Christoforou v. John Grant Haulage Ltd.

Christoforou v. John Grant Haulage Ltd.
Collection
Canadian Human Rights Tribunal
Date
2016-08-19
Neutral citation
2016 CHRT 14
File number(s)
T2097/1315
Decision-maker(s)
Bryan, J. Dena
Decision type
Ruling
Decision status
Interim
Grounds
Age
Disability
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2016 CHRT
14
Date:
August 19, 2016
File No.:
T2097/1315
Between:
Michael Christoforou
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
John Grant Haulage Ltd.
Respondent
Ruling
Member:
J. Dena Bryan
Table of Contents
I. Introduction 1
II. Background 1
III. Motion to exclude the evidence of Dr. Belchetz (“the Motion”) 3
IV. Respondent’s Submissions to the Motion to Exclude Dr. Belchetz’s Evidence 5
V. Commission’s Submissions to the Motion to Exclude Dr. Belchetz’s Evidence 8
VI. CMCC Discussions regarding Expert Evidence and Motion to Exclude 10
VII. Dr. Belchetz’s Report and Curriculum Vitae 11
VIII. Relevant Legislation, Caselaw and Rules 11
IX. Analysis 30
A. Independence and Impartiality 30
B. Relevance and Necessity in assisting the Trier of Fact 31
C. Absence of any Exclusionary Rule 37
D. Properly Qualified Expert 37
E. Cost-Benefit Analysis 37
X. Conclusion 39
I. Introduction
[1] This is a complaint made pursuant to sections 7 and 10 of the Canadian Human Rights Act, RCS 1985, c. H-6 (“the Act”), that the Respondent employer discriminated against the Complainant based on his age and disability, by terminating his employment in response to his request to work reduced hours. The complaint alleges the Respondent employer engaged in adverse differential treatment, termination of employment and established or pursued a discriminatory policy or practice, contrary to the Act. The complaint was referred to the Canadian Human Rights Tribunal (“the Tribunal”) by the Canadian Human Rights Commission (“the Commission”) on May 28, 2015. The Commission indicated that it would be participating at the hearing of this matter.
II. Background
[2] The Complainant was initially represented by (non-lawyer) Ms. Kathy Finstad. The Respondent has been represented by Mr. Aaron Crangle throughout. This matter was scheduled for hearing June 6 to 10 and June 13 and 17, 2016, in Toronto, Ontario. Mr. Daniel Poulin is counsel for the Commission. Mr. Poulin recently advised the Commission has reconsidered its position and decided it will not participate at the hearing.
[3] On April 28, 2016, Mr. Nikolay Chsherbinin advised the Tribunal and counsel for the Respondent and the Commission that he was retained to represent the Complainant.
[4] On May 30, 2016, Respondent counsel wrote to the Tribunal and other counsel requesting an adjournment of the scheduled hearing as a result of disclosure he had received from Complainant’s counsel on May 19, 2016. The Complainant opposed the adjournment request and a Case Management Conference Call (“CMCC”) was arranged for June 2, 2016.
[5] At the CMCC on June 2, 2016, counsel agreed to cancel the first week of the hearing, June 6 to 10, 2016. Another CMCC was scheduled for June 9, 2016 to confirm that the exchange of witness lists, will-say statements, and disclosure was complete so that the hearing scheduled June 13 to 17, 2016 could proceed with the Complainant’s and Commission’s evidence and to schedule any additional hearing days in August 2016 for the Respondent to present its case.
[6] On June 7, 2016, in anticipation of the CMCC scheduled for June 9, 2016, the Respondent sent an email to the Tribunal and other counsel noting that the Complainant’s family physician, Dr. Filomena Bautista, was not on the Complainant’s witness list. The Respondent stated: “The contents of the doctor[’s] reports are very much in dispute and relate to a central issue in the Application. Natural Justice requires that the respondent be given the opportunity to test the reliability and veracity of the applicant’s evidence by cross-examination.”
[7] The Respondent requested that the Tribunal refuse to enter Dr. Bautista’s medical records and reports into evidence and that it consider dismissing the Complainant’s case based on his failure to call Dr. Bautista as a witness and the exclusion of Dr. Bautista’s medical records and reports, which would result in no reasonable prospect of success.
