Marshall v. Membertou First Nation

Marshall v. Membertou First Nation
Collection
Canadian Human Rights Tribunal
Date
2021-10-18
Neutral citation
2021 CHRT 36
File number(s)
T2440/9919
Decision-maker(s)
Raymond, K.C., Kathryn A.
Decision type
Ruling
Grounds
Disability
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2021 CHRT
36
Date:
October 18, 2021
File No(s).:
T2440/9919
Between:
Stephen Marshall
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Membertou First Nation
Respondent
Ruling
Members:
Kathryn A. Raymond, Q.C.
Table of Contents
I. Introduction 1
II. Overview & Outcome 1
III. The Facts 4
A. The Complaint 4
B. The Proceeding Before the Tribunal 4
(i) The Need to Identify What Went Wrong in the Proceeding 4
(ii) Case Management 6
(iii) The First Day of Hearing 8
(iv) The Second Day of Hearing & Decision Not to Testify 12
(v) The Third Day of Hearing & Mr. Marshall’s Explanation 13
IV. Framing the Issues 15
A. The Order of Decisions 15
B. The Need to Define the Issues 16
C. The Need for Active Adjudication 18
D. The Parties’ Initial Submissions Respecting the Motion to Re-Open 22
E. Analysis: Framing the Issues in the Motion to Re-Open 25
F. The Parties’ Initial Submissions Respecting Motion for Non-Suit 28
G. Analysis: Framing the Issues in Motion for Non-Suit 28
H. Procedural Considerations for the Motion for Non-Suit 30
(i) Motions for Non-Suit in Context 30
(ii) Making a Prima Facie Case of Discrimination 30
(iii) The Election 31
(iv) Practical & Strategic Considerations 32
(v) Non-suit Motions Before the Tribunal 33
(vi) Approach to the Lack of Election in Considering the Motion 39
I. Summary of Issues to be Determined 39
V. Motion to Re-Open Case 39
A. Analysis & Ruling 39
B. Conditions Upon Re-Opening the Case & Commentary 45
VI. Motion for Non-Suit 47
A. Evidence respecting Alcoholism 47
B. Submissions 50
C. Analysis and Ruling 51
D. Decision respecting Membertou’s Election 55
VII. Summary of Outcome and Orders Granted 56
I. Introduction
[1] The Respondent, Membertou First Nation (“Membertou”), seeks an Order dismissing a human rights complaint brought against it in the middle of the hearing for lack of evidence. The Complainant, Mr. Marshall, seeks an Order to correct a significant procedural error to “save” his complaint from being dismissed before it is fully heard.
[2] Mr. Marshall is an under-represented litigant. Membertou says that as a matter of principle Mr. Marshall should be expected to be held to his decisions so that there is certainty and finality within this proceeding.
[3] It is not the Tribunal’s role to advise the parties how to present their case or to “fix” any error made by a self-represented or under-represented litigant. At the same time, the errors made by Mr. Marshall based on his representative’s advice could end his ability to have the inquiry into his complaint decided on its merits. Should he be bound by his reliance on his representative, to such prejudice?
[4] Finality and fairness, both principles that apply to legal proceedings, are in conflict here and raise fundamental issues respecting the appropriate procedure before this Tribunal.
II. Overview & Outcome
[5] In anticipation of the hearing into the complaint, Mr. Marshall had filed a Statement of Particulars with the Tribunal. At the hearing, evidence was presented on behalf of Mr. Marshall by his representative. After calling some of the listed witnesses, Mr. Marshall’s representative announced that Mr. Marshall would not testify. It is routine that complainants will testify in support of their own complaint. After hearing from one additional witness, the representative closed Mr. Marshall’s case. Mr. Marshall did not offer the further evidence that he had identified or disclosed as particulars in his Statement of Particulars.
[6] At the time, the Tribunal was under the impression that Mr. Marshall’s representative was a licensed, practicing member of the bar, with litigation experience. The Tribunal was advised on the third day of hearing that, while she holds a law degree and articled, in the twenty plus years since, she has not litigated, and she is not a practicing lawyer.
