CITATION: Bart v. McMaster, 2015 ONSC 4313
DIVISIONAL COURT FILE NO.: 210/14
DATE: 20150714
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: DR. CHRIS BART, DR. DEVASHISH PUJARI, DR. WILLIAM RICHARDSON, DR. JOE ROSE, DR. SOURAV RAY, DR. GEORGE STEINER AND DR. WAYNE TAYLOR
Applicants/Responding Party
AND:
MCMASTER UNIVERSITY, THE BOARD SENATE HEARING PANEL FOR SEXUAL HARASSMENT/ANTI-DISCRIMINATION UNDER THE MCMASTER UNIVERSITY ANTI-DISCRIMINATION POLICY, THE SENIOR ADMINISTRATOR AT MCMASTER UNIVERSITY, AND CERTAIN UNNAMED INDIVIDUALS AT MCMASTER UNIVERSITY
Respondents/Moving Party
BEFORE: H. Sachs J.
COUNSEL: George Avraam & Andrew Shaw, for the Respondents/Moving Parties
Peter M. Jacobsen & Tae Mee Park, for the Applicants/Responding Parties
Mark Zega, for the Respondent, Board Senate Hearing Panel under the McMaster University Anti-Discrimination Policy
HEARD at Toronto: June 30, 2015
ENDORSEMENT
Introduction
[1] In 2013, an adjudicative panel (the “Tribunal”), constituted under the terms of McMaster University’s Anti-Discrimination Policy (the “Policy”), determined that the Applicants had, to varying degrees of severity, committed harassment and bullying in the workplace and otherwise contributed to a poisoned work environment at the DeGroote School of Business (“DSB”). The Tribunal ordered that three of the Applicants be suspended without pay, privileges of employment, or access to the University’s campus for three years. Two of the Applicants were sanctioned in the same way, but for periods of one year and one semester respectively. One of the Applicants received a reprimand to be maintained on file for five years. All of the Applicants were tenured professors at the DSB with no prior history of discipline.
[2] The Applicants seek to judicially review the Tribunal’s decisions. In their application for judicial review, they allege procedural unfairness, natural justice violations, and jurisdictional breaches that they argue permeated the entire history of the proceedings and gave rise to unreasonable and punitive remedies contrary to the Policy’s focus, which is meant to be remedial. The Applicants also make allegations based on what they allege are serious deficiencies and inadequacies in the Tribunal record.
[3] In support of their application for judicial review, the Applicants have filed twelve affidavits. This is a motion to strike those affidavits or large portions of those affidavits. According to the Respondents, one of the affidavits should be struck as being improperly the subject of expert evidence. The others contain evidence to support claims of procedural unfairness concerning procedures that were either agreed to by the Applicants or never objected to by the Applicants. As a result, the Tribunal never had an opportunity to rule on these claims. To the extent that the affidavits contain references to the pre-hearing investigation, those portions should be struck because the pre-hearing investigation cannot be the subject of judicial review and, even if it could, the Applicants waived their rights to object to the pre-hearing events as they failed to object at the earliest opportunity. With respect to the Applicant’s evidence in relation to the Tribunal’s alleged lack of jurisdiction, the Respondents argue that this evidence should be struck because true questions of jurisdiction are exceptional and the Applicants waived their rights to raise these alleged jurisdictional issues by not bringing them before the Tribunal and giving the Tribunal an opportunity to rule on them. In fact, according to the Respondents, the Applicants expressly agreed on the record that the Tribunal had jurisdiction to proceed in the manner that it did. Finally, the Respondents submit that affidavit evidence on judicial review applications is only admitted in certain limited circumstances and the evidence put forward by the Applicants does not fall within those circumstances.
[4] For the reasons that follow, the Respondent’s motion to strike is dismissed with one exception – namely, I would strike the affidavit of Dr. Donald Carter. Dr. Carter’s affidavit opines on matters concerning Ontario law. Such matters are not properly the subject of expert opinions. With respect to the other bases for the motion to strike, the Respondents are essentially using this motion to argue the merits of the application for judicial review, an exercise that should be left to the panel hearing the judicial review application.
Legal Framework
[5] In 142445 Ontario Ltd. (c.o.b. Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636, 95 Admin. L.R. (4th) 273, [2009] O.J. No. 2011, the Divisional Court articulates the two bases for admitting affidavit evidence to supplement the record on a judicial review application. As put by Swinton J. at para. 18:
…affidavit evidence can be admitted either to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by a mere reference to the record.
[6] In this case, the Applicants primarily rely on the second basis; namely, they allege that the evidence is necessary to disclose the breaches of natural justice to which they were subject.
[7] In assessing the procedural fairness issues raised by the Applicants, the panel that hears their application will need to have regard to the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39. These are (i) the nature of the decision made and the process followed in making it; (ii) the statutory scheme in which the Tribunal operates; (iii) the importance of the decision to the Applicants; (iv) the legitimate expectations of the Applicants; and (iv) the choice of the procedure followed.
