence

5With regard to the process for hearing expert evidence, I made the following oral ruling on the first day of hearing, after hearing and considering the submissions of the parties:

1. At the outset of the hearing, I proposed to address the proposed expert witnesses by having the witness affirm the truth of the contents of her or his witness statement and/or report as filed in advance of the hearing, subject to any objection the opposing party may raise as to the admissibility of any statements contained therein, to have any questions regarding the qualifications of the witness as an expert be reserved for cross-examination, and to have the parties raise any issues regarding the admissibility of the witness’ evidence as expert evidence and/or the weight to be accorded to any such evidence as part of their final submissions.

2. The applicant was amenable to this proposal. The respondent objected to this proposal on the basis that, in accordance with normal procedure, I should first hold a voir dire during which each proposed expert witness would be tendered and qualified as an expert with the right of opposing counsel to question the proposed expert on their qualifications. The respondent submits that a failure to follow this normal procedure would prejudice its position, as expert evidence that may ultimately be disqualified would already have been given on the record. The respondent further submits that, by not having advance notice of this proposed procedure prior to the start of the hearing, it was prejudiced in its ability to file a Request for Order in advance of the hearing seeking to have the proposed expert witnesses disqualified or to restrict the scope of their proposed evidence. Finally, it was submitted that conducting a voir dire may be more efficient in terms of the running of the hearing, as if I were to rule that a particular proposed expert witness is disqualified or if I were to restrict their proposed evidence, this may result in a savings of hearing time.

3. With regard to the first point, I do not agree that it would prejudice the respondent’s position by hearing the evidence of the proposed expert witnesses. The parties already have filed expert reports, which I have reviewed, so I already am familiar with their proposed evidence. If I ultimately decide to disqualify a witness as an expert or restrict the scope of their expert testimony on the basis of the parties’ final submissions, I am just as capable of disregarding the evidence they have provided at the hearing as I am able to disregard the material I already have reviewed from the materials filed in advance of the hearing. While the proposed expert’s evidence will have been recorded on the transcript which the respondent has been granted permission to record, such evidence also can be disregarded if found to be disqualified both for the purpose of my ultimate decision in this matter and for the purpose of any potential judicial review.

4. With regard to the second point, I do not regard the respondent’s inability to file a Request for Order in advance of the hearing to be prejudicial. The issue was raised at the start of the hearing, and all parties were given full opportunity to make submissions on the issue, which I have considered. I would have reached the same result had the issue been raised by the respondent in advance of the hearing.

5. Finally, reasonable minds may differ on which process is more efficient in terms of the running of the hearing. In my view, the process that I have proposed will allow the parties and the Tribunal to focus the hearing time that has been allocated for this matter on issues relating to the substance of the testimony of the proposed expert witnesses, without prejudicing either party’s right to challenge the qualifications of the expert or the weight to be accorded to their testimony as part of their final submissions.

6. The respondent has raised what is described as a pragmatic issue that his ability to object to proposed evidence will be prejudiced on the basis that, without a prior finding regarding a proposed expert’s qualifications or as to the proper scope of her or his expert evidence, he will not be able to properly base any objection he may have and will either be forced to remain silent or object to virtually every question put to the proposed expert. In my view, this is the same issue that I already have addressed. The fact that a proposed expert is permitted to give evidence in chief on a particular point is not a determination by me as to the admissibility or weight to be accorded to that evidence, nor would the failure of the respondent to raise an objection during examination in chief be viewed by me as a tacit acceptance of the admissibility of that testimony. These are issues that can be addressed by respondent counsel as part of his cross-examination and as part of his final submissions.

7. The respondent has referred me to the Supreme Court’s decision in Moore v. British Columbia (Education), 2012 SCC 61, [2012] S.C.J. No. 61, in which a human rights tribunal was cautioned against turning a hearing into a Royal Commission. That is neither the intent nor effect of the procedure I have proposed. Rather, the intent is to facilitate hearing the substance of the evidence in the allotted time without getting bogged down in a series of voir dires on the qualifications of the proposed expert witnesses.

8. The respondent also has referred me to this Tribunal’s decisions in McKay v. Toronto Police Services Board, 2009 HRTO 876 and 2011 HRTO 499, in which it appears that in another case, this Tribunal denied a pre-hearing request to disallow a proposed expert witness, but at the hearing appears to have followed the traditional process of holding a voir dire to qualify the proposed expert before ruling on whether to hear the witness’ evidence.

