Tsehai v. Durham District School Board, 2015 HRTO 969

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Noah Tsehai

Applicant

-and-

Durham District School Board, John Bowyer,

Andrea Pemberton and Warren Palmer

Respondents

INTERIM DECISION

Adjudicator: Eva Nichols

Date: July 22, 2015

Citation: 2015 HRTO 969

Indexed as: Tsehai v. Durham District School Board

SUBMISSIONS

Noah Tsehai, Applicant

Osborne G. Barnwell, Counsel

Durham District School Board, John Bowyer, Andrea Pemberton, Warren Palmer, Respondents

Kathryn Bird, 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 race, disability, age and reprisal.

2A hearing in this matter began in Toronto on February 19, 2015, continued on June 23, 24, 25 and 30 and is scheduled to continue on September 29, October 6, 7 and 8 and December 1, 2 and 3, 2015.

3This Interim Decision is in response to the applicant’s oral request for an order presented to the Tribunal on June 30, 2015.

4The applicant requested that the Tribunal designate Ms. Akilah Haneef-Jabari, MSW, RSW, and a clinical social worker, as an expert witness. The specific expertise cited is quantitative and qualitative data analysis. The applicant submitted that, on the basis of this expertise, Ms. Haneef-Jabari will be able to provide the Tribunal with an opinion about data disclosed by the respondents.

THE BACKGROUND

5In response to a Form 10 Request for an Order during Proceedings (the “RFOP”), submitted to the Tribunal on April 7, 2015, I ordered the respondents in Interim Decision 2015 HRTO 616, dated May 12, 2015, to disclose a series of anonymized data regarding students, in addition to the applicant, who had been suspended, who had Behaviour Safety Plans, who had Individual Education Plans and/or who had been placed in the Behaviour Intervention Centre alternative program. The data were to be accompanied by colour photographs of the students attending Donald A. Wilson Secondary School during the 2011/12 and 2012/13 school years.

6I ordered the disclosure of this information on the grounds that it is arguably relevant in determining whether the applicant’s allegations regarding the link between race and/or disability and suspensions and other disciplinary interventions, as well as, placement in locally developed courses, rather than academic and applied courses with accommodations, have any validity.

7Neither the RFOP nor the Interim Decision addressed the way the applicant planned to utilize the disclosed information in supporting his allegations of discrimination.

8The respondents complied with the direction and disclosed the information ordered.

9On January 26, 2015, the applicant submitted a list of the witnesses that he intended to call including their will-say statements. Ms. Haneef-Jabari was listed as one of the proposed witnesses. Her will-say statement included the following statements:

• [Ms. Haneef-Jabari] is a personal friend of [the mother of the applicant] and has known the applicant since he was eight years old.

• She will testify that she accompanied [the applicant’s mother] to school meetings in 2013 to support the concerns regarding her son, the applicant.

• She will testify that she attended a meeting concerning the applicant on January 29, 2013.

• As an advocate for minority student rights, she will testify about what in her opinion has been a deliberate attempt by the Durham District School Board to stream minority children

• She will testify that she was present at a meeting held sometime in November 21, 2013 with the school board and witnessed a situation where she concluded that discrimination against the applicant was palpable.

THE APPLICANT’S SUBMISSIONS

10At the hearing, counsel for the applicant submitted the following reasons for the request:

• The Tribunal ordered the disclosure of the information on the grounds that it is arguably relevant.

• Counsel submitted that the disclosed data are highly relevant to the applicant’s case.

• The proposed witness has formal qualifications and experience in data entry and data analysis and is therefore qualified to be an expert witness in this case.

• However, drawing conclusions from the data is not particularly necessary in helping the Tribunal in determining the merits of the Application.

11With reference to the issue of necessity, counsel cited Nassiah v. Peel Regional Police Services Board, 2006, HRTO 18, which at paragraph 33 addressed the issue of necessity as follows:

Sopinka J. has explained that necessity is not to be judged by too strict a standard. Understood in this way, the difference between necessary on the one hand, and helpful, on the other, may be more apparent than real. With this understanding of the necessity criterion in mind, I consider it the appropriate standard to employ in this context. Human rights proceedings should not be lengthened by unnecessary evidence. I therefore employ the “necessary”, rather than the merely “helpful” standard in this decision. I further note that evidence may be necessary which serves the function of clarifying or contextualizing the issues in dispute.

12Counsel also cited Pearl v. Peel (Regional Municipality) Police Services Board, 2003 O.J. No. 2669, regarding opinion evidence in cases that refer to racial profiling. The Court in that case described the role of an expert as an individual who can provide the decision-maker with a ready-made inference based on scientific, medical, psychiatric, engineering or similar learning which the court can draw if certain identifying underlying facts are demonstrated to exist.

13At paragraph 40 in Pearl above, the Court stated that regardless of the expert witness’s opinion, determining whether factors in this case point to racial profiling is the adjudicator’s decision to make and he (the adjudicator) will not be unduly influenced by the expert’s opinion on that issue.

14Counsel concluded by stating that I am at liberty to reach my own conclusions despite the opinions of the expert. Further, that if I am of the view that the opinion is not necessary, then the tendered evidence “may go in as regular evidence.”