[7] Membertou immediately brought a motion for non-suit. A motion for non-suit is a somewhat unusual motion in an administrative law proceeding before a tribunal. Such motions are unusual before this Tribunal. In part, this is because complaints are screened for some evidence to ensure that they warrant at least inquiry; Mr. Marshall’s complaint was screened, investigated, and referred by the Canadian Human Rights Commission for inquiry to this Tribunal. If the motion is granted, there will not be a full inquiry because of the Complainant’s decision to not testify and to close his case.
[8] The motion for non-suit alleges that Mr. Marshall did not provide necessary evidence to meet the legal requirements of a valid complaint in accordance with the Canadian Human Rights Act, RSC 1985, c H-6 (the “Act”). Membertou takes the position that, even if the Tribunal accepts all the evidence at face value that Mr. Marshall did present at the hearing through other witnesses, his case does not cross the threshold of a potentially valid complaint. Membertou submits that it should not be required to submit evidence to defend a complaint that cannot succeed. Its motion requests an Order dismissing the complaint without the need to complete the hearing.
[9] It is of relevance to these reasons that specific, allegedly missing evidence is the sole ground for Membertou’s motion for non-suit. In this regard, complainants are required to prove that they have a characteristic that is protected by the Act, in short a “protected characteristic”. Mr. Marshall’s complaint is based on the protected characteristic of disability. Membertou submits that there is no evidence that Mr. Marshall has a disability because he did not testify that he has a disability. Membertou further argues that the Tribunal cannot make a factual finding that Mr. Marshall has a disability based on the evidence that was presented at the hearing. In summary, Membertou submits that, because there is no evidence that Mr. Marshall has a protected characteristic under the Act, namely disability, the complaint should be dismissed without any need for Membertou to call evidence in its defence.
[10] Mr. Marshall’s representative made a serious error in not advising Mr. Marshall to testify and by closing Mr. Marshall’s case, apparently having decided not to present the remainder of Mr. Marshall’s evidence. She made other serious procedural errors, that did not appear to be appreciated by her or by Mr. Marshall at the hearing. In hindsight, she also appears to have possibly made other errors. These were not immediately clear to the Tribunal, as the Tribunal was in the process of reviewing the evidence for the first time at the hearing. The Tribunal is not privy to the strategic and procedural decisions parties make about how best to present their case or to the lack of any strategy or appropriate preparation in this regard. The latter tends to appear over time. It appears that some of these errors were also not immediately apparent to Membertou either, given the limited grounds of its motion. As explained below, these other errors provide factual background and significant context to these reasons, and, are therefore, necessary to identify.
[11] Mr. Marshall provided an explanation, likewise, described below, regarding why he decided not to testify at his hearing and to close his case. His motion asks that he be permitted to re-open his case so that he can provide further evidence.
[12] He further submits that there is sufficient evidence already upon which the Tribunal can find that he has the protected characteristic of disability. He asks that the hearing into his complaint proceed and, in his words, “relies upon the truth”.
[13] Membertou objects to Mr. Marshall re-opening his case. Membertou argues that Mr. Marshall made an informed decision to close his case and a strategic decision to do so. It submits that Mr. Marshall finds himself in a situation, not of error, but rather, of regret, and that his motion to re-open his case is driven by “buyer’s remorse”.
[14] For reasons that follow, I have decided that it is in the interests of the proper administration of justice before this Tribunal, in the unique circumstances of this case, to grant Mr. Marshall’s motion to re-open his case, to dismiss Membertou’s motion for non-suit but to permit Membertou to provide evidence in support of its defence of the complaint. In other words, both parties are permitted to proceed with further evidence. This decision is necessary to avoid a miscarriage of justice.
III. The Facts
A. The Complaint
[15] Mr. Marshall is a member of Membertou First Nation. Mr. Marshall is, therefore, in the position of having brought a complaint against his First Nation. It is unfortunate that this matter was unable to be settled and has led to an adversarial hearing between these parties.
