Court File and Parties

COURT FILE NO.: 387/05

DATE: 2006-01-09

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Universal Workers Union, LIUNA Local 183, Daniel Avero, Roger Quinn and Tony Dionisio Applicants -and- Ontario Human Rights Commission, Human Rights Tribunal of Ontario and Anthony Tubbs Respondents

HEARD: November 15, 2005

BEFORE: Lane J.

COUNSEL: Ronald Lebi for the Applicants; Anthony Griffin for the O.H.R.C., Respondent James C. Morton and Jim Schneider for the Tribunal, Respondent Winston Mattis for Anthony Tubbs, Respondent

ENDORSEMENT

[1] This is an application under section 6(2) of the Judicial Review Procedure Act[^1] seeking leave to bring an urgent judicial review before a single judge of the Superior Court on the ground that the delay in arranging for a full three-judge panel to hear it is likely to involve a failure of justice. The applicants seek to quash an interim order made by the respondent Tribunal requiring the present applicants, who are respondents before the Tribunal, to call as witnesses some ten persons whom the present applicants do not wish to call, and to produce “will-say” statements from these ten persons.

[2] The hearing before the Tribunal arises from a complaint made to the Commission by Mr. Tubbs in June 1999, that he had been discriminated against by Local 183, and certain officers thereof, at a Union meeting on December 20, 1998. Mr. Tubbs, a black man, a member of the Union and a shop steward, made certain comments to the meeting about issues affecting minority Union members, such as himself, at various job sites and as to how minority members were treated by the Union leadership. During the meeting, Mr. Tubbs’ views were challenged by the respondent Dionisio, and later, at a personal level, by the respondents Avero and Quinn and it is said that there was an altercation between Mr. Tubbs and Mr. Avero. The Commission investigated and took the view that there was a case to be met that Mr. Tubbs’ rights under the Human Rights Code had been violated, as he had been treated unequally by reason of his colour and race. The Commission referred the complaint to the Tribunal to hold a hearing, which has commenced and is in recess pending the outcome of this application.

[3] It is important to note that the scheme of the Human Rights Code is that the Commission, having received the complaint, inquires into it and endeavours to effect a settlement (section 33(1)). In aid of the inquiry, the Commission possesses extensive powers of entry into places, other than dwellings, (section 33(3)(a)); to request and remove for copying any document or thing that may be relevant (section 33(3)(b)(c)); and to question any person on matters that are, or may be relevant (section 33(3)(d)). It has the power to seek a search warrant when it meets with a lack of co-operation in its inquiry. The Commission decides whether to pursue the complaint based on whether the evidence warrants a referral to the Tribunal. The duty of the Tribunal under section 39 of the Code is to hold a hearing to determine whether a right of the complainant has been breached, if so by whom and to determine a remedy. The parties to the hearing are the Commission, which has carriage, the complainant, the person alleged to have infringed the right and other persons who may appear to the Tribunal to have infringed the right.

[4] This scheme separates the inquisitorial from the adjudicative function. The Commission has the former, the Tribunal the latter.

[5] Part way into the hearing, after Mr. Tubbs’ evidence, and over the objections of the Union, the Tribunal permitted the complaint to be amended to plead seven occasions of reprisal in addition to the original grounds. As a condition of granting the amendments, the Tribunal directed that the Commission summon certain witnesses, mentioned by Mr. Tubbs in his evidence. This order was made on August 16, 2005.

[6] The Tribunal resumed hearings on September 28, 2005 at which time the Commission asked for a ruling that the Union must call certain of the witnesses. Over the objections of the Union, the Tribunal required the Union to present the evidence, including advance will-say statements, for ten witnesses, some of whom the Union would not choose to present as its witnesses. The Tribunal attempted to soften the blow by statements that all counsel would have great leeway in examining these witnesses, recognizing that the order it was making was “for convenience” and not because these persons were the witnesses of the party calling them “in the ordinary sense”.

