HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Wayne Talos
Applicant
-and-
Grand Erie District School Board
Respondent
-and-
Ontario Human Rights Commission, Ontario Confederation of University
Faculty Associations and the Attorney General of Ontario
Intervenors
INTERIM DECISION
Adjudicator: Yola Grant
Indexed as: Talos v. Grand Erie District School Board
WRITTEN SUBMISSIONS
Wayne Talos, Applicant
James M. Melnick, Counsel
Grand Erie District School Board, Respondent
Richelle Pollard, Counsel
Ontario Human Rights Commission, Intervenor
Cathy Pike, Counsel
Ontario Confederation of University Faculty Associations, Intervenor
Emma Phillips, Counsel
Elementary Teachers’ Federation of Ontario, Intervenor
Kate Hughes, Counsel
Ontario English Catholic Teachers’ Association, Intervenor
Paul Cavalluzzo/Adrienne Telford, Counsel
Introduction
1The Application alleges that the respondent Grand Erie District School Board (“GEDSB”) breached s. 5(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on the basis of age when the applicant turned 65 because his health benefits ended.
2The issue to be determined by the Tribunal is whether or not s. 25 (2.1) of the Code contravenes the Charter.
3The constitutional question has prompted intervention by the Attorney General of Ontario (“AG”) and the Ontario Human Rights Commission (“OHRC”). By Case Assessment Direction dated September 25, 2014, the OHRC and AG were confirmed as intervenors with full party status.
4On March 3, 2015, the respondent GEDSB field a Statement of Delivery with the Tribunal that indicated that it delivered the report of its expert, Mr. Chaykowski, to the parties on February 26, 2015. That report, filed with the Tribunal, is entitled “The Ontario Labour Relations and Employment System and the Determination of the Provision of employee Benefits. On March 16, 2015, the OHRC filed a RFOP requesting an extension of time from the agreed upon date of April 16 to May 22 to permit the OHRC to obtain an expert’s report to respond to that of Mr. Chaykowski. The OHRC asserted that without an extension, it will not be in a position to file reply expert evidence on labour relations.
5The applicant consented to the request and argued in support of OHRC’s request as follows:
The nature of the report to be submitted speaks only to the labour relations aspects of Mr. Chaykowski’s report …It is anticipated that this report will include little by way of economic or statistical analysis, but will rather provide a framework for assessing the labour relations aspect of this legislation as it relates to case law and current labour practices. In short, this report will speak to, and take issue with, a discrete portion of the Chaykowski report.
6OCUFA was granted intervenor status in November 2014 and more recently, on March 18, 2015 OECTA and ETFO were granted intervenor status. OCUFA consented to the OHRC’s request for extension while the latter two intervenors did not make submissions on the RFOP.
7OHRC’s request for an extension is based on the following (a) until receipt of Mr. Chaykowski’s report, it did not know that it needed to respond to that opinion evidence and thus did not retain an expert in advance and (b) the expert it wishes to retain cannot meet the due date of April 16, 2015 that was agreed to in December 2014.
8Regarding delay and prejudice to the other parties, the OHRC submitted:
The extension will not delay the hearing and we do not believe that it will cause prejudice to the GEDSB or Attorney General, since our expert …will not be appearing before the Tribunal until July 14 or 15. If the extension is granted, the GEDSB and Attorney General will have almost two months to review our expert’s report and prepare for his cross-examination…. Our expert’s report is being tendered as reply evidence under s.1 of the Charter in response to the specific issues raised by Mr. Chaykowski in his report.
9In reply, the OHRC further clarified that it seeks to file a response on May 22 rather than on April 16 to the respondent’s defence and concerns over case-splitting, prejudice and raising new issues simply do not arise. Furthermore, the respondent Board and AG “will still have the unusual advantage of having a response to the report they have filed in support of their defence before their expert has to testify”. Finally, OHRC replied to the assertion regarding prejudice as follows:
Ontario asserts that since experts rely on evidence provided by fact witnesses, they are prejudiced by not having the expert report we wish to file before cross-examining the fact witnesses in this case, in case our expert relies upon those fact witnesses. But again, the substance of our proposed expert report is the Chaykowski report, and not the individual circumstances of Mr. Talos or the particular labour relations dynamic between the Board and the OSSTF.
10GEDSB’s asserted that there is a risk that its ability to address relevant issues may be compromised if the OHRC is permitted to submit “reply” evidence after the commencement of the hearing and that “the contents of the report ought not to have come as a surprise to the OHRC and the Applicant” as they were “well aware that the Board’s expert would be speaking