Schecter v. Canadian National Railway Company

Schecter v. Canadian National Railway Company
Collection
Canadian Human Rights Tribunal
Date
2005-09-22
Neutral citation
2005 CHRT 35
File number(s)
T881/0104
Decision-maker(s)
Doucet, Michel
Decision type
Decision
Decision status
Final
Decision Content
Between:
Benjamin Schecter
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canadian National Railway Company
Respondent
Decision
Member: Michel Doucet Date: September 22, 2005 Citation: 2005 CHRT 35
Table of Contents
I. Introduction
II. Preliminary Matters
III. The Complainant’s Witness, Marshall Schecter
IV. The Facts
V. The Decision
VI. Conclusion
I. Introduction [1] On August 31, 2002, Benjamin Schecter (the Complainant) filed a complaint against the Canadian National Railway Company (the Respondent). He alleges that the Respondent engaged in a discriminatory practice on the ground of disability by failing to accommodate his relatives and himself in the provision of facilities contrary to section 5 of the Canadian Human Rights Act (the Act).
[2] What should have been a very simple matter, unfortunately turned into a confrontational and, at times, aggressive hearing. The ill-feelings and the deep-rooted distrust of the parties towards one another was very apparent and made any logical approach to find a solution difficult, if not impossible. On the other hand, throughout the hearing, the Complainant, BenjaminSchecter, during that part of the hearing in which he participated, and Counsel for the Respondent, Mr. William G. McMurray, acted respectfully towards the Tribunal and towards the other persons present at the hearing.
[3] The interruptions and disturbances during these proceedings were mainly the responsibility of the Complainant’s son and witness, Mr. Marshall Schecter. On numerous occasions, he showed disrespect towards the Tribunal and challenged its orders. He did not take lightly to any arguments or opinions which would differ from what he perceived to be the facts or the law. I will, during this decision, elaborate and comment on these circumstances, which eventually culminated in the Complainant leaving the hearing at the insistence of his son. The attitude of Marshall Schecter certainly did not help the Complainant’s case and prevented him from explaining and presenting, in a reasoned and logical manner, the events which brought him before the Tribunal.
[4] The Complainant, Benjamin Schecter, is a Queen’s Counsel and a member of the Quebec Bar. He is also a retired judge having served previously on the Quebec Court, criminal division. Moreover he served as a Member of the Canadian Human Rights Tribunal for a period of ten years, retiring a few months before this hearing. I had never met the Complainant before this hearing, nor did I find out before being appointed to hear the case, that he was a former Member of the Tribunal.
[5] The Canadian Human Rights Commission’s participation in this hearing was very limited. At the start of the hearing, Mr. Patrick O’Rourke, Counsel for the Commission, informed the Tribunal that the Commission had entered into an agreement with the Respondent which would settle, to the satisfaction of the Commission, the public interest issues in this matter. The Commission saw no need to further participate in the hearing and it informed the Tribunal of its intention to withdraw from the proceedings.
II. Preliminary Matters [6] At the outset, the Respondent raised some preliminary issues which I dealt with orally during the hearing. The Complainant also raised an issue relating to the issuance of subpoenas to witnesses. I will now formally address these issues.
[7] In a preliminary motion, the Respondent sought an order that the complaint be dismissed on a summary basis. The reasons for this request were threefold: the Complainant had not adhered to the disclosure process of the Tribunal; the issue of public interest which had been referred to the Tribunal by the Commission had been resolved; and the facts set out in the complaint did not disclose any matters which should be determined by the Tribunal.
[8] In order to dispose of this preliminary motion, it would be appropriate to review some correspondence exchanged between the parties, the Commission and the Tribunal.
[9] The President of the Canadian Human Rights Commission, pursuant to paragraph 44(3)(a) of the Act, requested, on January 6, 2004, that the Acting Chairperson, as he then was, of the Canadian Human Rights Tribunal institute an inquiry into the complaint, as she was satisfied that, having regard to all the circumstances, an inquiry was warranted.