[7] The Tribunal went on to explain that it had considered the submissions of the respondents that, as the Tribunal was requiring these witnesses to appear, it should question them, but it had rejected that approach for reasons it would set out. It recognized that the order was an “extraordinary step” and quoted a passage from Sopinka, Lederman and Bryant[^2] :

In general terms it is the role of the parties, not the court, to call and examine witnesses. At common law, counsel have wide latitude to determine what witnesses to call, in what order , and what evidence to adduce from them. There are no witnesses which a party must call.

[8] The Tribunal continued its reasons as follows:

[21] The Tribunal took this unusual approach in order to bridge the gap between the original Complaint and the Amended Complaint. If these new allegations had been made earlier, the Commission would have had the investigative power under subsection 33(3)(d) of the Code to “question a person on matters that are or may be relevant…”.

[9] In substance, the Tribunal admits that, so far as these new allegations are concerned, it has abandoned the role of adjudicator for that of investigator, a role which belongs to the Commission, not to the Tribunal. In so doing, it has turned the proceeding into an inquisitorial one, in which it, and not the parties will determine who is to be called and what evidence it will hear. Having opened up the hearing by adding the additional, and uninvestigated, complaints, the Tribunal will just go ahead and investigate them itself. It does not appear to have occurred to the Tribunal that the proper course is to require those who want to put forward these additional complaints to adduce the evidence in support of them. That would be Mr. Tubbs and the Commission. At paragraph 22 of the reasons, the Tribunal quotes, but does not follow, the passage from Sopinka, et al on the limits to a trial judge’s involvement:

Further, subject to the power to recall a witness, the trial judge should leave the leading of evidence to the parties. A new trial may also be ordered if the trial judge conducts an inquisitorial type of proceeding.[^3]

[10] The Code provides for an appeal of the ultimate decision, but there is no provision for an appeal of an interlocutory order. However, the possibility of a judicial review is not foreclosed by the absence of a right of appeal. In Roosma v. Ford Motor Co. of Canada[^4] Reid J. of this court said:

Notwithstanding their reluctance to intervene in the proceedings of tribunals prior to their completion courts will do so in order to avoid wasting time and money. Thus, if it appears at the outset that a proceeding in a tribunal will be fatally flawed, a means exists by way of judicial review to challenge it. That is so even where an appeal is provided.

[11] In Gage v. Ontario (Attorney General)[^5] this court said:

If there is a prospect of real unfairness through denial of natural justice or otherwise, a superior court may always exercise its inherent supervisory jurisdiction to put an end to the injustice before all the alternative remedies are exhausted.

[12] The present applicants submit that these authorities exactly state the problem before me. They have been ordered to call certain witnesses as their witnesses in breach of their right to determine for themselves who will be called in their defence. This hearing is an inherently adversarial proceeding in which important rights are at stake for the Union as well as for Mr. Tubbs. The Tribunal has failed to recognize that its order is inherently inappropriate in such an adversarial setting. Further, the present applicants have been directed to prepare will-say statements for these persons, a process which inherently involves close communication with these persons and a selection, from all the things they might say, of those that are relevant. This is not a fair demand for the Tribunal to make, particularly where the persons, or some of them, are not persons the party wishes to call. Indeed, they may include persons whom the Union will wish to cross-examine in order to discredit the very evidence upon which it has worked to produce the will-say. Such a situation is the opposite of fairness, to witness and party alike.

[13] The respondents argue that the application is premature, but in my view, if the consequences are as the applicants submit, that is no barrier to intervention. As to the unfairness, the Commission relies on the general rule that the Tribunal is master of its own procedure and this application is a mere procedural skirmish and not an exception to the general rule. The Commission contrasts this case with cases where the denial of natural justice had occurred and was manifest. I note, however, that in its factum, the Commission skates carefully around the facts of this case, maintaining that there is no breach because “the union and other respondents [have not] been prevented from leading whatever evidence they wish in support of their case”. This is sheer sophistry: the right to call your witnesses includes the right not to call those you do not want to call. As pointed out in a passage cited by the Tribunal itself from Sopinka et al: “There are no witnesses which a party must call”.