[16] Mr. Marshall is an avid and talented hockey player. Between August 2016 and May 2017, he was employed as a Zamboni driver and maintenance worker at the Membertou Sport & Wellness Centre in Nova Scotia. Mr. Marshall claims that Membertou, including its Chief and Council, was aware that he had a dependency on alcohol prior to hiring him. He says that this is because he worked seasonally for Membertou Public Works from 2006 to 2012 and that, during that time, Membertou arranged to provide him with treatment for alcoholism. Mr. Marshall apparently eventually stopped working for Membertou because of absenteeism. He was then rehired in 2016 but terminated in 2017.
[17] Mr. Marshall filed a complaint that he was discriminated against by Membertou in his position as Zamboni driver allegedly because 1) he was subjected to adverse differential treatment during his employment, and, 2) his employment was terminated based on the belief that he had an alcohol dependency and was drinking on the job.
[18] Mr. Marshall complains that he appealed the decision to the Chief and Council of Membertou but that they did not listen to him and upheld the termination. He alleges that the Councillors had their mind made up beforehand and that one said to him “Didn’t this happen to you before?”
B. The Proceeding Before the Tribunal
(i) The Need to Identify What Went Wrong in the Proceeding
[19] The extent and nature of what went wrong as this complaint has proceeded is a highly relevant reason why Mr. Marshall is successful in his motion. The Tribunal would not normally focus upon the errors or potential errors of a party’s representative, only on the party’s position. The Tribunal would prefer to not be critical of any representative’s participation. However, in this case an explanation of major errors made by the representative is unavoidable and necessary to understand the Tribunal’s reasoning and conclusion that Mr. Marshall is not bound by his initial decision to not testify and to close his case.
[20] Parties are usually bound by what their representatives do and the positions they take. The Tribunal had to decide what was more important: ensuring that the hearing allowed both parties a full and ample opportunity to be heard, as required by Rule 1(1)(a) of the Tribunal’s Rules of Procedure under the CHRA (03-05-04) (the “Rules”), or, adhering to the principle of finality, which encompasses the expectation that a party has one shot at making their case and the rule that a party is bound by their representative’s position, or, if self-represented, the positions that they take. The Tribunal also considered the importance of adherence to the evidentiary and procedural rules applicable to proceedings. Further, the Tribunal had to balance Rule 1(1)(a) with Rule 1(1)(c) respecting the need for the hearing process to be as expeditious and efficient as possible. As will be seen, the Tribunal has chosen to ensure the “full and ample opportunity to be heard”. This is in the interest of the integrity of this specific proceeding and reflects to some degree the expectation that proceedings will be more informal than in a court, as is also prescribed in Rule 1(1)(c).
[21] The disparity between the parties’ representatives is also relevant context. Membertou’s representative raised several technical objections during the hearing that Mr. Marshall was unable to address effectively at the time. Membertou could even be perceived by some to be taking a technical position in response to Mr. Marshall’s desire to continue with the evidence for his complaint.
[22] The Tribunal cannot ensure that there is an absolutely level playing field between the capabilities of the parties at a hearing in terms of how they choose to present their case. However, the Tribunal can balance a significant disparity to the extent of ensuring that the procedure is fair to all. This decision represents the Tribunal’s effort to find a resolution that is procedurally fair to both parties.
[23] As a final contextual comment, it can take some time for a court or tribunal to recognize that errors are being made by a party that are endemic and not a “one off”. Adjudicators are trained to assume that the decisions counsel make on behalf of their clients are deliberate and perhaps strategic decisions, that a representative, at the outset, should know their case best, and that interfering can have unintended and sometimes prejudicial effects. That concern about intervening too much arose initially in this case.
