HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Philton Moore Applicant
-and-
Ferro & Company, Lou Ferro and Ellen Helden Respondents
INTERIM DECISION
Adjudicator: Mark Hart Date: June 17, 2014 Citation: 2014 HRTO 889 Indexed as: Moore v. Ferro & Company
WRITTEN SUBMISSIONS
Philton Moore, Applicant Self-represented
Ferro & Company, Lou Ferro and Ellen Helden, Respondents Stacey Ball, Counsel
1This Interim Decision is issued further to my Interim Decision in this matter dated March 7, 2014, whereby the hearing in this matter was adjourned for medical reasons related to the health of the personal respondent Lou Ferro, and to address the applicant’s request for bifurcation of the hearing.
2In my Interim Decision dated March 7, 2014, the respondents were directed to advise the Tribunal and the applicant regarding when it was expected that Mr. Ferro would be medically able to attend the hearing, and the parties were directed to consult with each other to provide alternate proposed hearing dates in accordance with this expectation.
3By letter dated March 21, 2014, counsel for the respondents advised that Mr. Ferro’s medical treatment was ongoing and his medical condition was life-threatening. It was stated that there was no exact date when Mr. Ferro was expected to return to regular attendance at his office or in a courtroom as a witness or litigator. It was stated that a particular procedure was scheduled to be completed by the fall, likely September, at which time the need for more invasive procedures would be medically assessed. As a result, counsel requested that the issue of continuation of this proceeding be explored in early fall.
4By e-mail correspondence dated March 25, 2014, the applicant requested that the Tribunal proceed to hear the Application on issues that did not involve Mr. Ferro, which were stated to be the issues arising from interviews that the applicant attended in the period from January to June 2011 and the interview which the applicant was invited to attend in August 2011 (the “interview issues”). It was stated that Mr. Ferro’s attendance was only required in relation to issues arising from correspondence with the applicant subsequent to September 13, 2011 (the “post-interview issues”).
5Counsel for the respondents responded to this request on April 2, 2014, objecting to the bifurcation of the hearing, primarily on the basis that Mr. Ferro was not only a personal respondent with direct involvement in the post-interview issues, but also was the instructing representative for the respondent law firm which was alleged to be liable for the allegations pertaining to the earlier interview issues.
6On April 25, 2014, the applicant formalized his request for bifurcation by filing a Request for Order, seeking bifurcation of the hearing to address the interview issues and the post-interview issues separately, and that the first phase of the hearing be scheduled for September 2014.
7On April 30, 2014, the respondents filed a Response to Request for Order objecting to the bifurcation of the hearing.
8The applicant filed written submissions in reply on May 2, 2014, and further written submissions were received from both parties on May 5, 2014.
9I will start by observing that bifurcation of a hearing, particularly bifurcation of the hearing to deal separately with allegations of potential liability for the respondents as opposed to bifurcation as between liability and remedy, is a highly discretionary decision that will be granted in exceptional or extraordinary circumstances, especially where one of the parties objects.
10Both parties are in agreement as to a non-exhaustive list of factors to be considered in the exercise of this discretion, as set out by the Court in General Refractories Co. of Canada v. Venturdyne Ltd. [2001] O.J. No. 746 (S.J.) at para. 16, which include: whether the issues for the first trial are relatively straightforward; the extent to which the issues proposed for the first trial are interwoven with those remaining for the second; whether a decision at the first trial is likely to put an end to the action altogether, significantly narrow the issues for the second trial or significantly increase the likelihood of settlement; the extent to which the parties have already devoted resources to all of the issues; the timing of the motion and the possibility of delay; any advantage or prejudice the parties are likely to experience; and whether the motion is brought on consent or over the objection of one or more of the parties.
11I note that in C.M.G. v. R.G., 2013 ONSC 961, the Court relied upon the factors identified in the General Refractories decision, concluding that “the focus of these questions on expediency does not displace fairness and justice as the dominant considerations” (at para. 17). This general statement accords with the overriding principle guiding the Tribunal in its decisions, which is “to provide for the fair, just and expeditious resolution of any matter before it”: see Rule 1.7.
12In my view, the overriding considerations in deciding the applicant’s request relate to the tension between the need for as expeditious a resolution of this matter as possible without undue delay and Mr. Ferro’s right as a personal respondent, witness and instructing representative to attend and participate in the hearing. In my view, the applicant’s focus only on Mr. Ferro’s involvement as a witness and personal respondent in relation to allegations made directly against him misses the mark in relation to Mr. Ferro’s other role in this proceeding as the principal and instructing representative for his own law firm, which is potentially liable in relation to all allegations raised by the applicant. While the applicant is correct in stating that this is an issue of vicarious or deemed liability pursuant to s. 46.3 of the Code, the principal and instructing representative of the respondent law firm in my view has a clear interest in the conduct of the hearing and the examination and cross-examination of witnesses pertaining to the law firm’s potential liability. In my view, at this juncture, it would neither be fair nor just for any part of the proceeding that could expose the respondent law firm to potential liability to proceed at a time when Mr. Ferro is unable to attend or participate for medical reasons.