[10] On January 27, 2004, the Commission advised the Tribunal that its disclosure of documents in this matter had been sent to the Complainant and to the Respondent. The Tribunal informed the parties, on March 18, 2004, that the case would proceed to hearing and that they were entitled to present evidence and make legal submissions in support of their arguments before the Tribunal. The parties were also provided with copies of the Canadian Human Rights Act, the Tribunal’s Rules of Procedure governing the practices of the Tribunal, a Tribunal’s publication entitled What happens next? A Guide to the Tribunal Process and a questionnaire to assist the Tribunal with the planning of the inquiry. The parties were asked to respond in writing to the questionnaire and were instructed to send a copy of the completed questionnaire to the other parties and to the Tribunal before April 8, 2004.
[11] On April 19, 2004, the Tribunal received a faxed copy of the Complainant’s questionnaire. In the section of the questionnaire entitled Remedies sought, the Complainant wrote Forcing principally to provide adequate parking facility at its stations, especially Central Station in Montreal, for handicapped persons. Further down in section 5 of the questionnaire, it was added in writing Damages to be considered. The Respondent’s questionnaire was filed on April26,2004.
[12] The Tribunal, as a result of the answers to its questionnaire, issued directions on June2,2004, pertaining to the scheduling of dates for the inquiry and disclosure. The Commission was directed to provide each party with a copy of its file by June 22, 2004. Pursuant to Rule 6(1) of the Tribunal’s Rules of Procedure, the Complainant and the Commission were directed to provide full disclosure by July 16, 2004 and the Respondent was directed to provide its disclosure by August 10, 2004. Furthermore, the parties were made aware of Rule 9(3), which explains that no previously undisclosed issue or evidence is to be led at the hearing Except with leave of the [presiding member] … and subject to a party’s right to lead evidence in reply.
[13] The parties were further advised that disclosure includes exchange between them of the documentary evidence and witness lists with will-say statements. It was also indicated that disclosure consist of not only documents a party intends to introduce as evidence at the hearing but those documents arguably relevant to the proceedings, whether or not a party intends to file them as evidence.
[14] The parties were also instructed to provide brief written particulars to outline the issues and the evidence that they would submit to the Tribunal. These particulars were to be filed with the Tribunal and copied to all parties by the deadlines which had been fixed.
[15] On August 13, 2004, the Complainant forwarded a letter to the Tribunal in which he named five potential witnesses but he did not provide will-say statements for these witnesses. That list did not include the Complainant, his wife or his son, Marshall Schecter. On page 2 of the letter, the Complainant listed the remedies and compensatory damages that he would be seeking at the hearing.
[16] The Respondent wrote to the Tribunal on August 17, 2004. It referred to the Complainant’s letter of August 13, 2004, and stated that this letter did not constitute proper disclosure and proceeded to list a series of questions that it wanted addressed. On August19,2004, the Respondent served on the other parties its list of proposed witnesses and documents.
[17] On August 23, 2004, a letter was sent to the Tribunal by Mr. Marshall Schecter, the son of the Complainant, in which he objected to certain documents contained in the Respondent’s list. He also provided further details concerning the compensatory remedies the Complainant would be seeking at the hearing and the list of his witnesses. He also indicated that the Complainant would be calling his wife and son as witnesses at the hearing.
[18] I will now address separately each of the issues raised by the Respondent in its preliminary motion. I will deal first with the issues of witnesses and disclosure of documents. According to Rule 6(1)f) of the Rules of Procedure of the Canadian Human Rights Tribunal, a party must not only list the names of the persons he wishes to call as witnesses but he must also provide in his disclosure a summary of their testimony. The Complainant never provided this summary for the witnesses he listed in his August 13, 2004 letter. In his August 23, 2004 letter, the Complainant suggested that he also intended to call his wife and his son as witnesses but he did not provide summaries of their testimony.
[19] It should have come as no surprise to the Respondent that these two witnesses would be called by the Complainant taking into consideration their close connection to the matters raised in the complaint. Even though a summary was not provided, the Respondent, with the information it had, was definitely in a position to anticipate the substance of their testimony. The purpose of a will-say statement is to prevent the other party from being taken by surprise when the hearing starts. I do not believe that this was the case in regards to these two witnesses and, no prejudice having been caused to the Respondent by the absence of the summary, I ruled that this objection was unfounded.
