Patterson v. Toronto District School Board, 2014 HRTO 66

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andre Patterson

Applicant

-and-

Toronto District School Board and Donna Quan

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: January 16, 2014

Citation: 2014 HRTO 66

Indexed as: Patterson v. Toronto District School Board

1This case is scheduled for hearing beginning January 20, 21 and 22, 2014. The parties appear to have largely completed their productions.

2The applicant has filed a Request for Order During Proceedings (“Request”) . In a Case Assessment Direction issued on January 10, 2014 I made some preliminary observations about the Request and deferred ruling until the hearing for a number of essentially practical reasons.

3In the Interim the respondents responded to the Request asserting that the material request has largely already been provided or does not exist. The respondents also indicate that some of the material sought by the applicant although produced along with other materials is not relevant. These issues will be addressed at the appropriate time in the hearing.

4In light of the respondents response to the Request the applicant has requested a ruling on the outstanding issues in reply submissions filed over the weekend. The parties appear to be agreed that the issues they are unable to resolve themselves should be addressed before the hearing. Accordingly I provide the following determinations on the Request.

5As regards the bulk of the Request the Tribunal will not order the production of materials that do not exist and accordingly the Request is in large part denied at this stage.

6The remaining element of the applicant’s Request that remains contentious is for the production of any human rights complaint or application made by each of the respondents’ witnesses or any such claim made against them.

7The respondent argues that the requests are inappropriate and any such evidence would be irrelevant to the issues in dispute. I agree. The applicant argues that any such materials are arguably relevant to the credibility of two or more of the respondents’ witnesses. At this stage and based on the submissions of the parties it is not at all clear how these materials to the extent that they exist would go to a witness’ credibility. To put it another way how does the fact that an individual was identified in a complaint or perhaps filed a complaint go to their credibility?

8This aspect of the Request is denied. I am not satisfied based on the material before that it is necessary to the fair just and expeditious adjudication of this Application. At the end of the day it is not clear to me how a record of unproved allegations made about or by a witness to this proceeding can be probative of anything including credibility.

Other Matters

9The respondents complain that the will-say of Dr. Spence is incomplete. The will-say was directed by the Tribunal when advised that this witness was a reluctant one and accordingly no will say was provided. I have reviewed the will-say provided and by the applicant in accordance with my Direction and it seems to me reasonably fulsome in all of the circumstances. It does not speak to the impact of the “incidents” on the applicant as argued by the respondents. I would observe at this stage that this kind of evidence is more likely to have weight coming from the applicant and in any event it is likely evidence that would be difficult to obtain from a reluctant witness.

10I do observe that as with several of the respondents’ will says the applicant’s witness statements do not include any recitation of the witness’ background and education etc. To the extent that such evidence will be lead the applicant is directed to reduce this evidence to writing for adoption by the various witnesses.

11I note as well that the applicant has provided more witness statements than witnesses. As I understand it the applicant, Ms. Stephanie Payne, Dr. Spence and Robin Fraser.

12I am not seized of this case.