Amazan v. Toronto Catholic District School Board, 2017 HRTO 1336

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Félix Amazan Applicant

-and-

Toronto Catholic District School Board, Norma Rios, and Sylvie Talarico Respondents

-and-

CUPE Local 1328 Intervenor

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: October 10, 2017 Citation: 2017 HRTO 1336 Indexed as: Amazan v. Toronto Catholic District School Board

APPEARANCES

Felix Amazan, Applicant Self-represented

Toronto Catholic District School Board, Norma Rios, and Sylvie Talarico, Melissa Eldridge, Counsel

CUPE Local 1328, Intervenor Anne Gregory, Counsel

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 employment because of race, colour, ancestry, place of origin and ethnic origin.

2This Interim Decision addresses the issue of whether the applicant shall be permitted to continue to cross-examine a witness, John Shain, and also four Requests for Orders During Proceeding filed by the applicant.

Cross-examination of Mr. Shain

3The background to this issue is set out in a Case Assessment Direction I issued on June 8, 2017 as follows

[1] In 2017 HRTO 444, dated April 21, 2017, the Tribunal addressed a request filed by the applicant to require several individuals to testify. In that Interim Decision, I determined that the evidence of John Shain, Corrado Maltese and Detective Lynn Beveridge would assist the Tribunal in understanding the actions of Sylvie Talarico, an individual respondent, regarding the incident in question in this matter on March 6, 2013. I ordered the organizational respondent to present Mr. Shain and Mr. Maltese pursuant to Rule 1.7(k) of the Tribunal’s Rules of Procedure (the “Rules”) because they were reasonably within the organizational respondent’s control. Detective Beveridge is not reasonably within the control of the respondents; therefore, the Rules do not permit the Tribunal to order the respondents to produce her as a witness, although her evidence would be useful.

[2] The hearing of this matter continued on May 16, 2017 and Mr. Shain attended and testified. Mr. Shain’s evidence in chief was fairly brief and concluded in the morning. The applicant cross-examined Mr. Shain for the remainder of the day. At the end of the hearing day, 5 p.m., the applicant stated that he wished to ask Mr. Shain questions about documents the applicant had not been able to locate during his cross-examination, including a provision of the Education Act that he believed makes sections regarding the suspension of students applicable to teachers. Mr. Shain had travelled from outside of Toronto to attend the hearing and had not made arrangements to attend on May 17, 2017. In the circumstances, where it was unclear whether further cross-examination by the applicant would address relevant issues in this matter, I ruled that Mr. Shain was excused for the time being and was not required to attend the hearing on May 17, 2017. I noted, however, that Mr. Shain may be recalled if the documents in question disclose appropriate areas for cross-examination. I directed the applicant to locate the documents he wished to put to Mr. Shain and that the parties could make submissions regarding whether continued cross-examination of Mr. Shain was appropriate at the commencement of the hearing on May 17, 2017.

[3] At the re-commencement of the hearing on May 17, 2017, the applicant submitted that he had been unable, in the time available to him overnight, to locate the provisions of the Education Act regarding suspension of teachers. The applicant also submitted that he had other cross-examination questions to put to Mr. Shain not related to any documents. The respondents submitted that Mr. Shain is retired and does not reside in Toronto. The respondents submitted that Mr. Shain’s testimony in chief was about 30-40 minutes in duration, but the applicant’s cross-examination was lengthy and went beyond the scope of the Application or the areas identified in the Tribunal’s Interim Decision of April 21, 2017 for which Mr. Shain was produced. The respondents submitted that the applicant’s purpose seemed to be to inconvenience their witnesses. The respondents submitted that the applicant did not produce the additional documents on which he wished to cross-examine Mr. Shain and did not identify the areas regarding which he wished to question Mr. Shain. The respondents submitted that the Tribunal had been very permissive with respect to the applicant’s cross-examination of Mr. Shain, but that further cross-examination was not appropriate. The intervenor submitted that whether it was inappropriate for Ms. Talarico to have interviewed students without their parents’ permission was one of the issues regarding which the applicant purported to rely on the Education Act. The intervenor submitted that whether parental permission was required to interview students was not a new issue, but the applicant had not previously indicated that it was addressed in the Education Act. Nonetheless, the applicant had had ample time to locate the relevant provision, if any, but had not done so. The intervenor submitted that the in the circumstances the applicant should not be indulged. In reply, the applicant submitted that the respondents were constantly trying to limit his cross-examination and complaining about the scope of the Application. The applicant submitted that Mr. Shain could not answer whether the Education Act prohibited a principal from interviewing students without their parents’ permission and he was trying to find the truth in the Education Act.

