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Fairness - Limiting Cross-Examination. Noble v. Human Rights Tribunal of Ontario
In Noble v. Human Rights Tribunal of Ontario (Ont Divisional Ct, 2024) the Ontario Court of Appeal dismissed a JR, this from an HRTO ruling and reconsideration that found the applicant had not been discrimination again on the basis of race and colour.
Here the applicant argued that the tribunal unfairly limited his cross-examination by "prevent(ing) him from using will-say statements and the Response to his complaint, which were prepared by the Respondent’s lawyer, to impeach the credibility of two witnesses":a. The Tribunal did not unfairly limit Mr. Noble’s right to cross-examine the witnesses
[8] Mr. Noble had a right, as a matter of procedural fairness, to present his case “fully and fairly”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65at para. 128. The right of parties to participate in a hearing ensures that administrative decisions are made “using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker”: Baker, at para. 22.
[9] Cross-examination is an important part of the right to participate in a hearing before the Tribunal. Cross-examination has been recognized as “the greatest legal engine ever invented for the discovery of truth”: Innisfil Township v. Vespra Township, 1981 CanLII 59 (SCC), [1981] 2 SCR 145 at p. 167. But the right to cross-examination is not absolute. First, cross-examination is limited by the ordinary rules of evidence applicable at a Tribunal hearing: Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, ss. 15 and 23(1). Second, cross-examination can be limited by the Member in order to ensure the hearing is “fair, just and expeditious”: Rules of Procedure, R. 1.7.
[10] The Tribunal has the power to make rules governing its own practices and procedures: Human Rights Code, R.S.O. 1990, c. H.19, s. 43. The Tribunal’s Rules of Procedure give Members the express power to “define and narrow the issues” and to “limit the evidence or submissions”, which includes the power to limit cross-examiantion: Rule 1.7(h) and (n), Macanovic v. Ontario (Attorney General), 2020 HRTO 19 at para. 110.
[11] At the start of the hearing, the Member made an evidentiary ruling about the use that could be made of the Respondent’s Response to Mr. Noble’s complaint and the will-say statements prepared by the Respondent’s counsel for two of its witnesses. The Member ruled that Mr. Noble could cross-examine the witnesses on the content of the will-say statements and Response but the will-say statements and the Response themselves would not be treated as prior inconsistent statements to the extent they contradicted the witness’ testimony at the hearing. The Member explained his ruling in the merits decision as follows:...[P]rior to the merits hearing no witness statements were provided by respondent’s counsel for either Lizana or Abayisenga. Instead, will-say statements were prepared by respondent’s counsel because they were no longer employed by the respondent and respondent’s counsel was unable to contact them. As such the applicant was advised that, for cross-examination purposes, it would not be appropriate to view the Response or the will-say statements as prior inconsistent statements. However, the applicant was directed that he would be permitted to crossexamine the witnesses on any alternate factual statements that were contained in the Response or the will-say statements. As such there was no significant restriction on the applicant’s cross-examination of the respondent’s witnesses. [12] The Tribunal did not err in its evidentiary ruling. When counsel for the Respondent delivered the witness statements, they made it clear the witnesses had not reviewed or confirmed the content of the will-say statements because they were no longer working at Carter’s. Counsel explained they used notes of what the witnesses had said at the time of the incident to prepare the summaries of their anticipated evidence. In those circumstances, there was nothing wrong with the Tribunal deciding the summaries prepared by counsel would not be treated as formal statements from the witnesses that could be admitted for the truth of their contents if they were not adopted by the witnesses.
[13] Mr. Noble relies on the Tribunal’s decision in Morrison v. Service Employees International Union, Local 1 Canada (SEIU), 2017 HRTO 270 to support his position that he was entitled to impeach the witnesses on the will-say statements and the Response. In Morrison, the Tribunal was dealing with the use that could be made of the applicant’s Application and will-say statement. The Tribunal found, at para. 63, that the will-say statement must have been prepared in consultation with the Applicant because it contained allegations about the incident that were not in her pleadings. The Tribunal rejected the Applicant’s disavowal of the will-say and found that she was responsible for the contents of that statement. The factual circumstances here are very different. The Tribunal found that Ms. Lizana and Ms. Abayisenga did not participate in preparing the will-say statements. The witnesses would also not have been involved in preparing the Response. The ruling in Morrison is, therefore, not applicable and the Tribunal did not err in finding that it would be unfair to allow Mr. Noble to rely on will-say statements for the truth of their contents when they were never confirmed by the witnesses.