[20] In regards to the other witnesses listed by the Complainant, no summary was provided for them. It is for these witnesses that the Complainant requested subpoenas. According to section 50(3)a) of the Act, only those witnesses whose testimony are necessary for the full hearing and consideration of the complaint will be issued a subpoena and ordered to appear at the hearing of the complaint. With no will-say statement for these witnesses and no reasonable explanation for this failure to respect the rules of the Tribunal, I was not in a position to assess the relevancy of their proposed evidence.
[21] It is also important to understand that the issuance of a subpoena by the Tribunal is not an administrative act. The Tribunal has discretion in the decision to issue or not a subpoena. Section 50(3)(a) of the Act states that a member may issue a subpoena if the member considers it necessary for the full hearing and consideration of the complaint. (CTEA v. Bell Canada, T503/ 2098, ruling #2). Accordingly, not being in a position to consider if they were necessary, I refused to issue the subpoenas. I must add that a Tribunal hearing is not a fishing expedition and unless there is a relevant connection between the evidence which is sought from the witnesses for whom subpoenas are required and the matter before the Tribunal, subpoenas will not be issued.
[22] I will now address the issue relating to the disclosure of documents. The Tribunal’s primary obligations as it relates to disclosure lies in the need to protect the fairness and integrity of the process. This generally requires full and ample disclosure by the parties. Any exception should be seen as a qualification carved out of the general rule.
[23] Under Rule 6(1) of the Rules of Procedure a Complainant who intends to lead evidence or who wishes to adopt a position which differs from that of the Canadian Human Rights Commission must provide in writing:
The material facts which he will seek to prove in support of his case. The legal issues raised in the case, including the nature of the discrimination alleged. The relief which it seeks. All documents in its possession which are relevant to any matter in issue in the case and for which no privilege is claimed All documents in its possession which are relevant to any matter in issue in the case and for which privilege is claimed including the grounds for the claim. The witnesses it intends to call, including expert witnesses identified as such, and a summary of their testimony.
[24] The rules do provide remedy if a party tries to rely on a document which has not been disclosed. Rule 9(3) provides that if a party does not produce a document which is relevant, that party will not be able to introduce that document into evidence at the hearing except with leave of the Tribunal. Unless the Respondent can establish that the presentation of its case would be jeopardized by the failure of the Complainant to disclose the documents, I see no reason to dismiss the case on this basis. The remedy provided by the rule is sufficient, in my opinion, to cure the defect of non disclosure. If a document not disclosed by the Complainant was deemed essential to the Respondent’s case, the Tribunal would order its production.
[25] I fail to see how the allegations of improper disclosure raised by the Respondent could justify an order dismissing the complaint. These procedural requirements are there to protect the fairness and integrity of the process. The Complainant is an officer of the court and a former Member of the Tribunal and he is well aware of the procedures of the Tribunal and he will not be surprised if he is adversely affected if he does not respect them.
[26] In regards to the issue of damages, section 53 of the Act provides what remedies are available to the victim of the discriminatory practice, should his or her complaint be substantiated. In this case, that person is the Complainant, Benjamin Schecter. In his disclosure dated August13,2004, the Complainant referred to the remedies he was seeking. The question of whether these would be available to him depends on his ability to present relevant evidence as to the damages that the alleged discriminatory practice of the Respondent caused him. In his questionnaire and disclosure, he also referred to policy remedies which are self explanatory and to compensatory damages which seem to refer to section 53(2)(e) of the Act. I emphasize that these compensatory damages, if any, would be those of the victim, in this case the Complainant.
[27] With regards to the second question raised by the Respondent to the effect that the only issue before the Tribunal was the policy issue identified by the Canadian Human Rights Commission, it would be important to clear up some confusion regarding the respective roles of the Commission and the Tribunal.