[4] Following the parties’ submissions I stated that I was not convinced that further cross-examination of Mr. Shain would be fruitful. In the Interim Decision of April 21, 2017, I directed the organizational respondent to produce Mr. Shain because it appeared that his evidence would assist in understanding Mr. Talarico’s actions on March 6, 2017. The respondents are correct that the applicant’s cross-examination often went well beyond clarifying Mr. Talarico’s evidence and delved into areas outside the scope of the Application. Cross-examination is indeed a tool for uncovering the truth, as the applicant noted during the hearing, but it is not unlimited. Cross-examination questions must address the issues in dispute, i.e., they must be relevant. In this case, the issues in dispute are the incident of March 6, 2013 and the actions of the respondents immediately after that incident. Pursuant to Rule 1.7(n), the Tribunal may limit the evidence or submissions on any issue. Accordingly, I ruled that the applicant would be afforded a further opportunity to identify the documents on which he wishes to cross-examine Mr. Shain and to identify the further areas of questioning he wishes to pursue with Mr. Shain. The purpose of this Case Assessment Direction is to set deadlines and give the parties directions regarding these submissions.

DIRECTION

[5] The Tribunal directs as follows:

1. Within 21 days of the date of this Case Assessment Direction, the applicant shall file with the Tribunal and deliver to the respondents and the intervenor submissions regarding the further cross-examination of Mr. Shain he wishes to conduct. The applicant’s submissions must

a. Identify any document about which he wishes to question Mr. Shain and state where in his productions the documents are located. If any such documents have not been produced, then the applicant must provide the Tribunal, the respondent and intervenor with copies;

b. Identify any section of the Education Act about which he wishes to question Mr. Shain;

c. Explain how the documents and sections of the Education Act about which he wishes to question Mr. Shain are relevant to the matters at issue in this proceeding;

d. Identify the remaining subjects or areas about which he wishes to question Mr. Shain, along with submissions explaining how these subjects are relevant to the matters at issue in this proceeding;

2. Within 14 days of receiving the applicant’s submission described in paragraph 5(1), above, the respondents and intervenor shall file submissions responding to the applicant’s submissions;

3. Within 14 days of receiving the respondents’ and intervenor’s submissions, the applicant may file submission in reply; and,

4. In their submissions, the parties should address whether, assuming the applicant is permitted to continue his cross-examination of Mr. Shain, it would be appropriate to set a time limit on cross-examination and whether it would be appropriate to allow Mr. Shain to continue his testimony by teleconference or video teleconference.

Submissions

4The applicant filed submissions in response to the Case Assessment Direction on June 29, 2017. The respondents filed their submissions on July 13, 2017 and the applicant filed reply submissions on July 27, 2017.

5The applicant's submissions do not address the requirements of the Case Assessment Direction. Rather, the applicant sets out a series of issues he has with the conduct of the hearing and attributes several perceived errors and misconduct to me and the other parties. The applicant did, however, submit another document in which he describes several documents about which he wishes to question Mr. Shain. These documents include several e-mail messages from parents of students who were present during the incident in question on March 6, 2013. Several of these e-mail messages have been entered as Exhibit 3. Several of the other e-mail messages identified by the applicant, i.e., from “Philbert’s mom", from a Ms. Abou-Jaoude and from a Mr. Bellissimo, are not in evidence and do not appear to have been filed with the Tribunal previously. The applicant provided a transcription of the messages from Philbert's parents and Mr. Bellissimo in his reply submissions. The applicant also identified an e-mail message from a Ms. Bogolyubova, whose child was also present during the incident in question. The applicant had intended to present Ms. Bogolyubova as a witness and an e-mail message from her to the applicant had been transcribed into her witness statement. A copy of the original message has not been produced. In the message, Ms. Bogolyubova described her child's recollection of the interaction between the applicant and Ms. Rios on March 6, 2013. I declined to allow this document into evidence, since it is effectively double hearsay. The applicant also wished to question Mr. Shain regarding e-mail messages from a Cecil Subryan, but as the applicant noted I have already ruled that these messages could not be put before the witness.