9. While that may have been the procedure adopted in that particular case, this Tribunal has broad authority to adopt non-traditional procedures. Pursuant to the provisions of the Code, this Tribunal is expressly empowered under s. 41 to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal will facilitate fair, just and expeditious resolutions of the merits of the matters before it. This Tribunal also has the power under its Rules to determine and direct the order in which issues in a proceeding, including issues considered by a party to be preliminary, will be considered and determined: Rule 1.7(g). In my view, this Rule gives me the power to consider the issue of a proposed expert’s qualifications as part of final argument, notwithstanding the respondent’s position that this should be addressed as a preliminary issue prior to permitting the proposed expert to testify. I also rely upon my powers to determine and direct the order in which evidence will be presented (Rule 1.7(j)), to limit evidence and submissions on any issue (Rule 1.7(n)) and take any other action the Tribunal determines is appropriate (Rule 1.7(w)).

10. Accordingly, my ruling is that I will proceed to hear and consider the proposed expert evidence to be elicited by both parties in accordance with the procedure I have proposed as set out above.

Process for receiving documents into evidence

6With regard to the process for receiving documents into evidence, I made the following oral ruling on the second day of hearing, after hearing and considering the submissions of the parties:

1. At outset of hearing, and in accordance with common practice at this Tribunal, I marked as exhibits the documents that had been filed by the parties in advance of the hearing and in accordance with the Rules as documents that they intended to rely upon at the hearing. I indicated to the parties that, by marking the books of documents as exhibits, I was accepting the authenticity and admissibility of all documents or items included, and that they were prepared on or about the dates indicated and say what they say, subject to any objection raised about any specific document or item included in these materials. I further indicated that all parties would be free to make reference to these materials during the course of this proceeding whether or not any particular witness has specifically given evidence about any particular document, article or other materials. I indicated that I did not need any witness to take me to any particular document solely for the purpose of identifying the document or reading from the document, but that if a witness has evidence to provide regarding the context surrounding a particular document or to elaborate upon what is stated in the document or indicated in the item, then that would be fine.

2. On the second day of the hearing, the respondent raised a general objection to this method of proceeding, on the basis that it was prejudiced by not having the applicant’s witnesses formally go to each document, identify it and indicate the relevance of the document in the context of their evidence and the issues before me, so that the respondent would be able to know the case against it. While I appreciate that this is the usual procedure adopted in the civil courts for the tendering of documents and materials into evidence, the Code and this Tribunal’s Rules expressly permit this Tribunal to adopt processes and procedures that do not conform to typical adversarial or adjudicative procedures, in the interest of ensuring the fair, just and expeditious resolution of human rights applications.

3. In my view, the process that I have indicated for the marking of exhibits does facilitate the fair, just and expeditious resolution of the matter before me. The parties exchanged the documents they intended to rely upon at the hearing some time ago, and have had ample time to review and familiarize themselves with these documents. The issue before me has been clearly framed by the parties for some time. Further, much of the material before me in this proceeding is in the nature of government reports, statistics, or social science literature, which the parties may be able to submit before me in a case of this nature without the necessity for such materials to be tendered into evidence. In my view, affording the parties with the ability to object to any particular document put forward by the opposing party ensures that each party has a fair opportunity to raise any objections to this material. Further, I do not accept that the respondent is prejudiced by this procedure in its ability to cross-examine the applicant’s witnesses, as it has comprehensive statements and reports setting out their proposed evidence with specific references to much of the material before me. In my view, requiring each witness to go through the painstaking process of identifying each individual document solely for the purpose of identification and to confirm that this is a source relied upon in their statement or report, which the Tribunal and the parties already know, is a waste of hearing time and does nothing to promote the fair, just or expeditious resolution of this matter.

4. I also note that I have the power under s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 to admit as evidence at a hearing, whether or not proven under oath or affirmation or admissible as evidence in a court, any oral testimony and any document or thing relevant to the subject-matter of the proceeding and I may act on such evidence.

5. Accordingly, I confirm the procedure that I previously had adopted for the marking of exhibits in this proceeding and the basis upon which these materials were being accepted into evidence before me.