[28] The Commission is not an adjudicative body; that is the role of the Tribunal. When deciding whether a complaint should proceed to be inquired into by the Tribunal, the Commission fulfils a screening analysis. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it.
[29] The main function of the Tribunal is adjudicative. It conducts formal hearings into complaints that have been referred to it by the Commission. It has many of the powers of a court. It is empowered to find facts, to interpret and apply the law to the facts before it, and to award appropriate remedies. Moreover, its hearings have much the same structure as a formal trial before a court. The parties before the Tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts. The Tribunal is not involved in crafting policy, nor does it undertake its own independent investigations of complaints: the investigative and policy-making functions have deliberately been assigned by the legislature to a different body, the Commission.
[30] The Commission refers complaints to the Tribunal. That is exactly what it did in its letter of January 6, 2004. It is clear upon reading the letter from the Commission to the Tribunal’s then Acting Chairperson that all aspects of the complaint were referred to the Tribunal. As my colleague, Member Hadjis, so clearly pointed out in Côté v. Attorney General of Canada, 2003 CHRT 32, one must not lose sight of the fact that although the Commission has the authority to decide whether a complaint is to be referred to the Tribunal (ss. 44(3) and 49 of the Act), the complaint continues to remain the Complainant’s, not the Commission’s.
[31] Once it receives a complaint, the Tribunal, in accordance with section 50(2) of the Act, decide[s] all questions of law or fact necessary to determining the matter. In this case, whatever was the intention of the Commission regarding the complaint or the remedies, once it has referred it to the Tribunal, the Commission becomes but one of the parties in the process.
[32] This brings me to the third issue relating to some inconsistencies in the complaint, which according to the Respondent illustrates that there is no issue before the Tribunal. I am of the opinion that there is an issue to be heard by the Tribunal and this issue is whether the Complainant has been able to establish that he has been discriminated against by reason of the failure of the Respondent to provide facilities that could accommodate his deficiency.
[33] The request by the Respondent that this matter be dismissed on a summary basis is therefore dismissed.
III. The Complainant’s Witness, Marshall Schecter [34] Before dealing with the issues, I feel that it is important that I comment on the behaviour of the Complainant’s witness and son, Marshall Schecter. At the hearing, the Complainant chose to call only two witnesses in addition to himself. These witnesses were his wife, Mrs.IrmaSchecter, and his son, Mr. Marshall Schecter. The latter was the important witness for the Complainant, as he was in his words perhaps the only person who can recite the facts […] which took place on the evening in question. Unfortunately for the Complainant, Mr.MarshallSchecter did not live up to that expectation. By his demeanour, short temper, enmity towards not only the opposing Counsel but also towards the Chairperson, his untimely interventions and numerous disruptions during the hearing, he became a very unreliable witness.
[35] On the first day of the hearing, the Complainant indicated that, being a lawyer, he would represent himself. This did not stop Mr. Marshall Schecter from interfering in the proceedings and acting as if this was his complaint. The Tribunal, although it could have limited his participation decided, in the erroneous belief that this would facilitate the hearing, to allow him to make representations on behalf of his father. Knowing what it knows now, the decision of the Tribunal might today be different.
[36] At the start of the hearing, Marshall Schecter intervened to indicate that documentation provided to the parties by the Tribunal had not been received by him. The Tribunal’s files indicate that the letter in question dated March 18, 2004 was sent, with the accompanying documents, to the Complainant’s address.
[37] Again, on the first day, during the Respondent’s arguments on its preliminary motions, Mr.Marshall Schecter interrupted Counsel and said: Excuse me. Are we going to be listening to this, or are you supposed to be ruling on this. Because he is presenting his case at this point in time. At another time, he accused opposing Counsel of not telling the truth and called him a liar. He also characterised a potential witness of the Respondent as a bigot.