6The applicant also identified the Police/School Board Protocol regarding questioning minor students, a copy of which he submitted with his reply submissions. The applicant also identified Exhibit 21, which is an e-mail exchange between Mr. Shain and Detective Beveridge. The applicant seeks to cross-examine on the portion of this message that the respondent school Board and Toronto Police Service have been unable to locate. The applicant also wishes to question Mr. Shain about Exhibit 23, an e-mail message from Mr. Shain to the applicant on March 18, 2013, as well as Exhibit 24, an e-mail message from a Mr. Leong to Mr. Shain on March 6, 2013. The applicant also identified the following documents for cross-examination:

• e-mail correspondence between Ms. Rios and Detective Beveridge on November 13, 2013;

• a collective agreement page regarding Respectful Workplace;

• Education Act provisions regarding interviewing of all witnesses; and

• Education Act sections 310-340 regarding suspensions.

7With respect to the Education Act, the applicant submitted that sections 310-340, which deal with the suspension of students, should have applied in the circumstances of this case. The applicant contends that Mr. Shain’s actionsamounted to a violation of the Education Act.

8The applicant submitted that he wishes to cross-examine Mr. Shain to establish that his actions were premeditated to remove the applicant from the school so that Mr. Shain, Ms. Talarico and Mr. Maltese could fabricate evidence against the applicant.

9The respondents submitted that no further cross-examination of Mr. Shain should be permitted. The respondents submitted that the applicant failed to identify the documents about which he wishes to question Mr. Shain and did not indicate the sections of the Education Act about which he wishes to question Mr. Shain. The respondents submitted that the applicant also did not identify any remaining subject areas about which he wished to cross-examine Mr. Shain. The respondents submitted that, instead, the applicant made arguments about the March 6, 2013 incident and accused the respondent school Board of fabricating evidence and collusion. The respondents submitted that the applicant has stated that he hopes Mr. Shain will eventually incriminate himself or provide evidence the applicant has not been able to adduce himself.

10The applicant's main submissions in reply again largely consisted of complaints he has about the conduct of the hearing and the other parties that did not address either the Case Assessment Direction or the respondents’ submission. The applicant submitted an updated document list setting of documents about which he wishes to cross-examine Mr. Shain. The applicant provided a copy of the Police/School Board Protocol in place between the Toronto Police Service and several school boards, including the respondent School Board, as well as a document setting out several of the e-mail messages about which he wishes to question Mr. Shain.

11In his updated document list, the applicant submitted that he wishes to establish that Mr. Shain acted contrary to the Education Act by not providing the reasons for suspending the applicant. The applicant submitted that this allowed Mr. Shain to "taint" Exhibit 18, which the applicant states were Ms. Talarico's handwritten notes. The applicant also submitted that he intended to establish that his suspension was contrary to the Education Act and that Ms. Talarico did not follow the Police/School Board Protocol with respect to interviewing students. The applicant also stated that he wishes to establish that Ms. Talarico manipulated the students she interviewed. He states that he has never been provided with Ms. Talarico's notes of her interviews with the students on March 6, 2013. The applicant states that he also wishes to put Ms. Bogolyubova’s evidence to Mr. Shain, which he states the respondents, intervenor and I "lost" on May 16, 2017. The applicant describes this document as one of his best pieces of evidence. The applicant states that he wishes to establish in cross-examination that his removal from school was a disciplinary suspension and that Mr. Shain acted on preconceived ideas about the applicant. The applicant also submitted, without elaboration that he wishes to cross-examine on the following documents:

• November 13, 2013 e-mail correspondence between Ms. Rios and Detective Beveridge;

• e-mail correspondence

• exhibits 1-24; and,

• Mr. Subryan’s e-mail message.

