Selwyn Pieters v. The Law Society of Upper Canada, Omar Hartman, and Robert Lapper, 2017 HRTO 1251

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Selwyn Pieters

Applicant

-and-

The Law Society of Upper Canada, Omar Hartman, and Robert Lapper

Respondents

interim DECISION

Adjudicator: Michael Gottheil

Date: September 22, 2017

Citation: 2017 HRTO 1251

Indexed as: Pieters v. Law Society of Upper Canada

1This is an Application brought under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The Application alleges discrimination with respect to goods, services and facilities on the grounds of race, colour and ethnic origin.

2The hearing in this matter was originally scheduled to take place on July 20 and 21, 2017, but was adjourned as a result of personal circumstances of the applicant and his key witness. The hearing is now scheduled to begin on October 31 and continue on November 1, 2017. This Interim Decision addresses a number of outstanding requests filed by the applicant in a Request for Order During Proceedings (Form 10) filed on June 30, 2017 and in subsequent correspondence.

EXPANTION OF SCOPE OF APPLICATION, AND REQUEST TO TRIFURCATE HEARING

3Following the Tribunal’s Interim Decision dated June 7, 2017, the applicant requested that the scope of the case be widened to investigate systemic racism within the respondent Law Society of Upper Canada (“LSUC”), and to examine the institution “from the top down.” In this context the applicant also requested that the hearing be trifurcated, that is, heard in phases with the applicant’s and respondents’ evidence organized around particular issues. The applicant set out an order of proceeding that included a number of expert and fact witnesses he proposed to call. The respondents opposed these requests.

4First, the respondents submit that the Application as filed involves an incident on July 5, 2016 when the applicant attempted to enter the LSUC premises, and the respondents’ subsequent investigation of his complaint. They strongly oppose the expansion of the scope of the application given the lateness of such a request. Second, the respondents argue that the applicant has filed no particulars that support his request which they say amounts to broad and generalized allegations that there is systemic and institutional racial discrimination within the LSUC. Third, in regards to the request to trifurcate the hearing, since they oppose the expansion of the scope, there is no justification in departing from the normal procedure where the applicant would call his case, followed by the respondents calling their witnesses.

5I agree with the respondents’ position. The Application was filed close to a year ago. It alleged that the applicant experienced discrimination when he entered the LSUC premises on July 5, 2016. He alleged that the actions of the respondent Omar Hartman were tainted by discrimination, as were the actions of the respondent Robert Lapper in his subsequent investigation. While the applicant alleges institutional racism and inherent anti-Black discrimination, that allegation was always in relation to the specific incidents set out in the Application. The applicant provides no reason why he waited almost a year to expand the scope of the Application, nor does he explain how investigating the respondent LSUC “from the top down” relates to the incident on July 5, 2016 and the subsequent investigation. As I said in my June 7, 2017 Interim Decision, I accept that the applicant claims that what he experienced on July 5, 2016, and during the subsequent investigation were a result of, among other things, institutional racism and inherent anti-black bias. I also accept that the applicant is alleging that there is systemic anti-Black racism within the LSUC. However, in accordance with the Tribunal’s Rules, and as a matter of fairness, the applicant has an obligation to plead the material facts that set out the scope of his evidence and allegations, and to do so in a timely manner. Apart from requesting disclosure of material related to a report on barriers faced by racialized individuals seeking to enter the legal profession, he has not pleaded material facts that would support this current request to expand the scope of the Application, such that it would become a broad and generalized inquiry into the LSUC. The applicant may wish to establish that what he experienced on July 5, 2016 and in the subsequent investigation was a result of systemic racism and institutional bias, but the case, and the evidence the parties will be entitled to call will be limited to the facts they have pleaded.

6Given this finding, I do not feel it would be necessary or appropriate to trifurcate the hearing as requested by the applicant.

REQUEST TO INTRODUCE EXPERT EVIDENCE

7The applicant seeks to introduce expert evidence from Drs. Kwayne Mackenzie and Nicholas Rule. The applicant had asked the respondents to consent to the introduction into evidence of an article by Dr. Mackenzie on institutional racism, and Dr. Rule on perceptions and stigmatization of Black males. The respondents refused. The applicant now makes a request to call Drs. Mackenzie and Rule to give expert evidence on the matters dealt with in their respective articles.