[8] In Lockridge v. Ontario (Director of the Environment), 2012 ONSC 2316, 350 D.L.R. (4th) 720 (Div. Ct.), at para. 47, Harvison Young J. dealt with the competing principles at play on a motion to strike: “[o]n one hand, courts are generally reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits.” To do so can result in hampering or usurping the role of the panel who hears the matter. On the other hand, the panel who hears the matter will be assisted if the record is appropriately defined in advance, particularly in a case where there is a large volume of material.
[9] In reconciling these two principles Harvison Young J. concluded, at para. 52, that “evidence should not be struck at this stage unless it is clearly inadmissible.” After dealing with the particulars of the motion before her, Harvison Young J. concludes her analysis with the following observations:
While I have real doubts as to the admissibility of much of the evidence on many of the grounds raised, especially relevance, striking the affidavits to the extent the respondents request would disrupt the narratives set out in the affidavits, making it harder, not easier, for the panel to understand the evidence...In addition, general context and narrative is permissible, and this line is difficult to draw in a preliminary motion.
One must keep the dual principles emerging from Sierra Club and similar cases in mind. On the one hand, it is important to define the scope of the application to avoid the proliferation of issues, and to ensure the record filed reflects the issues properly before the court. On the other hand, it is not for a motion judge to usurp the role of the hearing panel in determining the merits of the application. Where there is doubt concerning the admissibility of some or all of a given affidavit, it is best to err on the side of caution and not strike material from the record.
[10] The concern about editing affidavit material on a motion to strike, with the consequence that the affidavits become harder rather than easier to understand, is reflected in the following passage from Ontario Propane Association Inc. v. Ontario, 2010 ONSC 6508, 20 Admin. L.R. (5th) 324 (Div. Ct.), where Herman J. writes:
Excising particular portions of the paragraph or portions of sentences would require me to engage in an editing exercise and would render the paragraph difficult to read. It is preferable to let the paragraph stand. The panel is well able to distinguish between those portions of the paragraph that arise from Mr. Wilson’s engineering knowledge and experience and those portions that constitute legal argument or conclusions of law.
Whether Mr. Wilson’s opinion as to what the regulation means in practice is relevant is best left to the panel hearing the application to determine.
Analysis
Dr. Donald Carter’s Affidavit
[11] At paragraph 5 of his affidavit, Dr. Carter sets out the question on which he has been asked to express an opinion. It is:
In your experience as an arbitrator, what range of remedies would you reasonably expect an arbitrator to make based on the finding of facts made by the Board Senate Hearing Panel for Sexual Harassment/Anti-Discrimination under the McMaster University Anti-Discrimination Policy (the Tribunal)?
[12] At paragraph 6 of his affidavit, Dr. Carter expresses his opinion on this question, as follows:
I have reviewed and considered the decision and full reasons of the Tribunal and the Tribunal’s Remedy Decision. My professional opinion, based on my knowledge of arbitration jurisprudence formed over the last 45 years, is that Canadian labour arbitrators would conclude that the sanctions recommended by the Tribunal in respect [of the Applicants] are all excessively harsh and would not meet the standard of just cause applied when arbitrating discharge and discipline cases arising under a collective agreement.
[13] Dr. Carter then goes on to set out the reasons for his opinion, including his review of relevant Canadian arbitral jurisprudence in the form of cases and texts.
[14] The clear thrust of Dr. Carter’s opinion is to interpret Canadian arbitral jurisprudence and apply his interpretations to the facts, as found by the Tribunal, to form his opinion as to the sanctions imposed by that Tribunal. In other words, he is opining on the very issue that the panel hearing the judicial review will be asked to rule on. Further, the basis for his opinion on the issue is Ontario law that the judges hearing the matter are presumed to know or can be informed about through counsel arguing the application. As noted by O’Leary J., in The Masters’ Association of Ontario v. Ontario (Attorney General), [2001] O.J. No. 1444 (Div. Ct.), at para: 7:
What is not permitted is receipt of expert opinion on the law of Ontario. Ontario judges are presumed to know the law of Ontario and do not need experts to tell them what it is.
[15] For these reasons, I would strike Dr. Carter’s affidavit.
Evidence Regarding Preliminary Investigation
[16] According to the Applicants, the Tribunal proceedings were nullified by a fundamentally flawed and unfair pre-hearing investigation process. Consequently, the Applicants’ affidavits go into detail concerning this pre-hearing investigation process and their expectations about that process.
[17] The Respondents submit that this evidence is not admissible for two reasons: (i) the pre-hearing investigation did not determine any of the Applicants’ rights or interests and, therefore, is not subject to judicial review, and (ii) the Applicants waived their right to challenge the jurisdiction of the Tribunal based on anything that occurred in the pre-hearing investigation. No objections about this process were raised with the Tribunal. Further, the Tribunal clearly had jurisdiction under the Policy to hear the complaints.
[18] In assessing the nature of the duty of procedural fairness that was owed to the Applicants, it is important to consider their legitimate expectations. According to the Applicants, those expectations were formed by the events that occurred during the pre-hearing investigation. Thus, in my view, the evidence at issue is relevant to an issue that the panel hearing the matter will be asked to determine.