6. The respondent has sought clarification regarding a number of points arising from the procedure I have adopted. First, the respondent asks if the applicant is entitled to rely upon documents not put to a witness. As I stated at the outset, subject to my ruling on any specific objections to any particular document, all parties are entitled to rely upon any materials before me in their final argument, whether or not the specific document was put to any particular witness. Second, the respondent has sought clarification as to whether I will draw an adverse inference from its failure to specifically put a document to a witness in cross-examination. I will not draw any such adverse inference. And third, the respondent has asked whether the Tribunal is entitled to rely in its ruling upon a document not put to any witness. Once again, the short answer is yes and the parties when making their final submissions will be able to rely upon all materials marked as exhibits before me.

7I proceeded in my oral ruling to address the respondent’s objections to specific documents tendered by the applicant, which I will not repeat here. Respondent counsel also requested that I note that he raised his objection to this procedure on the first day, and not on the second as indicated in my ruling. In my view, nothing turns on whether the respondent’s objection was raised on the first or second hearing day.

Proposed reply evidence

8At the conclusion of the respondent’s evidence, I afforded the applicant the opportunity to make written submissions about any proposed reply evidence, with an opportunity for the respondent to respond in writing and for the applicant to reply.

9The applicant seeks leave to call brief evidence in reply to the evidence of a witness called by the respondent, Dr. Brison. Specifically, the applicant seeks to call evidence in reply to Dr. Brison’s evidence in response to a witness called by the applicant, Dr. McLaughlin. At issue were the deaths of some Caribbean migrant farm workers during the period from 1996 to 2011 where the cause of death, as indicated on a report prepared by an organization called F.A.R.M.S., is shown as “heart attack”. Dr. McLaughlin testified that migrant farm workers are required to submit to a medical examination in their home country before they come to Canada, and stated in her evidence that, as a result, it would be unlikely that these deaths are attributable to natural causes. In response, Dr. Brison testified, on the basis of his experience as an emergency physician, that things such as a heart lesion are difficult to detect in a medical examination and that, in his day-to-day work, he sees many people who are otherwise healthy and yet experience heart attacks. He stated in his evidence that he disagreed with Dr. McLaughlin’s evidence that these deaths could be attributed to the work environment, which he characterized as a “stretch”.

10The applicant proposes to call as a witness in reply, Dr. Donald Cole, who is an epidemiologist, medical doctor and associate professor at the Dalla Lana School of Medicine at the University of Toronto, to respond to Dr. Brison’s evidence on this point. In the alternative, the applicant proposes to re-call Dr. McLaughlin for the same purpose. This request is opposed by the respondent, which submits that this is not proper reply evidence, as the issue of whether the deaths of migrant farm workers occurred as a result of an accident in the workplace, or perhaps whether these deaths are work-related, was a critical issue that was apparent from the outset of the hearing.

11As stated above, this Application is a challenge to s. 10(5) of the Coroners Act, which requires a mandatory inquest “where a worker dies as a result of an accident occurring during the course of the worker’s employment at or in a construction project, mining plant or mine, including a pit or quarry”. The applicant’s position is that it is discriminatory and in violation of the Code that this provision does not also require a mandatory inquest in relation to the work-related deaths of migrant farm workers. One of the issues upon which I have heard a significant amount of evidence relates to the death rates of construction or mining workers for whom mandatory inquests have been required, as opposed to the corresponding death rate for migrant farm workers or perhaps for agricultural workers more generally.

12To the extent that I may be required in this case to determine the appropriate comparative death rate for migrant farm workers, it may be an issue for me to determine the extent to which the evidence before me regarding the deaths of migrant farm workers can be regarded, to use the language of s. 10(5) of the Coroners Act, as being as a result of an accident occurring during the course of the worker’s employment at or in an agricultural workplace. I understand that the applicant may be asking me to more broadly consider whether the deaths of migrant farm workers can be regarded as work-related.

13In this regard, it is not helpful to me to hear evidence, even from witnesses who have considerable expertise, that essentially speculates as to what may or may not have caused specific migrant farm workers to experience a heart attack. I am aware that a heart attack can arise from a multitude of factors, including the possibility that there may have been a stressor (or perhaps even an accident) in a work environment that caused or contributed to a fatal heart attack. But in this case, I have evidence before me that identifies specific Caribbean migrant farm workers for whom the cause of death is shown as being a heart attack. In my view, the relevant evidence is whether, in respect of the deaths of these specific migrant farm workers, there is evidence about the specific circumstances of these deaths to demonstrate that any or all of them were attributable to a workplace accident or perhaps were otherwise work-related. As this is a key issue as defined in the materials filed by the parties, this is evidence that I would have expected the applicant to lead in his case in chief.

14Accordingly, the applicant’s request to call reply evidence on this point is denied.