[14] In any event, Mr. Noble was permitted to and did cross-examine the witnesses on the content of their will-say statements and the Response. As a result, the evidentiary ruling did not significantly restrict Mr. Noble’s right to cross-examine and did not undermine Mr. Noble’s right to procedural fairness.
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[27] The duty of procedural fairness is flexible and context-specific. The Member was entitled to limit the scope of the hearing to ensure it was fair, just, proportionate and expeditious: Human Rights Tribunal Rules of Procedure, Rule 1.7, Knight v. Indian Head School Division, 1990 CanLII 138 (SCC), [1990] 1 SCR 653 at 685, Tice v. The Human Rights Tribunal of Ontario, 2023 ONSC 5453 at para. 12. Given that this case involved a single, brief interaction between Mr. Noble and Ms. Lizana, the Member did not breach the duty of procedural fairness by defining and narrowing the issues as he did. . Terra Scapes Landscape Construction Inc. v. Ashtaryeh
In Terra Scapes Landscape Construction Inc. v. Ashtaryeh (Div Court, 2022) the Divisional Court granted a Small Claims Court appeal on fairness grounds, here for failure to allow cross-examination:Procedural Fairness
[23] The Appellant submits that the proceeding before the deputy judge was unfair because he was not given an opportunity to cross-examine the Respondent. The Respondent disagrees.
[24] In considering the procedural fairness issue, it is necessary to keep in mind the particular mandate and context of the Small Claims Court, as highlighted by the Court of Appeal in Maple Ridge Community Management Limited v. Peel Condominium Corporation, 2015 ONCA 520, at paras. 34-35:The Small Claims Court plays a vital role in the administration of justice in the province by ensuring meaningful and cost effective access to justice for cases involving relatively modest claims for damages. In order to meet its mandate, the Small Claims Court’s process and procedures are designed to ensure that it can handle a large volume of cases in an efficient and economical manner.
Failing to take the Small Claims Court context into account only serves to restrict access to justice by unnecessarily imparting formality and delay into a legal process that is designed to be informal and efficient. [25] In Riddell v. Huynh, 2021 ONSC 7112, Kristjanson J. of this court observed that the emphasis on accessible, affordable justice is reflected in the provisions that govern Small Claims Court hearings. Under s. 25 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the “Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.” Under s. 25, a “deputy judge has discretion to admit as evidence relevant documents and oral testimony regardless of whether or not the evidence is given or proven under oath or affirmation or admissible in evidence in any other court.”
[26] The Respondent relies on Earthcraft Landscape Ltd. v. Clayton, 2002 NSSC 259, at para. 14, in which the Nova Scotia Supreme Court held that the absence of cross-examination was not a breach of the principles of natural justice. In that case, the court observed that there were no authorities squarely on the issue of whether the principles of natural justice require a Small Claims Court to provide for formal cross-examination. While there was no cross-examination, the adjudicator had put the issues raised by each party to the other and effectively cross-examined the witnesses. The court found that “it is the substance, rather than the form, of cross-examination that is essential.”
[27] The parties were not able to direct me to any Ontario cases addressing the question of whether the failure to provide for cross examination in a trial before the Small Claims Court is a breach of procedural fairness.
[28] In Chanachowicz v. Winona Wood Ltd., 2016 ONSC 160, Hill J. found that the conduct of the trial by a deputy judge of the Small Claims Court was a miscarriage of justice, and set aside the judgment. In that case, the deputy judge had curtailed the defendant’s cross-examination of the plaintiff’s witnesses, erroneously excluded evidence, and did not permit the defendant to make closing submissions. The failure to permit the self-represented defendant to make closing submissions was found to be a sufficiently egregious error and denial of fundamental justice to allow the appeal.
[29] In respect of cross-examination, Hill J. noted, at para. 68, that: “[e]ffective cross-examination is recognized as the core of a fair trial and the right to cross-examine witnesses, while not absolute, should be without significant and unwarranted restraint.” (Internal citations and quotations omitted.) The curtailing of cross-examination by the defendant was an element of the unfairness of the trial as a whole. Hill J. provided the following guidance on the conduct of a trial involving self-represented litigants before the Small Claims Court, at paras. 78-79:The claims before the trial court were relatively straightforward. The quantum of damages claimed by the respective parties were not significant. But to litigants before the court, fair resolution of their disputes was important. The trial judge’s sense that the trial should be completed in a day was entirely reasonable.