[8] On June 9, 2016, I asked Respondent counsel if his concerns would be addressed if the Complainant made Dr. Bautista available for his cross-examination and he stated he would be satisfied with an opportunity to cross-examine Dr. Bautista. The Complainant agreed to co-ordinate the date for cross-examination with the Respondent and Dr. Bautista, likely to take place during the hearing dates in August 2016. I was not required to rule on the Respondent’s request.
[9] On June 9, 2016, Respondent counsel advised he intended to retain Dr. Brett Belchetz, as an expert, to review and critique the medical records, findings, opinions, etc., of Dr. Bautista, the Complainant’s family physician, in a written report, to be filed in accordance with Rule 6(3) of the Canadian Human Rights Tribunal Rules of Procedure (03-05-04) (“the Rules”) and to be presented as part of the Respondent’s case in August 2016.
[10] The Complainant was surprised the Respondent referred to Dr. Belchetz’s evidence as “expert evidence” as the Respondent had earlier advised it was not expert evidence. Complainant counsel objected to the proposed expert report and he objected to proceeding with his case on June 13, 2016 without prior receipt and review of the expert report. Commission counsel had no objection to the Complainant’s request for an adjournment to August 2016 and he advised that since the expert report would be provided well in advance of the hearing dates scheduled in late August 2016, the expert report was provided in accordance with Rule 6(3) and he had no objection to it.
[11] At the CMCC on June 9, 2016, the June 13 to 17, 2016 hearing dates were further adjourned to August 22 to 26 and August 29 to September 2, 2016, to allow the Complainant the opportunity to review the expert report of Dr. Belchetz and decide if he plans to make a motion to exclude the expert’s report and evidence. The Respondent was to provide the expert report by June 24, 2016. Pre-hearing motions, if any, were to be filed by July 8, 2016. The next CMCC was scheduled for July 11, 2016. The Tribunal provided counsel with the recent Supreme Court of Canada (“SCC”) judgment in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (“White Burgess”) in relation to a motion, if any, to exclude Dr. Belchetz’s expert evidence.
[12] The Complainant filed a motion on July 8, 2016 and the Respondent and the Commission requested time to file a response. On July 11, 2016, a brief CMCC was held to confirm the dates for the Respondent and the Commission to respond to the motion and a CMCC was scheduled for July 20, 2016 to discuss and possibly rule on the motion.
[13] On July 20, 2016, I summarized my understanding of the motion and replies to ensure I understood the parties’ arguments. Counsel confirmed my understanding and elaborated on their submissions. I explained that I required more time to review cases and to make a decision on the motion. I advised I would make my best efforts to issue the decision by August 8, 2016 and counsel were invited to forward any additional cases to my attention by July 29, 2016.
III. Motion to exclude the evidence of Dr. Belchetz (“the Motion”)
[14] The Motion seeks an order to exclude the letter of Dr. Brett Belchetz dated July 21, 2016 (“the report”) and his viva voce evidence, whether qualified as an “expert” or not.
[15] The grounds for the Motion are as follows:
The Respondent previously confirmed in its Amended Statement of Particulars dated November 9, 2015 that the Complainant provided sufficient medical documentation to indicate the Complainant was fit to drive, so this should no longer be an issue;
Contrary to the Respondent’s characterization during the CMCC on June 9, 2016 of Dr. Belchetz’s evidence as a critique of Dr. Bautista’s diagnosis, prognosis, assessments and record keeping, Dr. Belchetz’s letter went beyond critique and harshly criticized Dr.Bautista’s diagnosis, prognosis, assessments and record keeping;
Dr. Belchetz’s curriculum vitae did not list any training or experience to train or assess the standard of care of another physician;
Dr. Belchetz criticized Dr. Bautista’s processes but did not comment on the correctness of her diagnosis of the Complainant, nor did Dr. Belchetz offer any assessment of his own regarding the Complainant’s diagnosis or fitness to work, for 40 to 45 hours a week or at all;
Dr. Belchetz is not the Complainant’s treating physician and did not perform any assessment, evaluation or investigations of his own, nor did he talk to Dr. Bautista.His report is based on assumptions, speculation and hearsay; and
Dr. Belchetz was engaged by the Respondent solely to provide opinion evidence forlitigation purposes and is therefore a “hired gun”, who tailored his report to suit theneeds of the Respondent and not to assist the Tribunal.