[38] On August 31, 2004, the second day of the hearing, the issue of disclosure of documents came up. The Respondent requested copies of various documents which were referred to in the Complainant’s disclosure. One particular document sought to be produced was a letter signed by Mr. Marshall Schecter addressed to Mr. Charles Unterberg of the Canadian Human Rights Commission. It referred to pertinent information concerning … the complaint at Central Station in Montreal on June 7. It then proceeded to list four letters and gave the number of pages attached to those letters. One of those letters was on the letterhead of the law firm Berkovitz and Strauber, and it was signed by the Complainant. It indicated that there were documents enclosed with it. The Respondent was asking that copies of these attached documents be provided.
[39] Marshall Schecter at first indicated that he was in the process of moving and that a lot of these documents were in storage and he might not be able to find them. The Tribunal indicated that these documents would have to be produced by September 2, 2004 or an explanation why they could not be produced would have to be given. After a short adjournment, Marshall Schecter returned and indicated that these documents could not be produced on September 2, 2004, because his printer had told him that he could not do the copies by that time.
[40] The Tribunal then proceeded to order that on Thursday September 2, 2004, the documents with the necessary copies be produced. The following exchange then ensued:
Mr. M. Schecter : Excuse me. I am sorry to interject. I cannot comply with it. I –
The Chairperson : Well, then at that point –
Mr. M. Schecter : Excuse me. May I finish, please. I called the printer, they –
The Chairperson : There are ---
Mr. M. Schecter : I called Banner Blueprint who I use for my architecture, I know these people. I have been dealing with them for 20 years. It will take at least three days to get them, if I bring them over this evening. I can’t get them done any quicker, and I’m putting myself on Record.
The Chairperson : I am also a lawyer, and I have been asked to do things on very short notice, and it was done. There are more than one copier in the City of Montreal, I’m sure. […] My Order is that those documents be exchanged onThursday morning. If not, I will adjourn at that time.
Mr. M. Schecter : Then I ask for an adjourn—
The Chairperson : This is my Order.
Mr. M. Schecter : Then I ask to – if we could have it postponed until next week, please?
The Chairperson : It won’t be postponed until next week. It will bepostponed until the parties have done full disclosure, and then we will see what dates will be set.
Mr. M. Schecter : Then I suggest we do that right now, please.
The Chairperson : Then this will be adjourned sine die.
Mr. B. Schecter : May I have – may I have a word,…[…] Mr. Chair. I am aware of the difficulties which my son has mentioned to the Tribunal, and I want to tell you one thing, he acts in most cases, as fast as any human being can, and I know that it will be physically impossible to have everything that we are discussing now to be prepared on Thursday. He checked on the telephone, and – it is not an effort to conceal or to delay anything.
The Chairperson : I know that, Mr. Schecter. But, we are talking about one copy at this point of those documents to be produced.
Mr. M. Schecter : One or six is the same.
The Chairperson : Well, six copies will be when the evidence will beintroduced in front of the Tribunal. We are not there yet. We are talking about one copy to be provided to the other party. I will be back here on Thursday morning, and if the parties are not ready at that time to provide those documents, I willadjourn this matter, and wait until all proper – I will not accept – this Tribunal is an important Tribunal, and you know that, Mr. Schecter.
Mr. B. Schecter : Oh, yes. Indeed.
The Chairperson : You understand that this case, will not be turned into something that it is not. It is a judicial proceeding, and we will respect the rules of the Tribunal. At that point, I am suggesting that these documents be exchanged on Thursday morning. There is 48 hours. If it cannot be done, then it will be adjourned.
[…]
Mr. M. Schecter : For all documents. They cannot be done.
The Chairperson : Your son has the list of the documents that we arereferring to. So, I will be back here on Thursday morning, and we will see where the parties are at. So, this concludes the matter for today, unless there areother issues.
[…]
Mr. M. Schecter : […] I just want to mention on the Record that I will not be able to provide all the documentation.
The Chairperson : Well, you will explain to the Tribunal at that time why you are not able to provide those documents on the 2nd. But we will reconvene on the 2nd and we will see where we are at.
[41] The documents were produced and provided to the Respondent on Thursday, September2, 2004, as ordered.