Not simply from the advantage of hindsight, but as a prudent practice in presiding over litigation involving one or more self-represented litigants, the court should routinely, at the outset of trial, provide instructions and information about trial procedure…, caution about adherence to the pleadings, preliminary review of what the parties consider the live issues to be, the expected manner of their discharge of proof of essential facts, discussion of admissions and agreed facts and documentary exhibits and testimonial evidence of witnesses not appearing, information to a defendant that he can prosecute his Defendant’s Claim in part through cross-examination of plaintiff witnesses, consultation about a trial timetable, etc. [30] In this case, while recognizing that the Small Claims Court must hear and determine all questions of law and fact “in a summary way” and making allowances for the informality and efficiency necessitated in proceedings before it, I nonetheless find that the deputy judge’s failure to allow cross-examination was a breach of procedural fairness.
[31] In the circumstances of this case, the absence of cross-examination of either party was a significant gap giving rise to unfairness in the trial. That is because there was conflicting evidence as to how the changes to the project came about, whether they were requested by the Appellant and whether the Respondent brought to the Appellant’s attention that the changes would result in non-compliance with the grading plan. The Respondent testified that the changes were all made at the Appellant’s request. The Appellant testified that he provided feedback about aesthetics, such as the location of trees and plants, and not about grading, for which he relied on the Respondent’s expertise.
[32] The deputy judge found that the evidence as to who initiated the changes and whether the Respondent informed the Appellant that they were contrary to the plan was “lacking.” She nonetheless inferred that since there would be no reason for the Respondent to make the changes, the changes were made at the Appellant’s request. In order to make this inference, however, the deputy judge had to reject the Respondent’s evidence that he did not request changes to the grading plan. In making her findings, the deputy judge clearly preferred the evidence of the Respondent over the evidence of the Appellant. However, in the absence of cross-examination, the basis for preferring the Respondent’s evidence is not clear.
[33] Similarly, in awarding damages of $27,580 to the respondent, the deputy judge accepted that this represented the amount owing under the Contract. However, the Appellant disputed the amount owing. The Appellant’s evidence was that, even leaving aside the issue of the changes to the scope and plan, the balance owing was $21,676.08 and not $27,580, as the Respondent claimed. Again, there was conflicting evidence on a key issue. Neither party had the opportunity to test the other party’s assessment of damages through cross-examination. In awarding the Respondent the entire amount, the deputy judge must have preferred the Respondent’s evidence; she simply accepted that the amount sought by the Respondent was the balance due on the contract. The documents in evidence showed, however, that the Appellant disputed the balance owing, even without taking into consideration the grading issue and the additional costs.
[34] In my view, where there is conflicting testimonial evidence, trial fairness requires that the parties be afforded an opportunity to cross-examine each other’s witnesses. In this case, in preferring the Respondent’s evidence over the Appellant’s, the deputy judge in effect made credibility findings without explicitly stating so. Without cross-examination, however, the basis for finding one party more credible than the other is not apparent. The approach of the deputy judge was inappropriate and led to unfairness in the proceeding.
[35] This is not to suggest that procedural fairness requires formal cross-examination in every trial before the Small Claims Court. I agree with the finding in Earthcraft that it is the substance, rather than the form of cross-examination that is required. The issue is whether the evidence has been tested, whether by cross-examination by the opposing party or by questions from the adjudicator. In this case, the deputy judged posed a few questions, however, they related to the parties’ positions, and cannot be considered a testing of the evidence. Each party’s evidence was untested by cross-examination or otherwise.
[36] In addition, I find that the unfairness was compounded by the fact that Mr. Lof was given an opportunity to explain each of the documents that the Respondent sought to have entered into evidence and the Appellant was not. The Appellant’s documents were entered only as an after-thought, after the evidentiary portion of the hearing had been concluded. Moeover, there is nothing in the Judgment to suggest that the deputy judge considered the documents, or if she did not consider them, why they were not relevant.
[37] Accordingly, I find that the proceeding before the deputy judge lacked procedural fairness and that the Judgment must be set aside. . Shahin v. Intact Insurance Company
In Shahin v. Intact Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal, here where the appellant applied for 'catastrophic impairment' accident benefits which were denied by the insurer.