[16] The Complainant supported his argument based with the following authorities: White Burgess; Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6; Westerhoff; and, Anderson v. Canada.
[17] The Complainant urged the Tribunal to assess the admissibility of Dr. Belchetz’s report and viva voce evidence before the hearing rather than to allow the report and/or evidence and determine what weight, if any, should be given to them at the conclusion of the hearing. The Complainant referred to White Burgess and Meady, to support his request for a decision on admissibility before the hearing.
[18] The Complainant referred to the admissibility criteria set out in White Burgess: 1) relevance; 2) necessity in assisting the trier of fact; 3) the absence of an exclusionary rule; and, 4) a properly qualified expert.
[19] Citing Westerhoff, the Complainant draws a distinction between Dr. Bautista, the Complainant’s treating physician, and Dr. Belchetz, who is a “litigation expert.” The Complainant submits Dr. Bautista is a participant expert witness who can offer fact evidence and opinion evidence based on her experience with, and assessment of, the Complainant, as his treating physician. Dr. Belchetz was engaged in June, 2016 solely for the purpose of expressing opinion evidence to assist the Respondent. Dr. Belchetz has had no direct involvement with the Complainant or the Respondent, during the period leading up to termination. The Complainant submits that Dr. Belchetz’s report is clearly assuming the role of advocate for the Respondent.
[20] The Complainant questions the relevancy and necessity of Dr. Belchetz’s evidence in light of his apparent advocacy for the Respondent and the lack of credentials that would permit him to offer his critical opinion of Dr. Bautista’s standard of care and diagnostic processes. The Complainant requests that the Tribunal exclude Dr. Belchetz’s evidence, whether as an expert or not, on the basis that his unreliable and unsubstantiated negative criticisms of Dr. Bautista are prejudicial to the Complainant.
IV. Respondent’s Submissions to the Motion to Exclude Dr. Belchetz’s Evidence
[21] The Respondent submits that Dr. Bautista’s notes and reports provided to the Respondent did not disclose a “disability”, but rather refers to stress, fatigue and anxiety. The Respondent explains that in order to defend the complaint, it requested disclosure in 2015 of Dr. Bautista’s medical records that support her notes and reports to the Respondent. The Respondent’s counsel acknowledged that he received the disclosure in September 2015 and that he referred to Dr. Bautista’s notes and reports when drafting the Respondent’s Statement of Particulars (“SOP”) and Amended Statement of Particulars (“ASOP”).
[22] The Respondent states in its response to the Motion that it:
…retained Dr. Brett Belchetz to review the clinical notes and records of Dr. Bautista to conduct a peer review. Serious concerns were raised by Dr. Belchetz in his report with respect to Dr. Bautista’s failure to record any objective diagnosis in her clinical notes and records, which are the foundation for the medical notes requesting accommodation that were provided to the Respondent.
[23] The Respondent also points out that Dr. Belchetz had serious concerns that Dr. Bautista did not provide information to the Respondent or to the Ministry of Transportation indicating that the Complainant may not be fit to work or work safely.
[24] The Respondent submitted that Dr. Belchetz’s evidence was “extremely relevant” and contained information that was likely to be outside the experience and knowledge of the Tribunal, and that it would assist the Tribunal to understand “…the medical notes and issues raised by the Complainant, and the Respondent’s duty to accommodate or not, so that the Tribunal can have all the information necessary to objectively decide this matter.”
[25] The Respondent submitted that the Rules allow evidence and information that a court may decide not to allow.
[26] The Respondent submits: “Further, an expert witness can be a doctor doing peer review. Dr. Belchetz’s critique is of assistance to the Tribunal, and Rule 6(3) has been complied with. The Respondent should therefore be permitted to file its report at the hearing and defend itself fully.”