THE RESPONDENTS’ SUBMISSIONS

15Counsel for the respondents began by clarifying that this submission focuses solely on whether Ms. Jabari should be qualified as an expert witness and not on the admissibility of and, if admitted, the potential weight ascribed to Ms. Jabari’s written report.

16It is the respondents’ submission that appropriate interpretation of the data disclosed by the respondents and its probative value to the case at hand call for significant appropriate expertise. It is the respondents’ submission that Ms. Jabari is not qualified to analyze and interpret the data and is, therefore, not acceptable as an expert witness.

17Counsel referred to two HRTO decisions where an expert witness gave extensive evidence. These are B.C. v. Durham Catholic District School Board, 2011 HRTO 2062 and B.C. v. Durham Catholic District School Board, 2014 HRTO 42. Counsel reviewed the qualifications, experience, recognized expertise as well as the scientific research procedures relied upon in analyzing the available data by the expert witness in those cases, Dr. David Osher. She compared these to the c.v. of Ms. Jabari, who is a social worker, but claims no scientific research background, has no publications to her name and does not have the credentials needed to provide me, the adjudicator, with the expert information sought by the applicant.

18Counsel further referred to a recent Supreme Court of Canada decision, where there is a lengthy and detailed discussion of the current legal framework for expert opinion evidence (See, White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23, (“White”).

19A key point cited in this decision is the importance of the decision-maker being assured of the independence and impartiality of an expert on whose opinion they may rely in weighing the evidence put before them. In the section entitled The Expert’s Duty to the Court or the Tribunal, I noted the following relevant statement:

There is little controversy about the broad outlines of the expert witness’s duty to the court…the duty to provide independent assistance to the Court by way of objective unbiased opinion has been stated by common law courts around the world (paragraph 26).

20The same decision (White) at paragraph 30 also refers to the Ontario Rules of Civil Procedure as being the most succinct and complete statement of the expert’s duty to the court. It reads as follows:

4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. O. Reg. 438/08, s. 8.

ANALYSIS AND DECISION

21The Tribunal’s Rules do not contain a definition of expert witness. Instead, it relies on its own and the courts’ jurisprudence in this matter.

22The traditional test for admissibility of expert evidence has been established in R. v. Mohan (1994) 1994 CanLII 80 (SCC), 2 S.C.R. 9. The criteria for this test are as follows:

1. the evidence must be relevant;

2. the evidence must be necessary to assist the trier of fact;

3. there must be no exclusionary rule prohibiting receipt of the evidence; and

4. the evidence must be given by a properly qualified expert.

23In most cases, if I had agreed with counsel that the proposed evidence is arguably relevant and necessary, I would focus on the qualifications, experience and expertise of the proposed expert to determine whether he or she should be deemed an expert witness on whose opinion I should rely. This is because in most cases, those are the key factors.

24In White above, I note that the Supreme Court paid significant attention to the expert’s duty to present independent, objective and impartial evidence. I interpret this to mean that an obvious lack of full independence and impartiality can become the threshold for determining whether the expert’s opinion evidence should be admitted or not. In White above, at paragraph 29, the Court stated that “[i]t is the nature and extent of the interest or connection with the litigation or a party thereto which matters”.

25Further at paragraph 49, the Court wrote “an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court”.

26I note that the Tribunal has also expressed similar concerns in the past where a proposed expert witness acted as an advocate for a particular position. In Yousufi v. Toronto Police Services Board, 2009 HRTO 20, at paragraph 16, the Alternate Chair wrote that the proposed expert’s analysis indicates that “she has already formed conclusions based on the very issues that I must decide” Further in the same paragraph, she wrote that “In doing so (i.e., advocating for a specific position), she has taken on the mantle of the trier of fact and strayed outside the proper sphere of opinion evidence.”

27In reading Ms. Jabari’s will-say statement, as submitted in January 2015, she made it clear that she had made her opinion about the respondents’ actions before seeing any of the data disclosed by the respondents. Further, since she has acted as an advocate for the applicant and his mother during the period of time covered by this Application, she cannot be considered an independent and impartial expert witness.

28For these reasons, i.e., her past advocacy for the applicant, her ongoing involvement with the applicant and his family and her obvious lack of impartiality and independence, I do not in fact find it necessary to make a determination whether Ms. Jabari’s qualifications would, under other circumstances, potentially qualify her as an expert witness.

29I understand that Ms. Jabari is likely to be called as a witness by the applicant. This decision regarding her status as a proposed expert witness does not preclude her from being examined and cross-examined as a witness.

30My decision also does not preclude Ms. Jabari being asked to give a summary of her review of the data disclosed by the respondents. It is understood that any such information, including the categorization of the students whose photographs have been disclosed, and the relationship of their visible racial status with the specified criteria, such as suspensions and streaming, will be presented as the evidence of a lay witness.

31I am aware of the “odds ratio” cited at paragraphs 187 and 188 in B.C. v. Durham Catholic District School Board 2014 HRTO 42, as a way of measuring disparity between specific groups of individuals. Both parties will have the opportunity, should they choose to do so, to comment on the relevance of applying that approach in this case and the weight that I should ascribe to the data in this case.

ORDER

32The applicant’s request to qualify Ms. Akilah Haneef-Jabari as an expert witness is therefore denied.