[24] Parties who proceed to a hearing are required to file a Statement of Particulars with a list of arguably relevant documents and a list of proposed witnesses to make disclosure of the case they intend to present at the hearing. Of relevance here is that Mr. Marshall’s Statement of Particulars appeared well prepared and demonstrated an understanding of what appeared to be, from his perspective, relevant facts and arguments. The Statement of Particulars appeared to set out the necessary evidence to support a finding of discrimination, including that Mr. Marshall had an alcohol dependency. Eight witnesses were listed on behalf of Mr. Marshall. All were said to be able to testify either that Mr. Marshall was not drinking at work on the relevant occasions, or that Mr. Marshall had an alcohol dependency or that Membertou had knowledge that Mr. Marshall had a history of alcohol dependency. While not all the arguably relevant third-party documents had been collected and disclosed, Membertou did not raise any issue with the rest of the non-disclosure of these arguably relevant documents, including documents that were stated to confirm Mr. Marshall's alcohol dependency. Because of this background, the Tribunal assumed that Mr. Marshall’s representative was reasonably knowledgeable about what the issues were in this discrimination case.
[25] The decision begins with what went wrong. The first error was the failure of Mr. Marshall’s representative to recognize when the hearing was starting.
(ii) Case Management
[26] A case management conference call with the parties’ representatives was arranged by the Tribunal to plan for the hearing. I will note here that Membertou’s counsel is a noted and experienced litigator, having been awarded the distinction of Queen’s Counsel, with over 25 years of litigation experience.
[27] After a discussion of everyone’s availability and the length of time required to present each case, four dates for the hearing were agreed upon by the parties. Dates were set for the provision of an electronic joint exhibit book to be provided to the Tribunal and for finalized witness lists to be exchanged. This was to occur a few weeks before the hearing was to commence. The Tribunal advised that there would likely be another pre-hearing conference close to the hearing dates to further plan for the hearing. Whether the hearing would take place in person or virtually by video was an outstanding issue at that time.
[28] A written summary of the decisions made at the case management session was provided to the parties by the Tribunal. This summary noted the agreed upon hearing dates.
[29] A separate hearing notice was later sent to the parties by the Tribunal.
[30] Other correspondence was sent by the Tribunal to the parties that either referenced the hearing dates or related to matters that required action by the parties shortly before the hearing was to commence, that had been agreed upon or discussed at the case management conference.
[31] In the meantime, it had been determined that the hearing would proceed virtually. The correspondence covered topics that included facilitating the attendance of witnesses at the virtual hearing and the use of Zoom technology for the hearing. The parties failed to provide the joint exhibit book to the Tribunal by the required date; emails were sent on behalf of the Tribunal in follow-up. Other email consulted the parties about scheduling a pre-hearing video test hearing using the Zoom platform, to help the parties prepare.
[32] The Zoom video conference was held about a week before the hearing was set to begin. It was a practice session.
[33] The other purpose of the pre-hearing conference was to discuss matters of procedure at the hearing. This included explaining the obligation upon parties to prove their case with evidence at the hearing and an explanation of the need to do so on a balance of probabilities, among other key general concepts. General practical advice was offered respecting the calling of witnesses, as one example. It appeared that the procedural explanations by the Tribunal were understood by all the participants.
[34] Before the hearing was to start, Membertou’s representative provided a list of the witnesses he proposed to call in a Record of Appearance. When the hearing began, counsel advised that he had received the Complainant’s “witness list” the day before.
[35] Because of these events, it is difficult to understand how there could have been any ambiguity about the actual starting date of the hearing or a lack of understanding that the hearing was about to start.
(iii) The First Day of Hearing
[36] Mr. Marshall and his representative did not appear at the hearing. His representative was contacted by the Tribunal’s Registry Office respecting her whereabouts and that of her client. She and Mr. Marshall subsequently joined the hearing by video. Her explanation for their non-attendance was difficult to follow. Of greatest concern to the Tribunal, Mr. Marshall’s representative did not appear to understand that dates had been set for the hearing to start. She was also completely unprepared for the hearing. She offered this explanation: “…I know that we had put all these dates together but I didn’t know which they were going to start so I wasn’t prepared to start today.” She had not, in fact, prepared earlier for the hearing.
[37] Mr. Marshall’s representative advised that she had been on a conference call for work that morning. She, therefore, had been working and, in my view, should have had access to her calendar. The representative further explained that she did not “see the hearing dates”. She “knew they asked for many dates but I did not know that they said that we are starting on this date”. She said that “for some reason she never saw that”.
