Court File and Parties
COURT FILE NO.: 763/02
DATE: 20031126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, FRANK GESWALDO, GEORGE SIMPSON, P. JAMES and JIM HUME
Appellants
- and -
MICHAEL MCKINNON and ONTARIO HUMAN RIGHTS COMMISSION
Respondents
Counsel:
John P. Zarudny and James Kendik, for the Appellants
Kate Hughes, for the Respondent, Michael McKinnon
Jennifer Scott, for the Respondent, Human Rights Commission
HEARD: November 26, 2003
Oral Reasons for Judgment
MCRAE J.: (Orally)
[1] Counsel for the Ontario Human Rights Commission moves to strike from the appeal book and the compendium the affidavit of Marnie Corbold dated October 6th. Counsel for the other respondent Michael McKinnon supports the position of the Ontario Human Rights Commission.
[2] This is a motion within an appeal from a tribunal of the Ontario Human Rights Commission. At the hearing before the tribunal there were gaps in the recorded evidence. It is conceded by counsel for both the Ontario Human Rights Commission and counsel for Michael McKinnon that because of these gaps, Ms. Corbold’s notes may be included in the appeal book and the material filed. They object however to her affidavit on the basis that it goes farther than her notes as it also includes subjective observations and opinions.
[3] In my view this is not fresh evidence as envisaged by s.61(16). This evidence is relevant to the conduct of the tribunal itself during the hearing. It does not touch on the issue of compliance which was under consideration by the tribunal. Bias and partiality by the tribunal are important issues on the appeal. The affidavit relates to those issues. It can only be shown in the manner under review today. If the applicants wish to cross-examine the affiant or to file further affidavit material on this issue, it is open to them to do so.
[4] In my view, this is the most just expeditious and least expensive method of determining the issues on appeal. The motion is dismissed.
[5] The motion record is endorsed as follows: “For oral reasons the motion is dismissed. Costs of today reserved to the full panel.”
MCRAE J.
Date of Reasons for Judgment: November 26, 2003
Date of Release: November 28, 2003
COURT FILE NO.: 763/02
DATE: 20031126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, FRANK GESWALDO, GEORGE SIMPSON, P. JAMES and JIM HUME
Appellants
- and -
MICHAEL MCKINNON and ONTARIO HUMAN RIGHTS COMMISSION
Respondents
ORAL REASONS FOR JUDGMENT
MCRAE J.
Date of Reasons for Judgment: November 26, 2003
Date of Release: November 28, 2003