Analysis and decision

12In this case, it was the Tribunal that raised the issue of whether the applicant should be permitted to continue his cross-examination of Mr. Shain. In his submissions, the applicant has questioned my authority to do so, and suggested that I am acting on behalf of the respondents. However, it is clear the Tribunal is authorized to act on its own initiative to manage proceedings, including limiting cross-examination.

13Section 23 (2) of the Statutory Power Procedures Act states as follows:

A tribunal may reasonably limit further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.

14Section 40 of the Code stats as follows:

The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

15Section 41 of the Code states as follows:

This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.

16Rule A4.1 of the Social Justice Tribunals Ontario’s Common Rules states as follows:

The tribunal may exercise any of its powers at the request of a party, or on its own initiative, except where otherwise provided.

17Rule 1.7(n) of the Tribunal’s Rules of Procedure states as follows:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

limit the evidence or submissions on any issue

18The Tribunal has exercised its authority to limit cross-examination on a number of occasions. See, for example McDonald v. CAA South Central Ontario, 2016 HRTO 186, and DeFreitas v. Ontario Public Service Employees Union, 2011 HRTO 669. The Tribunal has also noted that Tribunal's adjudicators are not required to be passive spectators in a proceeding and are entitled, and expected, to raise issues they consider to be necessary for the just fair and expeditious disposition of proceedings. See Noronha v. 1174364 Ontario, 2009 HRTO 1292, where the Chair of the Tribunal (as he then was) stated as follows at paragraphs 17 to 18:

Modern approaches to procedural fairness do not require a Tribunal, in its dispute resolution functions, to be completely passive, particularly when it comes to case management, and the effective use of adjudicative resources. The mere fact that an adjudicator identifies an issue which he or she believes is important in a proceeding, and seeks submissions thereon, does not mean that the adjudicator is favouring one of the parties, or that the adjudicator has pre-determined the issue or the application. One of the reasons Tribunal adjudicators are selected on the basis of their specialized, subject area expertise, is to ensure the tribunal has the ability to identify relelvant issues, which enables disputes to be resolved fairly and expeditiously.

The Code reflects this modern approach to case management, and specifically authorizes the Tribunal to adopt non-traditional approaches to adjudication, and to take a more “active” role in the resolution of applications.

19In my view, there is little reason to continue the cross-examination of Mr. Shain. As a starting point, I note, as I have several times in the several Interim Decisions and Case Assessment Directions in this matter, and throughout the hearing, the scope of this Application is quite limited. Most of the applicant's allegations were dismissed following a summary hearing. See 2015 HRTO 751. The only remaining allegations are that Ms. Rios and Ms. Talarico reacted in a disproportionate matter to the interaction between the applicant and Ms. Rios on March 6, 2013, which reaction included calling the police. Consequently, the scope of this Application is limited to Ms. Rios' and Ms. Talarico's actions. After hearing Ms. Talarico's evidence, I directed the respondent School Board to present Messrs. Shain and Maltese because it appeared that their evidence could assist in clarifying Ms. Talarico’s evidence, not because their actions were in issue in these proceedings. Mr. Shain has testified about his interactions with Ms. Talarico and his knowledge of her actions and decisions. The applicant complains that his cross-examination of Mr. Shain has been interrupted both by the respondents’ objections and my interventions on the basis that his questions are outside the scope of the Application and therefore not relevant. There is no doubt that this is true. This has occurred because most of the applicant's cross-examination has addressed issues outside the limited scope of this Application, which scope the applicant seems unable or unwilling to recognize. As an unrepresented applicant, the applicant has been given far greater latitude to cross-examine Mr. Shain than otherwise would be the case. The applicant has been able to cross-examine Mr. Shain at length about the actions he took in reaction to the events in question on March 6, 2013, including the applicant's theory that Mr. Shain participated in a conspiracy to remove the applicant from the school and have him criminally charged. I see no purpose in revisiting these issues.

20There is no dispute that the applicant was removed from the school after March 6, 2013. The applicant devoted significant time in his cross-examination trying to establish that this removal amounted to a disciplinary suspension, which Mr. Shain consistently denied. The applicant also wishes to establish that, pursuant to Exhibit 14, the School Board’s Respectful Workplace Policy, his removal was in fact disciplinary. First, there is no question that the applicant's removal from the school was an adverse consequence, regardless of its characterization. Therefore, whether the removal was disciplinary is not, for the purposes of a human rights analysis, particularly significant. Second, the removal and investigation of the applicant was conducted under the boards Workplace Violence Policy, Exhibit 25. Therefore Exhibit 14 does not apply.