[38] Mr. Marshall’s representative did not appear to recall that hearing dates had been set directly between the parties and the Tribunal with her participation at the first case management session. More recent requests for dates by the Registry Office had been made to follow up on other pre-hearing arrangements. At the initial case management session, we had discussed the likelihood of a second case management conference by Zoom to be held right before the hearing. It seemed incongruous to the Tribunal that Mr. Marshall’s representative would attend the Zoom practice session but not understand that the hearing was supposed to start, and that she would not ascertain the date if she did not recall it. The start of the hearing had been planned with her participation and was obviously about to begin.
[39] The Tribunal pointed out that hearing dates had been set with the parties, a summary of the case management conference had been sent to the parties, a notice of hearing had been sent to the parties and that there had been a recent flurry of correspondence in preparation for the hearing start date. While acknowledging the potential that this might be the representative’s first hearing before this Tribunal, it was emphasized that she is to read communications received from the Tribunal and to remember what is arranged.
[40] It also became apparent that Mr. Marshall’s representative had not provided electronic copies of any proposed exhibits to Membertou or the Tribunal. She was directed to provide Mr. Marshall’s documents to Membertou’s representative and agreed to do so that day. In fairness, Membertou’s representative had not contacted Mr. Marshall’s representative to make arrangements for a joint exhibit book to have been filed in advance of the hearing as he had agreed to do at the first case management conference. Membertou’s representative had also been late in filing his proposed exhibits.
[41] As noted, counsel for Membertou advised that he had only received the “witness list” from Mr. Marshall’s representative the day before. Upon later review of the record, it appears that this was in fact a Record of Appearance that both parties are required to file just before the hearing starts. Membertou’s counsel had filed a Record of Appearance the day before Mr. Marshall’s representative filed his Record of Appearance. In referring to Mr. Marshall’s “witness list” at the hearing, counsel for Membertou stated that a “number of them are witnesses, if not all of them that would be, quote unquote, ‘under the employer’s direction’”. He indicated that none had been subpoenaed. He stated he was assuming that Mr. Marshall was not calling them as witnesses, and expressed concern, stating that he did not know how to deal with that issue and noting that the witnesses were not likely to be available as Mr. Marshall’s representative “had done nothing to secure their attendance”.
[42] Mr. Marshall’s representative indicated that she had two witnesses that would appear for certain. She said that for some reason she thought it all had to be done later. Instead of addressing the issue of whether she had contacted the witnesses she intended to call, she spoke instead about adding a witness, Richard Stevens, in the “list of witnesses” she had just provided, offering that he was added because he was not on Membertou’s “list” (i.e. Membertou’s Record of Appearance). Mr. Stevens is the manager of Human Resources at Membertou. Mr. Marshall’s representative stated that Mr. Stevens was “the only one who is not on there” from Membertou’s list that she would like to have testify.
[43] Mr. Marshall’s representative also spoke about the reasons why she wanted Membertou’s Chief, Chief Terry Paul, to give evidence. Chief Paul was also not on Membertou’s “list” but was included on Mr. Marshall’s list. This included that he had been the Chief at Membertou for 30 years, that he was the Chief when Mr. Marshall had received help from the Band previously, Chief Paul’s alleged knowledge of the history “having seen what had happened over the years”, and his alleged involvement in the investigation. Mr. Marshall’s representative indicated that Chief Paul “knows her client and knows his situation”. She stated that she “really wanted Chief Paul to be at the hearing”. [It should be noted that subsequently Mr. Marshall’s representative did not call Chief Paul to testify at the hearing.] She also stated that it was good that Troy Paul, the Human Resources Director, was on Membertou’s list. He was on her list, as well.
[44] Because of the comment by Mr. Marshall’s representative about adding a witness to her list because he was not on Membertou’s “list of witnesses”, in hindsight, it is possible that Mr. Marshall’s representative was under the impression that Membertou would be calling the witnesses on its list so that she did not have to call them. However, this is unclear because of changes respecting who ultimately testified and who did not. This is simply to say that Mr. Marshall’s representative may not have absorbed the procedural reality that she was required to call witnesses to prove Mr. Marshall’s case, although this had been discussed in case management.
