Court File and Parties

CITATION: Joe Singer Shoes Limited. v. AB, 2018 ONSC 5869

DIVISIONAL COURT FILE NO.: 149/18

DATE: 20181003

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: JOE SINGER SHOES LIMITED, PAUL SINGER and BUY-A-HAMMER INVESTMENTS INC. Applicants

-and-

AB Respondent

BEFORE: F.L. Myers J.

COUNSEL: Frank Addario and Samara Secter counsel for the applicants David Baker and Hannah Shaikh, counsel for the respondent Jason Tam, counsel for the Human Rights Tribunal of Ontario

HEARD at Toronto: October 1, 2018

ENDORSEMENT

The Motion

[1] The respondent moves to strike the affidavit of Dr. Julian Gojer that has been delivered by the applicants in support of their application for judicial review. For the reasons that follow, the affidavit of Dr. Gojer is struck from the record in this proceeding.

Background

[2] The Human Rights Tribunal of Ontario ordered the applicants to pay $200,000 to AB due to findings of sexual assault and harassment. The applicants seek judicial review of the tribunal’s decision.

[3] Among the grounds advanced by the applicants in this judicial review proceeding is an issue concerning the use made by the tribunal of evidence given by AB’s doctors. Although the tribunal expressly said that it was required to determine AB’s credibility, the applicants argue that the tribunal wrongly used the doctors’ evidence as a basis to conclude that her evidence was true.

[4] The doctors testified that they agreed with or believed AB’s evidence that her PTSD was caused by sexual assault. The applicants argue that the tribunal’s use of the doctors’ belief in AB to support her credibility amounted to “oath helping” which is improper and is a reviewable error. I make no comment as to the merits of this argument as that is a matter for the panel that hears the application.

[5] In support of the judicial review application, the applicants have delivered an affidavit of Dr. Julian Gojer. Dr. Gojer‘s evidence was not adduced at the hearing before the tribunal. The applicants argue that the court needs to hear Dr. Gojer’s evidence so as to avoid making the mistake that was made by the tribunal.

[6] Dr. Gojer’s evidence is brief. The substance of his affidavit says:

3. Treating therapists do not attempt to ascertain whether an unwitnessed event occurred. At a clinical level, psychiatrists and psychologists often accept the patient’s history at face value. This includes the patient’s description of the trigger for PTSD. This is a therapeutic approach often adopted.

4. The therapeutic approach is not intended to displace the judge or tribunal’s fact-finding function. From a forensic psychiatric point of view, to conclude that the PTSD reported was linked to a reported “triggering event” of “cause” would be just an assumption, unless there is strong corroborative support that the complaint is well founded. When offering a forensic opinion, it is important for the clinician to state whether the occurrence of the actual trauma or trigger was verified or not and if it was, to what degree and how its occurrence was established.

5. Without objective evidence of an occurrence of actual trauma a forensic clinician can only opine that a patient is presenting with features of PTSD that may be consistent with certain traumas.

[7] In effect, Dr. Gojer says that it is normal for treating doctors to believe their patients as that is a part of their therapeutic approach or treatment. This is different than if the doctors had been called to give evidence as forensic experts. In that case, the doctors could not have given opinions that AB was telling the truth. Dr. Gojer notes that even forensic psychiatric experts can opine on an actual cause of a patient’s problem if “there is strong corroborative support that the complaint is well founded.” However, he concludes that without objective support, a forensic psychiatric opinion should be limited and should not definitively conclude that the patient is actually suffering from the cause alleged (i.e. that she is telling the truth).

[8] The two doctors who testified before the tribunal were treating experts. They formulated opinions in the course of providing actual treatment to AB. The opinions were set out in the doctors’ clinical notes and records that were before the tribunal. The applicants do not challenge the admissibility of the experts’ evidence. The issues of the scope of their opinions and oath helping were discussed expressly before the tribunal. The expert witnesses were also cross-examined by counsel for the applicants.

[9] There are no transcripts of the examination of the treating expert witnesses as no recording was kept by the tribunal and the parties chose not to bring their own reporters.

[10] There is no reason why the applicants could not have cross-examined the doctors on whether they chose to believe their patients as a normal part of the therapeutic process as opposed to their opinions being based on objective, forensically observable facts. Moreover, they could have called Dr. Gojer as a witness to make the point that a treating doctor is likely to believe his or her patient as part of the therapeutic process.

[11] Mr. Addario argues that since the issue of oath helping was directly discussed before the tribunal there was no reason for counsel to think that further evidence was required. As the tribunal recognized that AB’s credibility was an issue for it to decide, Mr. Addario asks how counsel could have anticipated that the tribunal would choose to believe AB just because her treating doctors said that they believed her.

[12] Mr. Addario is essentially arguing that counsel made a choice that evidence was not required on a point that was expressly before the tribunal. Now that the tribunal has decided the issue in a way that is not in his client’s favour, Mr. Addario wants to call the evidence that counsel previously thought was unnecessary. He argues that he needs to be sure that the judges of this court do not fall into the same error as the tribunal.

[13] Mr. Addario argues that even if counsel made an error by failing to call Dr. Gojer, this court still requires the new evidence to prevent a miscarriage of justice.

