Court File and Parties
DIVISIONAL COURT FILE NO.: DC 763/25 JR DATE: 20260601 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: ANITA PELLARIN, Applicant/Responding Party AND: HUMAN RIGHTS TRIBUNAL OF ONTARIO and GENERAL MOTORS OF CANADA COMPANY, Respondents/Moving Party
BEFORE: D.L. Corbett J.
COUNSEL: Nicole Biros-Bolton and Daniel Mulroy, for Ms Pellarin David Bannon, for the Moving Party GM of Canada Company
HEARD at Toronto in Writing: June 1, 2026
Endorsement
D.L. Corbett J.
Overview
1GM’s motion to strike the Pellarin Affidavit is dismissed for the following reasons.
Background
2In the Reconsideration Decision, the Tribunal found as follows:
The applicant submitted in the reconsideration request that her “direct” evidence was that she had “no knowledge of the settlement at the relevant time.” However, this submission does not accord with my recollection of her evidence in chief or on cross-examination, or my notes of same. My recollection is and my notes of her evidence reflect that she testified that she was aware of the settlement and terms of same at the time. I therefore reject the applicant’s submission that she had no knowledge of the settlement at the relevant time.
3In the impugned affidavit, Ms Pellarin states (among other things) that she “only became aware of the existence and contents on the Minutes of Settlement when they were disclosed through the Tribunal’s exchange of… documents.”
4In her evidence, Ms Pellarin states that “[t]he Tribunal has declined to provide the audio recording or transcription of the relevant portion of the hearing.”
5Based on the evidence adduced in the responding motion record, the Tribunal advised that it does not release transcripts or recordings unless ordered to do so by the court.
6Neither side has sought a court order for production of the relevant transcript.
7The Moving Party argues that the evidence in Ms Pellarin’s affidavit is false and is contradicted by the record of documents and other facts found or admitted in the case.
Analysis
8The Tribunal made a finding based on its recollection of Ms Pellarin’s oral testimony. Ms Pellarin states that the Tribunal’s recollection of her evidence is wrong. If this was a critical fact, and if no recording had been made of the evidence (such that it would not be possible to obtain a transcript), this evidence would be admissible on the application pursuant to the Keeprite principles: to fill a gap in the record and to try to establish a complete lack of evidence to support a material finding of fact.
9As GM notes in its factum,
should the Pellarin affidavit be left intact, GM Canada will be compelled to prepare responding Affidavit materials setting out its evidence of the evidence given by the Applicant at the hearing before the Tribunal, or will need to pursue its own Motion to seek the production of the audio recording of the hearing from the Tribunal. (Factum, para. 47)
It would have been less expensive for the parties, and would have consumed fewer judicial resources, to seek an order for the transcript: HRTO counsel have indicated they will not oppose (but will wish to be involved in the appropriate scope of the production order). The Applicant could hardly oppose the production as the best evidence as to the Applicant’s testimony. And that would have put a swift end to this point.
Disposition
10If the Moving Party decides to seek production of the transcript, I am seized of that motion, which may be addressed by way of a consent order provided to me, in writing, by June 12, 2026. If the order is not on consent, then the parties may arrange a case teleconference with me to explain their difficulty.
11I defer consideration of the costs of this motion until after the transcript issue is resolved. Any party seeking costs of this motion shall deliver their costs materials prior to or at the same time that the consent order is sent to the court or the case teleconference is held.
12If the Moving Party decides not to seek production of the transcript, they shall so confirm to the court by June 12, 2026.
“D.L. Corbett J.”
Released: June 1, 2026