21The applicant wishes to cross-examine Mr. Shain about the Education Act and the Police/School Board Protocol regarding suspensions and interviewing students. The applicant submits that the School Board did not follow the proper steps when he was removed from the school or when Ms. Talarico interviewed several students. The sections of the Education Act the applicant points to clearly concern the suspension of students, not teachers. The applicant’s bare assertion that it does or should apply to teachers does not make it so. Similarly, the Police/School Board Protocol deals with interviewing students who are suspected of criminal activity. Accordingly, neither of these documents is relevant to this proceeding. In any event, both Ms. Talarico and Mr. Shain have been cross-examined about Ms. Talarico's decision to interview some students on March 6, 2013.

22The applicant wishes to question Mr. Shain about several e-mail messages. These messages include messages from parents to the applicant that, amongst other matters, relate their children's recollections of the incident in question on March 6, 2013 and express concern about the applicant's absence from the classroom. Several of these messages were entered as Exhibit 3 during the applicant's testimony. Exhibit 3 also includes an e-mail message from Oleg Margolin to Mr. Shain in which he described how the applicant had been successful in assisting his child and that his removal from the school was a loss to his child and the school. Exhibit 24 is an e-mail from Mr. Leong to Mr. Shain expressing concern about the situation. The applicant identified an e-mail exchange between him and a Mr. Bellissimo, who I understand was a union representative, regarding the applicant's attempts to locate a suitable replacement for him while he was absent from his class. The applicant also identified an e-mail exchange between Mr. Bellissimo and Mr. Shain in which Mr. Bellissimo questioned whether it was necessary to remove the applicant from the school during a Bill 168 investigation.

23Mr. Shain, has already given evidence in cross-examination about e-mail messages and calls from parents expressing concern regarding the situation, including the applicant’s absence. The applicant specifically asked Mr. Shain about Exhibit 24, which is a message from Mr. Leong, a parent of one the applicant’s students, in which Mr. Leong advocates for a quick resolution to the issues surrounding the applicant’s removal from the school. Mr. Shain’s evidence was that the communications he received from parents prompted him to send a letter to parents, Exhibit 22, regarding the situation and he was cross-examined about this document. In my view, the issue of parental concern about the decision to remove the applicant is not particularly pertinent to the issues I must decide and has in any event been well canvassed. There is no reason, in my opinion, to revisit this issue.

24The e-mail messages, including Ms. Bogolyubova’s, in which parents advised the applicant about their children’s observations regarding the interaction in question are at least double hearsay and of quite limited probative value. There is no indication that any of these observations were brought to Mr. Shain’s attention. In any event, Mr. Shain’s evidence has been that he was neither responsible for initiating the respondent School Board’s investigation nor responsible for conducting it. In these circumstances, it is quite unlikely that cross-examining Mr. Shain regarding these documents will produce any relevant evidence.

25The e-mail messages exchanged between the applicant and Mr. Bellissimo concerning the applicant’s desire to find a suitable replacement to teach his class reflect well on the applicant, but are irrelevant. Mr. Bellissimo also appears to have exchanged e-mail messages with Mr. Shain in which Mr. Bellissimo questioned whether it was necessary to remove the applicant from the school for the purposes of a Bill 168 investigation. First, the decision to remove the applicant from the school is not within the scope of the Application. Second, Mr. Shain has already been cross-examined at some length about the decision to remove the applicant from the school during the investigation. The applicant did not present Mr. Bellissimo as a witness; therefore, Mr. Shain’s evidence on this point is un-contradicted. In these circumstances, I do not think cross-examination regarding these messages would be a useful exercise.

26As noted above, the applicant has already cross-examined Mr. Shain regarding Exhibits 22 and 24. The applicant has also cross-examined Mr. Shain regarding Exhibits 5, 6 (containing Ms. Talarico’s notes), 18, 21 and 23. The applicant provided no proper basis for allowing him additional cross-examination regarding these documents and I decline to permit him to do so.