[27] The Respondent cites the Tribunal’s ruling in Kelsh v. Canadian Pacific Railway, 2016 CHRT 9 (“Kelsh”), at paras. 17 - 22, and the review of subsections 50(1) and (3)(c) and 48.9(1) of the Act, and Rule 1, as support for the Respondent’s assertion that its submission of the evidence of Dr. Belchetz is consistent with its right to pursue a full and ample opportunity to appear, present evidence and make representations at the inquiry.
[28] The Respondent cited a Human Rights Tribunal of Ontario ruling in Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 (CanLII), at para. 354, as support for the principle that:
Any uncertainty about whether the evidence may be relevant should be resolved in favour of admitting it and allowing it to be tested through cross-examination. Admitting the evidence does not preclude the Tribunal from subsequently determining it has no relevance or assigning no weight to it….necessity is not to be judged by too strict a standard.
[quoting from paras. 31 and 33 of Radek v. Henderson Development (Canada) Ltd. [2004] B.C.H.R.T.D. No. 364]
[29] Relying on Kelsh, the Respondent submits there is no prejudice to the Complainant because the Complainant had an opportunity to file a responding report but did not do so.
[30] Citing and relying on First Nations Child and Family Caring Society v. Attorney General of Canada, 2012 CHRT 28 (“FNCFCS”), at paras. 11, 14, 15, and 18, the Respondent submits that:
issues with respect to the relevance and admissibility of the expert’s testimony are more properly decided when the witness is called. The panel member can then decide on what weight ought to be given to the evidence of the respective doctors. The Complainant’s motion is premature, and ought to be dismissed.
[31] In relation to the cases referred to in the Complainant’s Motion, the Respondent dismissed them as not applicable given that they are decisions of a “Superior Court of Justice, which has a higher standard of admissibility than the Canadian Human Rights Tribunal.”
[32] The Respondent reiterated that Dr. Belchetz’s evidence is relevant and necessary since the issues raised were likely outside the experience and knowledge of the Tribunal. The Respondent pointed out that Dr. Belchetz provided a signed Acknowledgement of Expert’s Duty that he will provide an unbiased opinion, and that Dr. Bautista had not signed an Acknowledgement of Expert’s Duty.
V. Commission’s Submissions to the Motion to Exclude Dr. Belchetz’s Evidence
[33] The Commission took no position on the merits of Dr. Belchetz’s evidence. The Commission noted that his report was filed as required by Rule 6. The Commission submitted the Tribunal must decide what weight to give to Dr. Belchetz’s evidence.
[34] The Commission further submitted that:
To dismiss the report[s] as requested by the Complainant would impose onerous obligations on parties before the Tribunal in future cases and would over judicialize the process before the Tribunal. Ultimately, it would be inconsistent with the necessary flexibility of the Tribunal’s process and would create obstacles for unrepresented complainants in the future.
[35] The Commission submitted that expert evidence can assist the trier of fact with necessary technical or scientific terminology or issues, to assist with the proper assessment of evidence.
[36] The Commission referred to the comments of Dickson J. in R. v. Abbey, [1982] 2 S.C.R. 24, at para. 42, to suggest that the role of the expert is to provide the trier of fact with a ready-made inference which, due to the technical nature of the facts, the trier of fact is unable to formulate.
[37] The Commission cited R. v. Mohan, [1994] 2 S.C.R. 9, at para. 22, to support the submission that the expert evidence must be necessary for the trier of fact:
i) to appreciate the facts due to their technical nature; or,
ii) to form a correct judgment on a matter if ordinary persons are unlikely to do so without the assistance of persons with special knowledge.
[38] In relation to relevance, the Commission cited R. v. Pascoe (1997) 32 O.R. (3d) 37 (C.A.), at para. 27, to submit that even potentially relevant evidence may be excluded if its prejudicial effect outweighs its probative value.
[39] The Commission submitted that if Dr. Belchetz’s report met the criteria for admissibility set out in case law and was filed in accordance with the Tribunal’s Rules, then it should be admitted. At paragraph 11, the Commission states that if Dr. Belchetz’s report does not deal with the specific issue before the Tribunal and it is not relevant or necessary, it still provides “contextual reality.”
[40] The Commission submits the Tribunal has the discretion to exclude relevant evidence if the probative value is misleading or the time required to introduce the evidence is disproportionate to its evidentiary value, as per R. v. Mohan.