[42] On September 3, 2004, a motion was filed by the Respondent regarding the production of other documents which had been filed with the Bureau d’éthique professionnelle of the City of Longueil Police Service, concerning agents Greffard and Sauvé, and the events of June 7, 2001 at CN Central Station. Mr. Marshall Schecter objected to the production of these documents arguing that the information contained in them was privileged under the Young Offenders Act, S.C., c. Y-1 [Repealed, 2002, c. 1, s. 199.]. These events had been raised in the complaint and in a letter addressed to the Tribunal on August 13, 2004 by Mr. Marshall Schecter.
[43] In the complaint they were referred to as follows:
At this time, my wife and grandson were confronted by Montreal UrbanCommunity (MUC) policemen. One of the policemen grabbed mygrandson, threatened him, shoved his knee violently in my grandson’s back and slapped his face several times…
My son [Marshall Schecter] tried to intervene but another policeman pushed him brutally.
My wife was in shock and in tears and tried to obtain explanation from thepolicemen who became very aggressive; one of the policemen punched her in the chest and another pinched her left arm.
[44] Again in a letter dated August 13, 2004, signed by Mr. Marshall Schecter as [representative] of [his] family’s interest under the heading Compensatory Damages, we read:
For the cruel and brutal beating, and arrest of my son, and assault charge laid against him, a minor, initiated by C.N. and an ex employee of C.N, to create leverage inorder to abandon our case. The assault case against my minor son was later dropped by the Crown.
For the physical and vicious assault against my Mother and myself, and the needless pushing my Father (handicapped) into a paddy wagon by 4 black gloved C.N.Security Guards plus 4 police officers. The psychological pressures which have affected my entire family, the arrogance of C.N., the denigration and lack of respect against my family, and particularly my Father who has a stellar reputation in Law for 65 years. Also, the constant harassment by C.N. until the present day.
The compensatory damages sought is the maximum prescribed by law under the Commission’s sic power, multiplied by four, that is my son, Mother, Father andmyself.
[45] These events having been raised by the Complainant to justify his request for compensatory damages, documents concerning them became arguably relevant and had to be disclosed unless they were privileged. Having heard the parties’ arguments on this matter, the Tribunal proceeded to order that the document filed with the Bureau d’éthique professionnelle of the City of Longueil Police Service concerning agents Greffard and Sauvé, and the events of June 7, 2001 at CN Central Station be disclosed and, in order to address the concerns of the Complainant concerning his grandson, I ordered that any information concerning a minor which might be included in that document be removed. It was further ordered that the Respondent consult the document for the purpose of this hearing only and that it not disclose its content to anyone other than its Legal Counsel.
[46] At this point, Mr. Marshall Schecter became very aggressive and voiced strongly his intention not to comply with this order to a point where his father had to interject and tell him That’s enough. Later on during the day, this whole matter concerning compensatory damages for the Complainant and his family was resolved when the Complainant acknowledged that the only person who could ask for compensatory damages was himself, if his claim was substantiated. The claim for compensatory damages referred to in Mr. Marshall Schecter’s letter of August13,2004 for his mother, his son and himself was dropped by the Complainant.
[47] Later on during that same day, Mr. Marshall Schecter objected to the presence in the room of a gentleman from the Police Department saying that he did not want him in the hearing. The following exchange followed:
The Chairperson : Are you asking for an exclusion of witnesses?
Mr. M. Schecter : I’m asking for his exclusion because we haven’t accepted him as a witness yet -- because this is a situation pertaining to [redacted] again and [redacted] is relevant in there and it is against the Young Offenders Act.
The Chairperson : Mr. Schecter, it’s a public hearing. Unless you ask for an exclusion of witnesses, it’s a public…
Mr. M. Schecter : Well this is Mr. – are you Mr. Desève? Well if he’s Mr. Desève, his name is one of the witnesses.
The Chairperson : Are you asking for an exclusion of witnesses?
Mr. M. Schecter : I’m asking for his exclusion in this courtroom.
The Chairperson : I’m not going to exclude one witness. Are you asking for an exclusion of witnesses?