Here the court considered a procedural fairness argument, where the insurer's medical expert was not available for cross-examination by the appellant:[3] Ms. Shahin submits the hearing was procedurally unfair in several ways. Her central submissions are as follows: First, the Tribunal unfairly relied on the evidence of Intact’s expert, Dr. West. Dr. West, a neuropsychologist, prepared a report in which he diagnosed Ms. Shahin with an adjustment disorder but did not find her to be catastrophically impaired. He testified in-chief at the hearing but when the time originally allocated for his cross-examination was used to hear a motion, he never re-attended to be cross-examined. Ms. Shahin submits the Tribunal unfairly failed to insist he attend for cross-examination and breached procedural fairness by relying on his evidence in its decision.
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Did the Tribunal breach procedural fairness by relying on the evidence of Intact’s expert when he was not cross-examined?
[9] Ms. Shahin submits the Tribunal breached procedural fairness by not requiring Dr. West to re-attend for cross-examination. Dr. West had provided nearly 100 transcript pages of untested oral evidence. He initially re-attended but left when a motion brought by Ms. Shahin used the time allocated for his cross-examination. He did not respond when he was contacted to reattend. In Ms. Shahin’s submission, it is impossible to know that his unchallenged evidence did not influence the adjudicators. Further, in their reasons, the adjudicators cited the transcript of his evidence and relied on his report.
[10] Intact submits that the references to Dr. West’s evidence did not prejudice Ms. Shahin. It emphasizes that the Tribunal did not rely on Dr. West’s opinion regarding whether Ms. Shahin sustained a catastrophic impairment. Intact also submits that Ms. Shahin’s counsel strategically delayed cross-examining Dr. West by bringing a motion on the day that was allocated for Dr. West’s cross-examination.
[11] In my view, the Tribunal breached procedural fairness. Both parties rely on Baker, at paras. 23-27, for the factors to determine the level of procedural fairness owed in the circumstances of a particular case. In this case, those factors point to a high level of procedural fairness. This is most clearly evidenced by the nature of the hearing itself, which proceeded as a full, contested, oral hearing, with witnesses, including experts, examinations, and, apart from Dr. West, cross-examinations. The issues in the case were of substantial financial importance to Ms. Shahin.
[12] Once it became clear that Dr. West did not plan to re-attend for cross-examination and the Tribunal determined it would not order him to do so, it should have disregarded his evidence and struck his report from the record. ....
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[18] The Tribunal referred to Dr. West’s evidence both to support its conclusions that the accident did not cause Ms. Shahin any injury and that her impairment did not rise to the level of catastrophic. The Tribunal of course also relied on substantial other evidence in support of these conclusions. Still, Dr. West’s evidence infected the Tribunal’s conclusions on the central issues governing its decision. In these circumstances, the Tribunal’s reliance on the untested evidence of Dr. West breached procedural fairness. . Gloczi et al v. Dupont/Lansdowne Holdings Inc.
In Gloczi et al v. Dupont/Lansdowne Holdings Inc. (Div Court, 2024) the Divisional Court dismissed an RTA s.210 eviction appeal, here where the tenants did not attend the LTB hearing and argued that they did not receive "any of the correspondence sent by the landlord and the Board about the hearing".
The tenants argued further that "(t)hey were denied procedural fairness when the Board relied on evidence introduced by the landlord’s paralegal, who was not subject to cross-examination", which the court assessed on Baker principles:Were the tenants denied procedural fairness when the Board relied on Board documents and correspondence introduced by the landlord’s paralegal?
[6] The tenants submit they were denied procedural fairness because the Board’s conclusion was based on evidence introduced by the landlord’s paralegal. It submits there was no opportunity to cross-examine the paralegal because she was attending as a legal representative. In any event, she did not have firsthand knowledge of the correspondence. There was also no witness to testify to the Board’s procedures with respect to its correspondence. By contrast, the tenants themselves were subject to cross-examination on their evidence that they did not receive the communications.
[7] I do not accept that the Board’s reliance on the evidence from the paralegal and about the delivery of Board documents amounted to a breach of procedural fairness. Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras 23-27, sets out the factors to be considered in determining whether the requisition level of procedural fairness has been accorded. I address the factors below.
The nature and importance of the decision and the process followed in making it
[8] The decision being made was important. Losing a home is a very serious matter, especially for the tenants, who suffer from disabilities, speak a different language, and have a limited income.
