Sampson v. Durham Region Transit Commission, 2016 HRTO 1204

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Sampson

Applicant

-and-

Durham Region Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: September 13, 2016

Citation: 2016 HRTO 1204

Indexed as: Sampson v. Durham Region Transit Commission

WRITTEN SUBMISSIONS

Richard Sampson, Applicant

Self-represented

Durham Region Transit Commission, Respondent

Arend Wakeford, Counsel

Introduction

1This Application alleges discrimination with respect to services because of race, colour, ancestry and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2One of the allegations in the Application is that applicant’s personal characteristics connected to the above grounds were at least one of the reasons for which a bus operator mistreated the applicant after he boarded a bus. The applicant alleges that he was not smoking on the bus, showed the driver that he was not smoking, and yet the operator angrily and rudely treated him as if he were. The operator arranged for the police to evict the applicant from the bus.

3A hearing of evidence was held on two separate days. Ahead of the hearing, the applicant filed a witness statement for another passenger on the bus. At the hearing, the applicant said that he was unable to contact the witness to give him the hearing information. Consequently, the only people who testified and who were present when the applicant was denied service and escorted off the bus were the applicant and the bus operator.

4At the conclusion of the hearing of the parties’ evidence, the parties agreed to file written closing submissions. Prior to the date the applicant’s submissions were due, he wrote to the Tribunal, requesting to re-open his case because he had found the passenger for whom he filed a witness statement, and the passenger had provided his phone number and agreed to testify if the Tribunal would allow the applicant to adduce evidence through him.

5The submissions filed by the respondent merely state that “to reopen the case at this stage is unusual and inappropriate and the respondent objects to the request on this basis”, but the respondent pointed to no prejudice should the Tribunal allow the applicant’s request. The respondent argued that if the passenger is permitted to testify, then he do so in person.

analysis

6The Tribunal process should be an expeditious one, and there are few instances where parties have been permitted to adduce evidence after their case has closed. I therefore agree with the respondent that to do so in this matter would be unusual.

7There are several factors that should be considered before exercising discretion to reopen a case in order to hear additional evidence. The factors often depend upon the kind of a proceeding in which a party makes a request to reopen. In a criminal proceeding, there will be special considerations to protect the presumption of innocence and the importance of fairness to an accused. In a child protection or custody case, the best interests of the child will be influential in the discretion.

8Also relevant is the stage at which the request to reopen is made. Sanofi-Avantis Canada Inc. v. Apotex Inc., 2009 FC 294, is a case that dealt with a motion to reopen after the evidence was closed, but before submissions, the situation in this case. Sanofi-Aventis addressed more than whether the evidence was likely to change the result or whether it could have been available during the hearing of evidence had the party exercised due diligence, the factors common to criminal cases in particular. Sanofi-Avantis looked at five factors: relevance, necessity, reliability, due diligence and prejudice.

9The Statutory Powers and Procedures Act, RSO 1990, c S.22, the Code itself and the Tribunal’s Rules of Procedure give this Tribunal power to direct the process, including what evidence will be called, to ensure that the process is fair, just and expeditious, particularly in cases where a party is self-representing, as in this case. See Marne v. Aptco Capital Corporation, 2015 HRTO 588 (“Marne”). In Marne, the Tribunal referenced Hryniak v. Mauldin, 2014 SCC 7, a case dealing with summary judgment Rules under Ontario’s civil justice system, which stated, at paragraph 28:

The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found.

10In this case, I find that it would be fair and just to allow the applicant to call the passenger as a witness. I also suspect that the passenger’s testimony, in chief and cross, is unlikely to take more than an hour or two, and therefore unlikely to significantly lengthen the hearing.

11The evidence the applicant anticipates that will come from the passenger is that he saw the applicant enter the bus and then sit near him so that he would be able to confirm whether the applicant smoked on the bus. This is evidence that is relevant. It may turn out to be key evidence. It appears that the passenger will be impartial.

12Evidence from the passenger was not available at the time of the hearing because the applicant had lost his contact information. While this would appear to be the applicant’s fault, it also appears that the applicant could not have done anything to have found the passenger prior to his recent meeting by chance on the transit system.

13Any prejudice to the respondent arising from the fact that it has already called its witnesses could be remedied by allowing the respondent to cross-examine the witness. It could also recall its witnesses or call new witnesses to respond to new facts or issues arising from the passenger’s testimony that were not in his witness statement or different from his statement. The only real prejudice to the respondent would be the expense of preparation and attendance at a continued hearing. While unfortunate, when I balance that prejudice against the fact that the applicant had intended to call the witness, that he had provided a witness statement for him prior to the hearing, that he inadvertently lost the witness’ phone number, and that the witness may be a key witness, I find that it is fair to grant the applicant’s request in order to ensure a just adjudication of the facts.

order

14The applicant’s request to adduce new evidence through the passenger is granted.

next steps

15The Tribunal will schedule an in-person, half-day hearing for the evidence of the passenger. The respondent will be able to cross-examine him. The respondent will be permitted to call additional evidence in response to the passenger’s evidence, although it is not expected to do so, given that it prepared its witnesses, who have testified, on the assumption that the passenger would be present at the hearing and testify as indicated in the witness statement. To be on the safe side, the respondent might arrange to have the bus operator available.

16After the passenger has testified and the respondent adduced any evidence in response to his testimony, the Tribunal will set a timeline for the parties to file their written, final argument.