[41] The Commission submits the Complainant’s motion cannot succeed without allowing for the trier of fact to weigh the evidence the witnesses will provide, and cites FNCFCS. The Commission submits: “the Rules do not contain a section to exclude an expert report and the Tribunal must be cautious not to resort to extraordinary measures such as striking out a large segment of a party’s evidence.”
[42] The Commission also submits that the Tribunal only has 10 Rules whereas the Federal Court has over 500, which the Commission submits is based on subsection 48.9(1) of the Act: “Proceedings before the Tribunal shall be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow.” The Commission notes that the Superior Court Rules of provinces do not bind the Tribunal.
[43] The Commission submits that Dr. Belchetz’s report may support the Respondent with respect to the issue of safety that it raised in its SOP and ASOP and cites the Federal Court of Appeal’s judgment in Canada (Human Rights Commission) v. Canada (Attorney General), 2014 FCA 131:
[21] I agree with the Federal Court Judge that the Supreme Court of Canada was not intending to create a separate procedural right to accommodate. There is simply one question for the purposes of the third step of the test: has the employer “demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer?” Once the employer has established this, then it has satisfied the requirements of the third step. Assuming that the first two steps are also satisfied (which they were in this case), it is a bona fide occupational requirement and it is not a discriminatory practice.
VI. CMCC Discussions regarding Expert Evidence and Motion to Exclude
[44] During the CMCC on June 9, 2016, the Respondent expressed its belief that the Complainant did not have a disability as alleged in the complaint, and suggested that without a disability there could be no discriminatory practice. The Respondent explained that Dr. Belchetz was engaged to critique the notes and reports provided by Dr. Bautista to the Respondent, in terms of the lack of a diagnosed disability and the lack of concern about the Complainant’s fitness to work or to work safely, in light of his reported symptoms. The Respondent acknowledges that its questions posed to Dr. Belchetz and Dr. Belchetz’s replies are also noted in the Respondent’s SOP and ASOP.
[45] During the CMCC on July 20, 2016, the Respondent expressed the view that sections 48.9 and 50 of the Act give discretion to the Tribunal to include evidence, but not exclude evidence. The Respondent also submitted that if Dr. Belchetz’s report was prepared and filed in compliance with Rule 6(3), then its admissibility was automatic and I had no authority to exclude the report. The Respondent was unaware that it was expected to qualify Dr. Belchetz as an expert within the scope of his expert opinion, which the Respondent classified as “peer review”, and Dr. Belchetz classified as “objective subject matter.”
[46] The submissions of the Commission and the Respondent did not address the recent Supreme Court of Canada decision, White Burgess. The Respondent suggested that superior court decisions were not applicable to the Tribunal and did not believe White Burgess was applicable to the Tribunal.
[47] The Respondent was agreeable to calling Dr. Belchetz to give viva voce evidence at the hearing as a non-expert. The Complainant wished to pursue the motion to exclude Dr. Belchetz’s evidence, whether as a qualified expert or not, and asked the Tribunal to consider White Burgess.
VII. Dr. Belchetz’s Report and Curriculum Vitae
[48] The Tribunal has reviewed Dr. Belchetz’s report and his curriculum vitae. Dr. Belchetz’s report consists of a letter dated June 21, 2016 that was prepared in direct response to questions posed by Respondent’s counsel. Dr. Belchetz states he is asked “….as an objective subject matter expert, to answer the following questions with regard to Mr. Michael Christoforou and the clinical notes prepared by his physician, Dr. Bautista.” Dr. Blechetz’s answers appear in order below the questions.
[49] The Respondent acknowledged during a CMCC that the questions Respondent’s counsel posed to Dr. Belchetz are issues raised in the Respondent’s SOP and ASOP and that the Respondent intends to pursue these issues in cross-examination of Dr. Bautista, and in its submissions.
[50] The Respondent acknowledged that Dr. Belchetz did not examine or assess the Complainant, and that he was not retained by the Respondent in an advisory capacity during the period before and after the termination of the Complainant’s employment.