[45] Mr. Marshall’s representative said that she had spoken to a few witnesses generally about willingness to testify but she had not contacted them to advise that the hearing was taking place. She did not do so although the need for witnesses to have reasonable notice of the time that they would testify had been discussed during case management. The representative then indicated that she would be prepared to proceed with the hearing the next day. This was of concern to the Tribunal.
[46] Counsel for Membertou advised that Membertou requires that employees called to give evidence during working hours receive subpoenas.
[47] Counsel stated that he did not believe that many of the witnesses could provide evidence that would assist the Tribunal in reaching a decision. He explained that Chief Paul had not been involved in the investigation that led to Mr. Marshall being terminated or any of the events that led to his termination and was only relevant to Mr. Marshall’s appeal to Chief and Council. Counsel indicated that he did not believe that another witness, Blair Paul, had any involvement in Mr. Marshall’s termination but that he needed to speak with Mr. Paul now that he knew he would be a witness. He advised that he had not spoken to all of the witnesses on the list provided by Mr. Marshall’s representative and was unable to be prepared for the following day.
[48] Mr. Marshall’s representative had, in fact, provided a list of potential witnesses with the Statement of Particulars that she filed months before. The Statement of Particulars filed by Membertou did not contain a list of proposed witnesses. In reviewing the record, it appears that when the parties were referring to “witness lists”, they were, in fact, referring to the Record of Appearance that each party filed just prior to the Tribunal sitting to hear the case. To be clear, it was Mr. Marshall who did not have sufficient notice of the witnesses Membertou proposed to call at the hearing because Membertou failed to provide this information.
[49] Mr. Marshall’s representative had not raised this issue, which is relevant to procedural fairness, with the Tribunal during case management.
[50] The hearing was adjourned to another previously scheduled hearing date to allow both party representatives additional time to prepare.
[51] Before adjourning, the Tribunal reviewed general procedural matters again with the parties. There was another discussion of the Tribunal’s Rules, the order of proceeding, the burden of proof upon a complainant, the standard of proof, the steps of a hearing, the need for evidence respecting discrimination and the issue of remedy, and the general approach to preparation for a hearing. This included such matters as cross-examination and the advisability of notetaking during the hearing. In part, it was explained that a complainant cannot put part of their evidence forward, wait to hear the respondent’s case, and then provide more evidence, known as “splitting your case”. General information was provided respecting what constitutes proper reply evidence. It was also re-explained that the Tribunal makes a decision based only on the evidence presented to it at the hearing and that it does not have access to the Commission’s file.
[52] In the course of discussion about procedural matters, counsel for Membertou expressed frustration with Mr. Marshall and his representative, indicating that it had been like “pinning Jell-O to the wall” and “one day he has an alcoholic problem, the next day he doesn’t”. He also indicated that Membertou had been dealing with this type of chaos all along.
[53] At one point during discussions, Membertou’s counsel asked Mr. Marshall’s representative when she received her law degree. She advised that she had obtained her law degree over 20 years previously.
(iv) The Second Day of Hearing & Decision Not to Testify
[54] When the hearing resumed, Mr. Marshall’s representative made an opening statement. She called five witnesses and questioned them. Counsel for Membertou cross-examined those witnesses.
[55] Mr. Marshall’s representative unexpectedly advised the Tribunal that she was calling her last witness and that Mr. Marshall would not be testifying. Discussion subsequently ensued between the Tribunal and the parties’ representatives about Mr. Marshall’s decision to not give evidence. The Tribunal gave Mr. Marshall an opportunity to reconsider his position. He was also asked by the Tribunal whether there was any impediment to his ability to testify. He was advised that, if he was not comfortable being a witness, solutions could be found to address his concerns. Mr. Marshall’s representative indicated that there was no impediment.
[56] The Tribunal asked Mr. Marshall’s representative if she would like to have an opportunity to consult with her client privately. She responded to the Tribunal’s comments without having spoken to or otherwise communicated with Mr. Marshall. The representative declined an opportunity to consult further with her client, stating that they had decided that they did not wish to put him on the stand. Mr. Marshall sat beside her. He remained silent throughout the proceedings. The representative confirmed that Mr. Marshall wished to close his case.