8The respondents opposed this request, on the basis that the applicant has not complied with the Tribunal’s rules for calling experts, including the submission of a C.V. and expert witness reports. The respondents also argue that the proposed evidence (assuming it is what is contained in the articles) is not relevant.

9In my view, without expert reports or witness statements from Drs Mackenzie and Rule, it is unclear how, or to what extent their evidence would be relevant to the matters to be decided in this Application. For example, it is not clear whether the expert evidence is being proposed to establish that institutional racism and anti-Black stigmatization exists in our society, or the experts will provide opinions on the specifics of this case.

10If it is the former, the Tribunal has found that institutional racism, racial profiling and inherent bias and stigmatization exists in society, and does not require general evidence of such. The applicant is entitled to submit the articles of Drs. Mackenzie and Rule as authorities in closing argument, and the parties may make submissions on the applicability of those authorities. If the applicant is seeking to introduce the expert evidence so that Drs. Mackenzie and Rule can offer their opinion on the specific issues in dispute, then I am unable to grant his request. As the respondents point out, the applicant had not complied with the requirements of Rule 17 in a timely manner, or at all. Nor has he offered any explanation of why he has not complied with the requirements of his obligations to provide expert reports and witness statements. As noted previously, this Application was filed close to one year ago. If the applicant wished to call expert evidence, there is no apparent reason he could not have filed witness statements and expert reports in a timely way. If I were to allow the applicant to call this evidence, the respondents would be entitled to receive expert reports and may wish to retain their own experts. This would result in significant delay in these proceedings and, as I have noted, with no clear understanding of the relevance or probative value of this area of evidence. In the circumstances, I am not prepared to waive the obligations of the Tribunal Rules which provide for a level of fairness to all parties involved in proceedings, and allows the Tribunal to manage the conduct of cases.

OTHER WITNESSES

11The applicant wrote the respondents shortly before the hearing was to commence in July, to advise that he was considering calling a number of LSUC members who would speak about their personal experiences entering the LSUC premises. The respondents object on the basis that the applicant has not provided witness statements and had not complied with the timelines for identifying witnesses as required by the Tribunal’s Rules. The respondents also object on the basis that such evidence was entirely anecdotal and impressionistic, and therefore of no probative value. They argue that if the applicant was permitted to call this kind of evidence the respondents might call its own witnesses to give anecdotal evidence, and in the end, all of this evidence would be of no value to the Tribunal.

12I agree with the respondents. Not only would the experience of a few of the more than 50,000 licensees be unhelpful, although he has provided a number of names, the applicant has not identified who his proposed witnesses are, whether they are individuals who are members of racialized communities, whether they entered with expired membership cards, when they sought to enter, and which security guard was on duty at the time they entered the premises. Again, this application was filed over a year ago, and none of the evidence the applicant is seeking to introduce was unavailable at the time the Application was filed, or at the time the applicant was required to submit his witness lists and witness statements. Further, without witness statements, it is impossible to determine how or why this evidence would be probative.

13The applicant also indicated that he wishes to call Professor Joanne St. Lewis, a bencher of the LSUC, who apparently provided anti-racism training to LSUC staff subsequent to July 5, 2016. The respondents object to the calling of Professor St. Lewis because, as with other proposed witnesses, the applicant failed to comply with the rules and time limits for calling witnesses. They also question the relevance of Professor St. Lewis’ proposed evidence.

14Given that the applicant has failed to provide a witness statement for Professor St. Lewis, or provide any material facts setting out what the applicant suggests she did or why it is relevant, it is impossible for me to determine whether there is a sufficient basis to permit him to call Professor St. Lewis, notwithstanding his non-compliance with the Tribunal’s Rules.

15In the circumstances, I am not prepared to grant the applicant’s request to call Professor St. Lewis.

RECORDING OF PROCEEDINGS

16The applicant also requested that the Tribunal record the proceedings. The respondents did not oppose the request. The Tribunal will activate its digital recording system. However, the Tribunal will not have the hearing transcribed, and will not pause during the proceeding to review testimony of witnesses or submissions. The recording will not constitute the record of the proceedings and the Tribunal does not warrant that the recordings will be complete. Also, the parties may not broadcast or re-broadcast the recordings.

ORDER

17For the reason above, the applicant’s requests are denied, except that the Tribunal will record the proceedings in accordance with paragraph 16 above.