27I am satisfied that the cross-examination of Mr. Shain has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding. In these circumstances, further cross-examination of Mr. Shain is neither necessary nor appropriate.

The applicant’s Requests

28On August 22, 2017, the applicant filed three Requests for an Order During proceeding. In the first, the applicant requested an order requiring Ms. Rios, an individual respondent to be present at the next hearing days. In the second and third, the applicant requested orders removing the representatives of the respondents and intervenor, respectively Ms. Elridge and Ms. Gregory. On September 5, 2017, the applicant filed a request seeking an order to “correct” the background information recorded in previous Interim Decisions and Case Assessment Directions and to have me recuse myself as the adjudicator because of bias. The respondents and intervenor have responded to each of these requests, which they oppose.

Removal of Representatives

29The second and third requests are readily disposed of. The specific order the applicant seeks regarding the respondents’ representative is that Ms. Arruda (Eldridge) be removed as Ms. Rios’, Mr. Cayanan’s and Ms. Paquet’s lawyer and that CUPE and TECT provide their own lawyers to Ms. Rios, Mr. Cayanan and Ms. Paquet. The specific order the applicant seeks regarding the intervenor’s representative is that Ms. Gregory be removed as the Intervenor and that CUPE provide their own lawyer to Ms. Rios and Mr. Cayanan. The applicant’s submissions supporting these requests are identical and are not particularly clear. The applicant submitted that Ms. Eldridge, Ms. Gregory and I were “ganging up” on him. The applicant attributed to me a statement at the last hearing date to the effect that I wanted the respondent School Board to represent several witnesses, CUPE members and TECT (the local teachers union). The applicant states this is why Ms. Eldridge represented Ms. Rios, Mr. Cayanan and Ms. Paquet on previous hearing dates. The applicant submitted that Ms. Eldridge stated that the intervenor’s conduct had been appropriate, which shows collusion between the School Board and the intervenor. The applicant submitted that Ms. Eldridge is in a conflict of interest because she is representing administrators, a librarian assistant, an educational assistant and teachers at the same time. The applicant submitted that Ms. Eldridge improperly took a factual position at odds with the facts the applicant believes he has established. The applicant submitted that Ms. Gregory did nothing as Ms. Eldridge accused Ms. Rios of calling the police. The applicant submitted that Ms. Gregory has been permitted to participate in the hearing beyond the normal scope of an intervenor. The applicant submitted that this behaviour shows collusion among the respondents, the intervenor and the adjudicator, me. The applicant submitted that I have a conflict of interest.

30As both the respondents and intervenor submitted, the applicant has no standing to dictate who should or should not represent another party or participant in a proceeding. Neither does the Tribunal have any authority to require any person or organization to represent a party or witness. I would also note that Ms. Eldridge does not represent either Mr. Cayanan or Ms. Paquet. Similarly, Ms. Gregory is not the intervenor, but the intervenor’s representative. Pursuant to its power under the Rules of Procedure to prevent abuses of process, the Tribunal could remove counsel to a proceeding in appropriate circumstances. There is, however, no basis for such an order in these proceedings. The applicant’s allegations of misconduct are, again, difficult to discern, but in any event baseless. Nothing the applicant described could amount to collusion or a conflict of interest. It appears that his main complaint is that counsel for the respondent and counsel for the intervenor, both of whose clients are opposed in interest to him, have taken positions contrary to his and I have ruled in their favour on several occasions. I note that I have also overruled some of the respondents’ objections, and, as noted above, there is nothing improper about making procedural rulings. The applicant states that I have a conflict of interest, but fails to describe what interest I might have in the outcome of this matter. I have none.

Amend Previous Orders

31The request the applicant filed on September 5, 2017 is no more meritorious. This matter has required several Interim Decisions and Case Assessment Directions to deal with various issues. In these Interim Decisions and Case Assessment Directions, I have included a short background paragraph, which gives a summary of the proceeding in a few sentences. The concern the applicant raises is that these summaries are not consistent and, in particular do not in some cases refer specifically to one of the individual respondents, Sylvie Talarico. The applicant submitted that this omission somehow caused him prejudice and amounts to “obstruction to justice and the Rules of Law”. The applicant submitted that these “errors” show bias on my part.