[57] Counsel for Membertou advised the Tribunal that Membertou was bringing a motion for non-suit. He requested an Order that the complaint be dismissed without the need for Membertou to offer a defence and provided initial oral submissions in support of the motion. As indicated, the arguments provided on behalf of Membertou hinged on the allegation that Mr. Marshall had not proven that he has a disability, namely alcoholism, which it submits is a required element of a successful complaint based on disability.
[58] There are a number of matters in Mr. Marshall’s Statement of Particulars concerning which Mr. Marshall did not provide direct personal evidence because he declined to testify. There are other key statements in his Statement of Particulars for which Mr. Marshall would have been the best or only source of evidence based on his personal knowledge. Because he declined to testify, he also did not testify about matters relevant to the remedy he seeks.
[59] The hearing was adjourned to the next hearing date to give Mr. Marshall’s representative an opportunity to prepare to respond to the initial submissions that Membertou’s counsel made respecting the motion for non-suit.
(v) The Third Day of Hearing & Mr. Marshall’s Explanation
[60] When the proceeding resumed, Mr. Marshall wished to speak on his own behalf. Mr. Marshall submitted that his representative had demonstrated in the evidence that she did offer at the hearing that he was wronged in this matter. He said that his disease, alcoholism, was first discovered when it was treated in 1998. He said, “it stays with you”.
[61] He indicated to the Tribunal that his representative is not a practicing lawyer. He said that he has no legal expertise. He was on welfare and could not afford a lawyer.
[62] When asked if his representative made an error, he said he felt that she had done the best she could. He said he trusted that he did not have to testify to prove his case.
[63] As indicated above, on the first day of the hearing counsel for Membertou asked Mr. Marshall’s representative when she obtained her law degree. The Tribunal notes that his representative referred to Mr. Marshall as her “client” at the hearing on one occasion and otherwise described herself as Mr. Marshall’s representative. The reference to “client” reinforced the Tribunal’s impression that the representative was a practicing lawyer. As explained above, the Tribunal was advised on the third day of hearing by Mr. Marshall’s representative that she holds a law degree and articled. However, in the twenty plus years since, she had not litigated. Mr. Marshall’s representative confirmed that she is not a “real lawyer”.
[64] It was also disclosed that Mr. Marshall and his representative have a personal relationship. The representative is Mr. Marshall’s girlfriend.
[65] It is the Tribunal’s assessment that Mr. Marshall clearly trusted his representative’s advice and was not prepared to criticize her directly to the Tribunal.
[66] Mr. Marshall’s representative stated that she made an error when she advised Mr. Marshall not to testify in support of his complaint. She said that because she is his girlfriend, she wanted to protect him. She was concerned that being a witness would hurt him as alcoholism is a shameful thing to have to talk about. She submitted that in trying to protect Mr. Marshall from the embarrassment of a shameful disease, she had done him a disservice.
[67] The representative further explained that she thought that the fact Mr. Marshall was an alcoholic was “a given”. She also pointed to evidence at the hearing that Mr. Marshall had gone to a facility called Crosbie House in Nova Scotia for a one-month alcoholism program. She stated, “you don’t stop being an alcoholic”.
[68] Mr. Marshall also said that he was concerned that the experience of testifying and being cross-examined in the hearing would lead him to begin drinking again. He stated that if he is accused of drinking, he starts to drink again. In support of his reasons for concern, he alleged that he had a relapse years before when a family member incorrectly accused him of drinking. He indicated that, likewise, his termination by Membertou occurred because they assumed that he was drinking when he was not. He spoke to a further alleged relapse after losing his job with Membertou.
[69] Mr. Marshall and his representative submit that it should be known to Membertou that Mr. Marshall is an alcoholic and, therefore, has a disability which is a protected characteristic under the Act. While Mr. Marshall avoided directly criticizing his representative, he also said that he trusted that not testifying would not be an obstacle to his complaint. I find, therefore, that Mr. Marshall relied upon the erroneous advice of his representative.