13Having said that, I am concerned about the current lack of clarity regarding when Mr. Ferro may be able to participate in this proceeding and the impact of further delay on all parties. While the applicant frames his concerns in relation to a delay of three or more years even if the hearing were to proceed in September 2014, I note that the Application was not filed until September 2012, some 20 months after the applicant’s first interview and roughly a year after it became clear that he would not be hired. I further note that this matter originally was scheduled to be heard commencing in January 2014 and would not have been completed on the scheduled dates, and was then re-scheduled to March 2014. As a result, in my view, the delay in proceeding with the hearing that has been occasioned by Mr. Ferro’s medical condition is more accurately measured from March 2014, resulting in a delay of six months if the hearing were to proceed in September, or nine months if the hearing were to proceed by the end of this year. I also note that by the time the hearing needed to be adjourned in March 2014, the parties already had filed their pre-hearing materials, including witness lists, witness statements and documents. So while there inevitably is an erosion of witness memory the longer a hearing proceeds after the events at issue, in my view the extent of any such erosion of memory attributable to Mr. Ferro’s medical condition is likely to be relatively modest and does not outweigh the considerations arising from Mr. Ferro’s circumstances and his role not only as a personal respondent and witness, but overall as the principal and instructing representative for the respondent law firm.
14Accordingly, I find that it would not be fair or just to grant the applicant’s request for bifurcation of the hearing at this time. Having said that, I will briefly address the factors identified in the General Refractories decision, to the extent they are relevant. While I do not regard the issues in relation to the interview issues to be “relatively straightforward”, in my view this factor is of little consequence here. I generally agree with the applicant that the interview issues are not significantly interwoven with the post-interview issues, but do not rule out the potential for Mr. Ferro to have some relevant evidence to provide in relation to the interview issues, despite not having been directly involved in the interview process. But once again, to observe that the issues are not significantly interwoven and that Mr. Ferro was not directly involved in the interview process is only to observe that Mr. Ferro may not be a particularly significant witness in relation to these issues and may not be liable as a personal respondent. It does not address the issue I have identified above as to Mr. Ferro’s overarching role in this proceeding as the principal and instructing representative of the respondent law firm.
15A decision in relation to the interview issues would not put an end to the Application altogether, would not narrow the matters to be determined in relation to the post-interview issues, and in my view is unlikely to significantly increase the likelihood of settlement. The parties already have devoted resources to all of the issues in this proceeding, which in my view militates against bifurcation. The timing of the motion and the possibility of delay I have already addressed above, and will re-visit below. I also already have addressed the relative advantage and prejudice to the parties. And clearly the request for bifurcation is opposed by the respondents.
16For all of the foregoing reasons, the applicant’s request for bifurcation of the hearing is denied at this time. That being said, the hearing in this matter cannot be delayed indefinitely. Accordingly, I am hereby establishing the following process in order to move this matter forward. By no later than September 30, 2014, Mr. Ferro is directed to serve and file a medical report setting out his prognosis as to when he reasonably can be expected to attend and participate in the hearing, and whether any accommodations are required in order to facilitate his attendance and participation. This medical report does not need to disclose Mr. Ferro’s diagnosis or provide any detailed information about treatment, beyond what may be required in order to understand the prognosis. If Mr. Ferro’s prognosis indicates that he will be able to attend and participate in the hearing before the end of this year, then hearing dates will be scheduled with a view to concluding this matter at the earliest time. On the other hand, if Mr. Ferro’s medical condition continues to render him unable to attend or participate in the hearing beyond the end of this year, then the applicant may renew his request for bifurcation.
ORDER
17For all of the foregoing reasons, I hereby make the following order:
a. The applicant’s request for bifurcation of the hearing is denied at this time;
b. By no later than September 30, 2014, Mr. Ferro is directed to serve and file a medical report setting out his prognosis as to when he reasonably can be expected to attend and participate in the hearing, and whether any accommodations are required in order to facilitate his attendance and participation;
c. If Mr. Ferro’s prognosis indicates that he will be able to attend and participate in the hearing before the end of this year, then hearing dates will be scheduled with a view to concluding this matter at the earliest time;
d. On the other hand, if Mr. Ferro’s medical condition continues to render him unable to attend or participate in the hearing beyond the end of this year, then the applicant may renew his request for bifurcation.
Dated at Toronto, this 17th day of June, 2014.
“Signed by”
__________________________________
Mark Hart Vice-chair