Analysis

A Motion is required for Leave to Adduce Evidence on Judicial Review

[14] In an application for judicial review the applicant is required to bring a motion for leave to adduce further evidence to supplement the record of the proceedings under review. This is different than the practice on statutory appeals in which motions for leave to adduce fresh evidence are generally heard at the same time as the hearing of the main appeal. The purpose of requiring a motion in judicial review proceedings is to clarify the record and enable the parties to better refine the issues prior to factums being filed. Sierra Club of Canada v Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086, at para 7; Kognitive Marketing Inc. v Director of Employment Standards, 2017 ONSC 7219, at para. 9.

[15] In this case, the applicants did not move for leave prior to delivering Dr. Gojer’s affidavit. The respondent therefore moves to strike the affidavit. Rather than dealing with motion on a technical basis, I approach the issue on its merits as if the applicants had brought a motion for leave to introduce the proposed evidence.

There are Limited Grounds to Receive Evidence to Supplement the Record on Judicial Review

[16] The test for admitting new evidence on judicial review was set out by the Divisional Court in Warren v. Ontario Labour Relations Board, 2012 ONSC 1735:

[9] Affidavit evidence is only admissible to supplement the record of proceedings in applications for judicial review in limited circumstances:

• where there is a complete absence of evidence on an essential point (Keeprite Workers’ Independent Union v. Keeprite Products Limited (1980), 29 O.R. (2d) 513 (C.A.) at p. 8 (Quicklaw version) and Windsor Board of Education v. Windsor Women Teachers’ Assns., [1991] O.J. No. 2148 (C.A.) at p.8 (Quicklaw version)), or

• where the evidence discloses a breach of natural justice that cannot be proven by reference to the record (142445 Ontario Limited (Utilities Kingston) v. International Union of Electrical Workers, Local 386, [2009] O.J. No. 2011 (Div. Ct.) at para. 18).

[10] Some cases have suggested a broader basis for the admission of affidavit evidence in applications for judicial review, permitting such evidence where the interests of justice require it (Denby v. Ontario (Agriculture, Food and Rural Affairs Tribunal), [2005] O.J. No. 4952 (Div. Ct.); Brookfield Lepage Johnson Controls Facilities Management Services Ltd. v. Ontario Labour Relations Board, [2007] O.J. No. 490 (Div. Ct.)). However, the courts have generally been very reluctant to permit affidavit evidence to supplement the record of proceedings on judicial review, even where there is no transcript (Taucar v. University of Western Ontario, 2011 ONSC 1535 (Div. Ct.) at para. 16).

[17] The applicants argue that there is a residual discretion to admit evidence to prevent a miscarriage of justice. I do not need to decide if that is correct. Nor do I need to decide if the Palmer test for admitting fresh evidence on appeal can apply in judicial review proceedings. Regardless of the applicable test, the proposed evidence is still inadmissible as it is not relevant to the issues on judicial review and, in any event, it could have been adduced at the hearing.

[18] Dr. Gojer’s distinction between treating experts and forensic experts is well understood in the case law. As noted above, the issue is not the admissibility of the doctors’ opinion evidence or whether the doctors testified as treating experts or as forensic experts. Rather, the issue is whether the tribunal improperly relied on the doctors’ evidence of their belief of their patient to support AB’s credibility. Mr. Addario will take the panel of this court to the same paragraphs of the tribunal’s decision that he highlighted for me and argue that the tribunal wrongly relied on the doctors’ opinions to bolster AB’s credibility. This issue is a question for argument. Dr. Gojer’s efforts to expose weaknesses in the reliability of the treating doctors’ opinions has no bearing on the legal argument about oath helping.

[19] The panel hearing this matter also does not need Dr. Gojer’s evidence on the legal principle that “[t]he therapeutic approach is not intended to displace the judge or tribunal’s fact-finding function.” The rest of Dr. Gojer’s affidavit deals with the limits on forensic experts’ opinions. As there were no forensic experts before the tribunal, this evidence is irrelevant to the issues under review.

[20] The proposed evidence does not meet either of the two grounds recognized in Warren. As I do not see Dr. Gojer’s evidence as relevant to the issues on the judicial review, there is no need therefore to consider the extent to which there may be other bases for admitting evidence on judicial review in light of the narrow view espoused in Warren. Moreover, as the proposed evidence is not relevant and could have been adduced at the hearing before the tribunal, the proposed evidence cannot meet the Palmer test either if it applies.

[21] The motion is therefore granted and the affidavit of Dr. Gojer is struck.

[22] There is no reason to depart from the normative approach that costs are payable by the unsuccessful party to the successful party. The applicants argue that since they had no way to know that the tribunal would use the doctors’ evidence for oath helping, costs ought to be in the cause. I do not agree. No matter who succeeds on the application for judicial review, the delivery of Dr. Gojer’s evidence was a mis-step. The applicants should not have delivered the affidavit without first moving for leave to do so. Ultimately, there was no basis to admit the evidence. The respondent incurred costs to correct the record. She is entitled to partial indemnity for her costs that I fix in the amount of $5,000 payable forthwith.

F.L. Myers J.

Date: October 3, 2018