Roch Longueépée v. University of Waterloo, 2014 HRTO 1828

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roch Longueépée Applicant

-and-

University of Waterloo Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: December 29, 2014 Citation: 2014 HRTO 1828 Indexed as: Longueépée v. University of Waterloo

WRITTEN SUBMISSIONS

Roch Longueépée, Applicant Anthony Tibbs, Counsel

University of Waterloo, Respondent Sian Williams, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability. The matter proceeded to a hearing on October 27 and 28, 2014. Tentative hearing dates of January 22 and 23, 2015 were set on October 28, 2014, pending confirmation from the respondent that its witnesses were available on these dates.

2On November 6, 2014, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking the following orders from the Tribunal:

a. An order compelling the respondent to produce as witnesses all members of the Admissions Committee who considered the applicant’s application for admission, including, but not limited to, Ken Lavigne and Samantha Murray;

b. An order requiring the respondent to produce all documents from or to the members of the Admissions Committee relating to the applicant’s application for admission;

c. An order excluding these witnesses from the hearing;

d. An order prohibiting these witnesses from discussing their testimony, other than with counsel as appropriate, prior to the hearing.

3The respondent responded to the RFOP by letter dated December 23, 2014. In that letter, the respondent asserted a claim of privilege over the communications between the members of the Admissions Committee. The respondent confirmed that seven people sat on the Admissions Committee, including two people on the respondent’s witness list: Samantha Murray and Eric Jardin. The respondent did not provide the names of the remaining five members of the Admissions Committee.

Decision

4The applicant has requested an order excluding witnesses. It is well-established that courts and tribunals have the discretionary power to exclude witnesses from the court or hearing room until such time as it is necessary for them to give their evidence, and, upon the request of a party, will normally grant such an order. The rationale for making such an exclusion order is as follows:

The purpose of excluding witnesses is to preserve a witness’ testimony in its original state. A witness listening to the evidence given by another may be influenced by the latter’s testimony, and accordingly change his evidence to conform with it. Also, by being present in the courtroom and listening to testimony prior to giving his evidence, he or she may be able to anticipate, and thereby reduce the effectiveness of, the cross-examination that will ultimately be faced. It may also facilitate collusion by allowing a witness to tailor the evidence to fit that of another. An order excluding witnesses seeks to eliminate this potential unfairness. Moreover, exclusion of witnesses may reveal earlier collusion. The similarity of language and phrases used may expose the fact that the witnesses had compared their version of events and memorized consistent stories: Asad v. Kinexus Bioinformatics, 2008 BCHRT 293 at paras. 753-754 and Sopinka, Lederman and Bryant: The Law of Evidence in Canada, 2nd ed. (Markham: Butterworths, 1999) at para. 16.14.

5An order excluding witnesses applies to the hearing room. There was no order excluding witnesses at the hearing on October 27 and 28, 2014. That order will be made when the hearing resumes; witnesses will be excluded from the hearing room until they testify. That order is not in effect today and does not prohibit witnesses from speaking with each other prior to the hearing. That said, credibility may be an issue in this case and, as a general rule, testimony is more credible when it has not been discussed between witnesses. That issue is best addressed by counsel for the respondent.

6The respondent’s claim of privilege must be determined before a decision can be made concerning the production of the internal communications between the members of the Admissions Committee. Similarly, the compellability of all of the members of the Admissions Committee should not be made in a factual vacuum; the production issue must be decided first. As such, the following directions are given.

directions

7The following directions are provided to the parties:

1. By January 16, 2015, the respondent must file its submissions to support its claim of privilege over the communications to and from the members of the Admissions Committee that considered the applicant’s application for admission. If the respondent is asserting a claim of privilege over the names of the people on the Admissions Committee, it should so advise and provide its submissions on this issue as well.

2. By January 30, 2015, the applicant must respond to the respondent’s submissions on privilege.

3. A decision on the production of documents from the Admissions Committee will be made following the receipt of these submissions.

4. A decision on the compellability of all seven members of the Admissions Committee will be made following the decision on production.

5. The hearing will not proceed on January 22 and 23, 2015. The Registrar will be in contact with the parties to set new continuation dates.

6. An order excluding witnesses will be made at the commencement of the hearing during the next scheduled dates. It is not in effect today.