[51] The Respondent acknowledged that the purpose of Dr. Belchetz’s evidence is to present some of the concerns raised in the Respondent’s SOP and ASOP through the opinion evidence of a medical professional.
VIII. Relevant Legislation, Caselaw and Rules
[52] The first issue I will address is the Respondent’s submission that Superior Court decisions regarding expert opinion evidence do not apply to the CHRT. The Respondent asserts that because of the administrative/non-judicial nature of the Tribunal, the Act only empowers the Tribunal to permit evidence that may not be admissible in a court and not to exclude evidence (aside from privileged communication which is expressly prohibited in subsection 50(4) of the Act).
[53] The Commission’s similar submission was that the Tribunal should not conduct its proceedings in a manner similar to a court, because this would make it too difficult for self-represented individuals. The Commission urged the Tribunal to admit the expert evidence and assess its weight after the hearing, in order to protect the Respondent’s right to make a full and ample presentation of its case.
[54] The Commission and the Respondent referred to the following sections of the Act to argue for a very low threshold of admissibility - or no threshold at all:
48.9 (1) Proceedings before the Tribunal shall be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow.
(2) The Chairperson may make rules of procedure governing the practice and procedure before the Tribunal, including, but not limited to, rules governing
(a) the giving of notices to parties;
(b) the addition of parties and interested persons to the proceedings;
(c) the summoning of witnesses;
(d) the production and service of documents;
(e) discovery proceedings;
(f) pre-hearing conferences;
(g) the introduction of evidence;
(h) time limits within which hearings must be held and decisions must be made; and,
(i) awards of interest.
[….]
50. (1) After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations.
(2) In the course of hearing and determining any matter under inquiry, the member or panel may decide all questions of law or fact necessary to determining the matter.
(3) In relation to a hearing of the inquiry, the member or panel may
(a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things that the member or panel considers necessary for the full hearing and consideration of the complaint;
(b) administer oaths;
(c) subject to subsections (4) and (5), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law;
(d) lengthen or shorten any time limit established by the rules of procedure; and,
(e) decide any procedural or evidentiary question arising during the hearing.
(4) The member or panel may not admit or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.
[55] Subsection 50(2) empowers the Tribunal to decide all questions of law or fact necessary to determine the matter. Subsection 50(3)(a) states the Tribunal may act in the same manner and to the same extent as a superior court of record to compel witnesses and order production and disclosure necessary for a full hearing. Subsection 50(3)(c) empowers the Tribunal to receive and accept any evidence or other information that the member or panel sees fit.
[56] In light of Tribunal decisions and Superior Court decisions reviewed herein, I conclude there is no support for the Respondent’s submission that section 50 permits the Tribunal to admit evidence, and that the Tribunal has no authority to exclude evidence.
[57] The Commission agrees that Supreme Court of Canada decisions Abbey and Mohan are applicable to the Tribunal. The Commission quoted Tribunal rulings that considered and applied Mohan. White Burgess expanded upon Abbey and Mohan and I find that it is applicable to the Tribunal.
[58] The real issue is whether the Tribunal can rule on admissibility before the hearing commences or, if the Act requires all arguably relevant evidence, including expert evidence, to be admitted, and at the end of the hearing, decide what weight, if any, to give such evidence.
[59] The present matter is scheduled to be heard at the end of August 2016. The expert opinion evidence of Dr. Belchetz was commissioned in June 2016, after the Respondent was granted an adjournment of the second week of the hearing in June to August 2016. The Complainant wants a ruling regarding admissibility as soon as possible so he can determine the presentation of his case.
[60] The Act allows the Tribunal to decide procedural and admissibility issues in a manner that is consistent with the principles of natural justice for all parties. Rulings by the Tribunal must balance the rights of all parties to a full and procedurally fair hearing.
[61] The Act and procedural fairness will often prompt the Tribunal to allow the ongoing introduction of issues and motions by parties, beyond the dates set for same, and the abridgement of the Rules, to ensure all parties have an opportunity to know the case they need to meet and to respond fully. All arguably relevant evidence from fact, observation and participation witnesses is usually admitted in keeping with the scheme of the Act, specifically subsections 50(1) and 50(3)(a). It is customary to determine weight of evidence at the conclusion of the hearing rather than limit or restrict fact evidence any party wishes to present, so long as it is arguably relevant.