[9] The process followed for making the decision allowed the tenants to testify at a review hearing after they did not appear at the original hearing date. While the Board relied on evidence that was admitted without cross-examination, the tenants did not seek to cross-examine the landlord’s paralegal. Additionally, as discussed further below, the disputed documents were a reliable form of evidence.
The nature of the statutory scheme
[10] The RTA is remedial legislation with a tenant protection focus. But the Board is also a high-volume tribunal. It is expected to proceed in an expeditious but fair manner. Section 183 of the RTA specifically requires the Board to adopt “the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues to be heard on the matter.” The Board’s procedure can include, in appropriate circumstances, admitting evidence that is unsworn and from a legal representative. Pursuant to s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (SPPA), the Board is empowered to admit documents, whether or not proven under oath or admissible as evidence in court. Rule 1.6 of the Board’s Rules of Procedure specifically provides that the Board may exercise its discretion to permit a party’s legal representative to give evidence where appropriate.
Legitimate expectations of the person challenging the decision
[11] In my view, it was not legitimate for the tenants to expect the Board not to rely on the disputed documents. The documents were not of a type that is usually controversial or subject to credibility assessments. The Board permitted the introduction of four documents. The first was a Board notice of termination accompanied by a certificate of service attesting that the tenants were personally served on June 9, 2022. The tenants would have been aware from the notice that arrears were owing. The landlord’s legal firm then sent two letters to the tenants: the first, dated July 28, 2022 advised the tenants that the landlord had filed an application with the Board; the second, dated February 13, 2023, advised the tenants of the upcoming hearing. The Board also mailed a notice of hearing on February 13, 2023 and a copy of the March 10, 2023 order.
[12] With respect to the letters from the legal firm, the tenants did not seek to cross-examine the landlord’s paralegal at the hearing. They were not precluded from doing so. The commentary to rule 5.2-1 of the Law Society of Ontario Rules of Professional Conduct provides that “there are no restrictions on the advocate’s right to cross-examine another lawyer.” The tenants submit that, in any event, her evidence would not reflect firsthand knowledge since she was not the writer of the letters. Nonetheless, she presumably could have answered questions about procedures at the firm for preparing and mailing correspondence if the tenants thought that information was important.
[13] However, as the Board noted, none of the legal correspondence was returned as undeliverable. The tenants did not put forward any theory of why these documents, which normally would be considered reliable, were plausibly not delivered in this case. They did not propose any questions that would have been asked on cross-examination that would have materially affected the assessment of the evidence.
[14] The circumstances here are distinguishable from Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083. The disputed evidence in that case was much less reliable than the disputed evidence here. A tenant was evicted because she allegedly committed an illegal act by throwing a rabbit off her 15th floor balcony to its death. The tenant and another witness testified that the rabbit jumped. The only evidence of an illegal act was from a police officer who read the notes of another police officer who had attended the scene after the incident. Neither police officer had witnessed the incident. The complainant who had provided a statement to the police did not testify. This court found that in those circumstances, it was unfair to allow the landlord to test the tenant’s credibility while the tenant had no opportunity to test the credibility of the complainant.
[15] The disputed evidence in the current case was of an entirely different order. It was not the third hand version of a hotly contested incident, but documents from the Board and a legal firm that were not returned as undeliverable. This does not mean the Board was required to accept the tenants received the correspondence, but it was not a breach of procedural fairness to admit the documents without cross-examination.
Respect for the procedural choices of the decision-maker
[16] The Board is entitled to control its own process. As set out above, it is expected to proceed in an expeditious manner and is entitled to admit unsworn evidence in appropriate circumstances.
Conclusion on procedural fairness
[17] Overall, because of the nature of the disputed documents, it was open to the Board to admit them into evidence. It also remained open to the tenants to provide evidence or a proposed explanation as to why or how they did not receive the correspondence. This could have included, for example, information about how mail was received in the building, or a lack of security related to mail. The tenant Ms. Glonczi did testify that she had lost the key to the mailbox “a couple of weeks” before the sheriff attended the unit on April 14, 2023. But the Board noted the letters from the legal firm would have been sent well before this time period. The Board found that, while the tenants may not have fully understood the documents, it was “highly improbable” that none of the letters, the notice of hearing, and the order of the Board were received. It was entitled to admit the documents and reach this conclusion. Doing so did not amount to a breach of procedural fairness.
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