[70] As explained above, Mr. Marshall asked to be allowed to re-open his case after the motion for non-suit began.
[71] After initial discussions about the issues, the hearing was adjourned to permit the opportunity for further research by the parties and the filing of written submissions respecting Membertou’s motion for non-suit and Mr. Marshall’s motion to re-open his case.
[72] Before the case adjourned, Membertou’s counsel did not indicate what he intended to do if the motion for non-suit was unsuccessful. In other words, he did not raise the issue of whether he was under an obligation to make an election because of bringing a motion for non-suit, a procedural step that is explained below. Mr. Marshall’s representative did not ask whether Membertou’s counsel should have to make an election as a result of bringing a motion for non-suit.
IV. Framing the Issues
A. The Order of Decisions
[73] Membertou submits in its written submissions that the key issue is whether Mr. Marshall should be permitted to re-open his case. I agree. Ultimately, if successful, Mr. Marshall’s motion would overtake and negate a successful motion for non-suit by Membertou. Therefore, Mr. Marshall’s motion to re-open his case should be decided first.
[74] It is appropriate to also consider the merits of Membertou’s motion for non-suit so that there is a decision on this motion. This is of importance in the event I am incorrect in my ruling with respect to Mr. Marshall’s motion.
B. The Need to Define the Issues
[75] One of the most significant and contentious issues in these motions is how the issues in the motions should be framed. During initial oral submissions, Membertou’s counsel did not refer the Tribunal to case law explaining the legal test for a motion for non-suit. Instead, Membertou structured the issues by reference to case law where a party was trying to re-open their case after a final decision had been made by the court. This case law and Membertou’s submissions are explained below. This case law did not appear to the Tribunal at first blush to be strictly applicable to Mr. Marshall’s motion or to address all its issues.
[76] Both parties focussed on how the legal test in the case law provided by Membertou could be fitted to the facts here. It was not a good fit.
[77] None of the cases provided by Membertou involved a request to re-open a case prior to the defendant or respondent beginning their case. The case law provided sought the introduction of completely new evidence after the case ended. No case law was provided that discussed an under-represented litigant, or that touched upon the issue of whether a party should be bound by a highly prejudicial procedural or evidentiary error by their lawyer or representative. None of the case law involved a complainant closing their case in error, without testifying, based on the erroneous advice of their representative. Mr. Marshall’s representative advised that she had been unable to locate case law respecting errors by representatives or re-opening a case in these circumstances by the time we reconvened for what became initial oral submissions. As a result, the Tribunal discussed with the parties its preliminary view of how the issues could potentially be framed and what issues could benefit from the provision of further research and case law before we adjourned to allow time for further research and written submissions.
[78] It was the Tribunal’s preliminary view that one issue was whether it is fair for a party to be confined to an egregious error made by their representative that prematurely ends their case. The Tribunal encouraged the parties to locate and provide case law that was relevant to the facts or any analogous circumstance. The Tribunal privately wondered whether the type of representative might be relevant in terms of a parties’ reliance upon their advice, given the information that Mr. Marshall’s representative has a law degree from twenty years ago but is not a practicing lawyer.
[79] As explained, the motion for non-suit could end the inquiry on these facts before hearing from the Complainant, without all relevant evidence being presented. The Tribunal indicated during those preliminary discussions that, if the case law provided by the parties with their written submissions did not appear to apply, or if none were of direct relevance to procedural errors by representatives, the Tribunal would likely conduct research itself to determine whether there was such relevant case law. It is appropriate for the Tribunal to ensure that it does not overlook any key decision, whether the decision is ultimately found to assist the complainant or the respondent. The Tribunal indicated that, if it found any case law that would influence its decision on the motions, it would provide that case law to the parties and give the parties an opportunity to make further submissions.
[80] The Tribunal has not found cases on point with the facts here or that influenced its decision respecting the merits of the motions. The Tribunal did find authorities of general relevance to the practice of active adjudication by a tribunal or court, which has already been undertaken in certain respects in this case. Given the general nature of these authorities, it is not necessary to