[62] Expert opinion evidence, and opinion evidence in general, is different from fact evidence. The rationale for this was explained in R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 42:
Opinion Evidence
Witnesses testify as to facts. The judge or jury draws inferences from the facts. "In the law of evidence 'opinion' means any inference from observed fact, and the law on the subject derives from the general rule that witnesses must speak only to that which was directly observed by them" (Cross on Evidence, supra, at p. 442). Where it is possible to separate fact from inference the witness may only testify as to fact. It is not always possible, however, to do so and the "law makes allowances for these borderline cases by permitting witnesses to state their opinion with regard to matters not calling for special knowledge whenever it would be virtually impossible for them to separate their inferences from the facts on which those inferences are based" (ibid.)
With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. "An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary" (Turner (1974), 60 Crim. App. R. 80, at p. 83, per Lawton L.J.)
[63] In some cases, the Tribunal has deferred a ruling on the admissibility of expert opinion evidence to the time the evidence is called (e.g. FNCFCS). If, however, the concerns regarding admissibility of expert opinion evidence can be assessed and determined by a review of the report, the ruling can be made before the expert witness is called to testify or before hearing the evidence of the expert witness: Brooks v. Fisheries and Oceans, 2004 CHRT 20 (“Brooks”); Gaucher v. Canadian Armed Forces, 2006 CHRT 40 (“Gaucher”); and, Public Service Alliance of Canada v. Minister of Personnel for the Government of the Northwest Territories, 2001 CanLII 25850 (CHRT) (“PSAC”).
[64] In PSAC, the Tribunal considered Supreme Court of Canada decisions regarding expert opinion evidence when deciding a motion for leave to call more than the five expert witnesses permitted under the Canada Evidence Act, R.S.C. 1985, c. C-5. I will quote the portions of the PSAC ruling that confirm the Tribunal has, despite the clear language of subsection 50(3)(c), chosen to follow superior court and appeal court decisions in civil and criminal proceedings with respect to expert witnesses:
[2] The Respondent has also referred us to two authorities: R. v. Mohan [1994] S.C.J. No. 36, [1994] 2 S.C.R. 9 and R. v. Morin [1991] O.J. No. 2528 (Ont. Gen. Div.). These are criminal cases. The Morin decision merely holds that there must be a reasonable basis for calling expert witnesses. The Mohan case deals with the factors to be applied in deciding whether expert evidence is admissible. These factors include the relevance of the evidence and whether the trier of fact needs to hear the evidence in order to determine the facts of the case.
[3] Alan Mewett and Peter Sankoff have written that the general role of expert witnesses "differs from that of the ordinary lay witness in that the former gives testimony in order to assist the fact finder in coming to a conclusion from the facts before him or her, whereas the latter testifies as to those very facts." (1) Mewett and Sankoff advise that the use of expert witnesses "is as old as the trial process itself." (2) They suggest that there have been two concerns, historically, with respect to the use of such testimony. One is that it complicates the trial process, by introducing "redundant and superfluous" evidence. The other is that the weight of expert testimony is easily overstated and may undermine the role of the trier of fact. Although the courts have wavered on the issue, they "have generally attempted to restrict the use of expert evidence to instances where it is truly required." (3)
[4] The judgment in Mohan sets out some of the general principles in the area. The purpose of expert evidence is to assist an adjudicative body in deciding the facts of the case. It does so by providing the trier of facts with knowledge and "ready-made" inferences which stand outside the scope of their experience. It follows that experts have a special role in litigation which relies on statistical and scientific evidence. The issue in each instance is whether the evidence is "necessary" to decide the issues in the case. The standard of necessity is relatively relaxed, however, and should not be overstated. Mr. Justice Sopinka also remarks, at paragraph 24, that a trial should not become "a contest of experts with the trier of fact acting as referee in deciding which experts to accept."