[19] To strike the evidence regarding the preliminary investigation would be to pre-determine the merits of the Applicants’ submissions with respect to this investigation and how it impacted on their rights to procedural fairness. This is not something that I should do at this early stage. It will be up to the panel to determine whether the Applicants’ arguments concerning the pre-hearing investigation, and its impact on the Tribunal’s jurisdiction and process, had any merit. To make this determination, the panel needs to be apprised of the evidence upon which the Applicants are basing their arguments, evidence that was not in the record before the Tribunal.
Evidence Relating to Process, Deadlines and Consolidation
[20] The Applicants allege that the Tribunal violated the principles of natural justice and procedural fairness through the structure and conduct of the hearing in a number of ways, including by consolidating the two group complaints and by imposing an unreasonable hearing schedule.
[21] The Respondent argues that the evidence relating to these allegations should be struck as the Applicants agreed that the complaints could be consolidated and never objected to the hearing schedule that the Tribunal imposed. In fact, they consented to it.
[22] Again, to determine which position is valid would be to pre-judge the merits of some of the Applicants’ arguments respecting procedural fairness, something that I should not do at this stage of the proceeding.
Evidence Regarding Absence of One Tribunal Member During Portions of the Hearing
[23] According to the Applicants, the Tribunal exceeded its jurisdiction and violated the principles of natural justice when it proceeded in the absence of one of its members during what they allege were two critical portions of the hearing.
[24] The Respondents move to strike the Applicants’ evidence in this regard because, according to the Respondents, it is clear from the record that the Applicants consented to the member being absent.
[25] Essentially, the Respondent is arguing that I should strike the evidence because the Applicants’ arguments on this point have no merit. Clearly, the evidence is relevant to the arguments being made, which may or may not be successful when the matter is heard by the panel. Given this, the evidence should not be struck.
Evidence Concerning Policy Breach Because No Informal Resolution Offered
[26] The Applicants allege that the Tribunal breached the Policy thereby depriving itself of jurisdiction by failing to determine whether the Applicants wished to pursue an informal resolution of the complaints.
[27] Again, the Respondents attack the merits of this argument on the basis that the wording of the Policy is not mandatory, this was never raised before the Tribunal, and what occurred in this regard had nothing to do with the Tribunal.
[28] Attacking an argument on the merits is not a basis for striking the evidence in an affidavit when the evidence is relevant to a procedural fairness submission.
Evidence Concerning Other Procedural Breaches and Failure to Pay for Legal Fees
[29] The Applicants make other allegations concerning how the rights to procedural fairness were abrogated and, in doing so, make reference to the fact that some of them did not have legal counsel during the pre-hearings. The Respondents move to strike the portions of the Applicants’ affidavits that deal with these allegations, again on bases that speak to the merits of the Applicants’ submissions, as opposed to the clear inadmissibility of the evidence.
Evidence Respecting Post Hearing Events
[30] The Applicants’ affidavits speak to the impact of the sanctions on them and to events that occurred after the remedy decisions were rendered. The Respondents assert that since these events occurred after the Tribunal hearing, the evidence is clearly inadmissible.
[31] In my view, the evidence concerning the impact of the sanctions on the Applicants is relevant to a consideration of the Baker factors, particularly the importance of the decision to the Applicants. The same can be said with respect to the evidence concerning the Applicants’ professional backgrounds.
Evidence Respecting Matters that May Already Be Part of the Record
[32] One of the bases advanced for striking portions of the Applicants’ affidavits is that this evidence is already part of the record before the Tribunal and, thus, there is no need to include it in affidavit form.
[33] I agree that the exception for the admission of evidence by affidavit to supplement an application for judicial review where allegations of procedural fairness are made includes the qualifier that the breach cannot be proven by reference to the record. In this case, two things are clear. First, the record of what occurred before the Tribunal is not complete, due to problems with the audio recordings that were made of those proceedings. Second, to understand the nature of the Applicants’ complaints regarding procedural fairness, it is necessary to go beyond the record that was before the Tribunal. In my view, to parse the Applicants’ affidavits to ensure that evidence that is otherwise in the record is stuck from those affidavits would be an inappropriate exercise for me to undertake given the record at issue. Further, editing the Applicants’ affidavits in this way would interrupt the flow of their narrative, a narrative that will help the panel hearing the application for judicial review understand why the Applicants are asserting that their rights to natural justice were violated.
Conclusion
[34] For these reasons, the Respondents’ motion to strike is dismissed except with respect to Dr. Carter’s affidavit, which I order be struck from the record. At the end of the hearing of this motion, I invited counsel to see if they could reach an agreement on the appropriate quantum of costs, win or lose. Counsel agreed on a figure of $40,000.00, which in my experience, is more than is ordinarily awarded for this type of Divisional Court motion.
[35] Given that neither party has been completely successful on the motion, I am inviting counsel to make further submissions in writing on the question of costs. The Applicants shall have 10 days from the release of these reasons to make their submissions and the Respondents shall have a further 10 days to file their response.
H. SACHS J.
Date: 20150714