[14] The Code allocates the carriage of the proceedings before the Tribunal to the Commission as a party. It is thus for the Commission to call the witnesses which it believes will establish the facts on which the Tribunal can find for the complainant. It will then be for the respondents to call the witnesses to establish their case. This process is one of the fundamental parts of our justice system. The parties diligently present all the material facts which will support their respective positions and will receive a dispassionate and impartial consideration from the trial judge. A trial is not a scientific inquiry conducted by the trial judge as research director: it is a forum for providing justice to the litigants.[^6] The centrality of the adversary system is not confined to trials, but is inherently part of administrative hearings as well: Hurd v. Hewitt[^7] . That was a case of a judicial review of the decision of a university grievance committee in which the Court of Appeal stressed that such hearings invariably are disputes between parties: there is a lis to be decided. Under our system, the driving force in the hearing is the adversary system which assumes the parties will bring the evidence and the tribunal will reach a decision based on that evidence. It is not the normal function of the tribunal to search out evidence and judges are criticized if they interfere so as to become advocates. The Court of Appeal stated that the duty of a tribunal is to decide on the evidence before it, to draw appropriate inferences from the failure of a party to call available evidence, but not to insist that evidence be called, and concluded:

“It would be a distortion of our system to have the tribunal determining what evidence is to be called and what persons are to be invited to intervene, notwithstanding the desires of the parties…”

[15] The Supreme Court of Canada has also spoken on the centrality of the adversary system:

“Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice … it seems clear to me that the principles of fundamental justice must also require that an accused person have the right to control his or her own defence.”[^8]

[16] In my view, the authorities demonstrate that the order made by the Tribunal requiring the present applicants to call certain witnesses and to prepare will-says of their evidence is a clear breach of natural justice and procedural fairness to the applicants and potentially to the witnesses and must be set aside. The applicants ask that the whole of paragraph 1 of the Tribunal’s order should be set aside. This would include the orders made that the Commission call and examine certain witnesses, which orders were not objected to by the Commission, but in my view that is no reason not to set them aside as the applicants ask, for they also taint these proceedings with injustice and so put the utility of the entire hearing at risk. I have also considered whether I should not only quash the order, but also make the order that the Tribunal ought to have made. It is the master of its own process, but only to the limits of natural justice and procedural fairness. Since these principles require that the parties be free to conduct their own cases, I have decided that I do not trench upon the Tribunal’s authority by declaring what is the only order possible in the circumstances: that the parties be free to conduct their own cases as they see fit.

[17] I am well aware of the rarity of successful applications for judicial review of interim orders made in hearings which are on-going. However, this hearing has already taken 13 days and is about to go entirely off the rails. The result of my not intervening will be a wasted 13 days and a further waste of the remainder of what will become a hearing hopelessly tainted with injustice to the present applicants. I am satisfied that the criteria for such an intervention, urgency and a failure of justice, are met.

[18] For these reasons an order will go setting aside the directions contained in paragraph 39(1) of the Interim Decision dated October 6, 2005 and substituting an order that the parties shall be at liberty to call only such witnesses as they choose to call in support of their respective cases.

[19] If the parties are unable to agree on costs, counsel may make brief written submissions within 30 days of the release of this decision.

Lane J.

DATE: January 2006

[^1]: R.S.O. 1990 c.L.1. [^2]: The Law of Evidence; 2nd ed. 1999, page 897, paragraph 16.2 [^3]: Page 900, paragraph 16.11 [^4]: (1988) 66 OR (2nd) 17 (Div. Ct.) [^5]: (1992) 1992 8517 (ON SCDC), 90 D.L.R. (4th) 537 (Div. Ct.), 14. [^6]: See Philips v. Ford Motor Co. of Canada (1971) 1971 389 (ON CA), 18 D.L.R. (3rd) 641 (Ont. C. A.) from which this passage is paraphrased. [^7]: 1994 874 (ON CA), [1994] OJ No. 2552 (Ont. C.A.); 20 O.R. (3rd) 639 (C.A.) [^8]: R. v. Swain 1991 104 (SCC), [1991] SCJ No.32, para. 35; [1991] 1 S.C.R. 933.