32The applicant’s concerns are entirely without foundation. The purpose of a background paragraph in an Interim Decision or Case Assessment Direction is to give a reader a general idea of the subject matter of the application in question. The summary contained in a background paragraph does not contain findings of fact and really has no legal significance. Accordingly, the contents of background paragraph cannot amount to a legal error, and there is in any event nothing inaccurate in the descriptions I have provided. Of course, I have not made any findings of fact in this matter, since the hearing is ongoing. As a result, the applicant has suffered no prejudice and there has been no “obstruction to justice”.

33The test for reasonable apprehension of bias is “whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly.” Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC) at p. 394. See also Landau v. Ontario (Finance), 2012 ONSC 6926. An informed person would know that the background paragraphs in question are simply summaries that are not legal findings. Anyone with any familiarity with this proceeding would know very well that Mr. Talarico’s actions are an important part of this litigation and whether those actions were discriminatory remains very much in question. The applicant’s submissions do not provide a proper basis for a finding of reasonable apprehension of bias.

Attendance of Norma Rios

34Norma Rios is an individual respondent in this matter and her actions are a central issue. Ms. Rios has thus far not attended the hearing on the basis that she is too ill. The applicant requests that the Tribunal order Ms. Rios to attend the next hearing dates on October 18 and 19, 2017. The applicant submitted that Ms. Rios’ medical condition is an issue in this matter, but insufficient medical evidence has been provided thus far. The applicant complains that he was provided with a redacted medical note on the first day of hearing.

35Both the respondent and the intervenor submitted that the applicant is not entitled to determine when the respondent presents its evidence. The intervenor noted that a respondent is not actually required to attend a hearing at all. The intervenor submitted that the applicant received a copy of the medical note in question with the doctor’s name and contact information redacted because the applicant made a statement to the effect that he intended to “investigate” whether Ms. Rios was actually ill. The intervenor also submitted that the respondent did not refer to other medical information that has been provided. The intervenor submitted that the issue of Ms. Rios’ evidence has been canvassed by the Vice-Chair and addressed appropriately. The intervenor submitted that in a Case Assessment Direction dated April 21, 2017 I rejected the applicant’s assertion that Mr. Rios was acting in bad faith and that the Tribunal accepted the medical information provided regarding Ms. Rios.

36There is no general requirement that a respondent attend a hearing, particularly when they are represented by counsel. In my view, the real issue regarding Ms. Rios is whether the respondents intend to actually present her as a witness. I have previously stated that in the normal course I would expect the respondent to present Ms. Rios, given her expected evidence. Thus far, the respondents have indicated that she is too ill to attend. As I noted in the Case Assessment Direction of April 21, 2017, the medical information provided to date is not sufficient to excuse either Ms. Rios or Mr. Cayanan from testifying on medical grounds. Accordingly, the intervenor’s assertion that the Tribunal has “accepted” the medical evidence regarding Ms. Rios is inaccurate. Notwithstanding the clear implications of the Case Assessment Direction of April 21, 2017, the respondents – in my view this is primarily the respondents’ responsibility – have not provided further and more detailed medical information or any indication of how they intend to address this issue.

37It now appears that Mr. Cayanan is available to testify on the morning of October 18, 2017. The Tribunal shall issue directions about Mr. Cayanan’s testimony shortly. During the balance of the next hearing dates on October 18 and 19, 2017, the applicant shall complete his cross-examination of Mr. Maltese and the respondent will present Ms. Paquet. At that point, the only potential witness remaining shall be Ms. Rios. If, as expected, she does not attend the next hearing dates, then the parties must be prepared to make submissions about her participation in the hearing. The issues to be addressed include whether further and better medical information shall be provided, whether the Tribunal should order production of medical records, whether Ms. Rios’ doctor should give evidence, and what are the implications if Ms. Rios does not testify, with or without being excused for medical reasons.

Order

The Tribunal orders as follows:

1. No further cross-examination of Mr. Shain shall be permitted; and,

2. The applicant’s requests, addressed, above, are denied.