[6] Counsel for the Respondent appeared to take the position that the relevant question is whether the proposed evidence would have a significant bearing on a distinct issue in the case. We agree with this view of the matter. A Tribunal is not in a position to assess the reliability of proposed witnesses at this stage of the proceeding and can merely determine whether their testimony would logically contribute to the defence. It is accordingly sufficient if it can be reasonably said that the expert's testimony is needed to determine one of the factual issues in the case. This excludes testimony which undermines the fairness or expeditiousness of the process.
[16] The appearance of justice is important in our law and the Tribunal must be seen as the author of its own decisions. Under section 50(2) of the Canadian Human Rights Act, a Tribunal has the authority to decide "all questions of law or fact necessary" to determining the matter before it. That task has been assigned to the members of this Tribunal. We have an obligation to make up our own minds on legal issues and cannot delegate that responsibility to expert witnesses, however learned they may be. The courts have always expressed concern with expert evidence that crosses into issues more properly decided by the trier of the case.
[17] We do not want to prevent the parties from arguing all matters of law that are relevant to a determination of the case. There is nothing to stop the Respondent from submitting a written brief on the international law, if that law is properly before us. It may also retain experts, and perhaps the experts in question, for the purpose of briefing counsel. The law is the province of counsel and the Tribunal, however, and we are firmly of the view that it should be raised in argument, rather than as expert or opinion evidence. We leave it to the Respondent to decide who will present these arguments before us.
[20] We accept that Mr. Weiler testified as an expert witness in P.S.A.C. v. Canada Post. The Respondent did not explain, however, why it needed his evidence to answer the complaint before us. It will be apparent that we do not feel it would be appropriate to elicit his opinion of the law. In our view, the Respondent has accordingly failed to demonstrate that the evidence of Mr. Weiler would assist the Tribunal in deciding the facts of the case.
[65] Expert witnesses should only assist the Tribunal with drawing inferences on technical facts beyond the knowledge of the Tribunal, and expert witnesses should not give opinion evidence on legal issues that are within the mandate of and expertise of the Tribunal. The Tribunal will consider whether the expert opinion evidence is presented for the purpose of usurping the Tribunal’s role to decide the “fundamental issue” in the case: Brooks, para. 13; and, Gaucher, para. 12.
[66] In Keith v. Canadian Armed Forces, 2015 CHRT 4 (“Keith”), the Tribunal ruled on a motion to exclude expert opinion evidence and noted that, notwithstanding s. 50(3)(c) of the Act, Mohan and Abbey were applicable to the Tribunal:
[21] This motion is brought by the Respondent to exclude David Jacobs as an expert witness as part of the Complainant’s case. The Respondent alleges that expert evidence should only be admitted if the matter in issue requires specialized expertise to assist the Tribunal to understand the factual matter to reach a proper conclusion.
[22] The Complainant’s position is that Mr. Jacob’s report (the Report) is necessary to assist the Tribunal in evaluating the Respondent’s claim that Royal College certification is a bona fide occupational requirement (BFOR) for the position sought by the Complainant; and further, that the report is of a technical subject matter not within the expertise or knowledge of the Tribunal.
[23] The Complainant’s Motion materials state that the Report provides detailed information about the regulation of doctors by the CPSO, its role, its powers and its duty to the public. It addresses the issue of CPSO recognition of specialists and how this relates to certification from the RCPSC.
[24] The Respondent claims, at page 2 of its Motion Record, that the opinion evidence “consists primarily of a recitation of the statutory and regulatory framework for medical regulation” and that the report is “akin to calling expert evidence on domestic legal issues” which is “not outside the experience and knowledge of this CHRT.”
[25] The Canadian Human Rights Act, R.S.C., 1985, c.H-6, section (50)(3)(c) provides the Tribunal a more generous latitude in the admission of evidence as would otherwise be in a court of law. Nevertheless, both parties have referred to the leading case of R. v. Mohan 1994 CanLII 80 (SCC), which at paragraph 17 states that the admission of expert opinion evidence depends on the application of the following criteria: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. The Mohan decision makes reference to the earlier decision of R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 SCR 24, as being illustrative of the necessity requirement.
[26] I believe that the Tribunal should follow the interpretation of Dickson J., in R. v. Abbey that the [opinion expert] evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. For the expert evidence to be admissible it must be such that “ordinary people are unlikely to