Mr. M. Schecter : Well, why should he be able to come into this testimony since he wasn’t there, he has nothing to do with the situation but he’s bringing a document in, again, against [redacted]. So what I would suggest we do at this point, if you don’t mind me saying, and I’m not a lawyer but I want to put forth, and let’s discuss the Young Offenders Act. I don’t want to argue but I’m telling you that it’s pertaining because he’s put it in evidence and I’ve seen that document from the Crown. So we’re going back again and I never gave it to CN.
The Chairperson : If they are documents pertaining to [redacted] that they will be trying to produce in evidence, you’ll be able to raise those objections then. This morning when I’m talking about disclosure of documents, it doesn’t mean that they’re in evidence.
Mr. M. Schecter : I’m not going to sit here for days after day and talk about [redacted], okay. […] Well, we came down here to testify. Either we testify or we leave. Please let us know and let’s get on with the case.
[48] The Complainant was then asked to call his first witness, Mr. Marshall Schecter again interjected:
Mr. M. Schecter : Well then, go ahead. They wanted to call my father.
The Chairperson : No, it’s your –it’s your case, Mr. Schecter.
[…]
Mr. B. Schecter : Well, that’s up to me then because I’m the Counsel here and whether or not I will wear two hats later on is another matter but I’m Counsel and we’re ready to – we’re ready to start.
Mr. M. Schecter : One of the reasons we cannot call any witnesses because we were precluded by CN and the Police Department from getting any witnesses.
Mr. B. Schecter : Well, that will come in evidence…
Mr. M. Schecter : Exactly. So right now we have nobody to call.
[49] Notwithstanding his son’s comments, the Complainant then proceeded to present his evidence.
[50] On September 10, 2004 there was another strong intervention by Mr. Marshall Schecter regarding a line of questioning from Respondent Counsel that he found disrespectful towards his father. His father then indicated to his son that if there were any objections to be made that he would make them. He also stated that sometimes his son gets a little overzealous in his protection of him.
[51] On September 23, 2004, during his mother’s testimony, Mr. Marshall Schecter again interrupted the proceedings and proceeded to explain the evidence given by his mother concerning the physical layout of an apartment building in which the Complainant and she had lived. According to Mr. Marshall Schecter, he had the right to object since Counsel for the Respondent was giving erroneous information. The Chair had to explain to Mr.MarshallSchecter that his father was representing himself and that if he so wished, he could in reply ask the witness to correct the information if it was erroneous.
[52] The hearing adjourned on September 23, 2004 and only reconvened on May 9, 2005. On that day, Marshall Schecter was the Complainant’s witness. He was a most recalcitrant witness and, at times, aggressive and antagonistic.
[53] In actual fact, what infuriated the witness was my questioning as to where he was parked on the day of June 7, 2001. The witness did not seem to realise that the adjudicative process in our adversarial system relies on viva voce testimony adduced from witnesses examined before the trier of facts, in this case, the Presiding Member of the Tribunal. In general terms, it is the role of the parties, not the Tribunal, to call and examine witnesses. While the presentation of evidence is left to the parties and Counsel, the trier of facts has the right to question witnesses. In fact, I would add that it is its duty to do so if he or she is of the view that the examination is necessary in order to properly evaluate the witness’ evidence. In his questions, the trier of facts is not limited to queries designed to clear up doubtful points, but can extend the questions to matters not dealt with in Counsel’s examination of the witness. (See Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd edition, at section 16.9.) These were the reasons for the questions I put to the witness. I felt that the examination-in-chief was incomplete and a lot of points which should have been dealt with were still unanswered.
[54] When first asked where he was parked the witness said that he could not accurately indicate the precise location. In order to assist him, I asked him to look at a drawing of the Central Station Complex which had been introduced in evidence. I then asked him again if he could show me where he was parked and he answered: In this vicinity. I can’t say accurately… For my benefit, when I would be reviewing the evidence, I asked him to put his initial next to the area he had pointed to and that is when things got out of hand. He said that he’d rather not do as he was asked because he did not want to be held to it. He further added that If I go down there and measure it, then I’ll be happy to do it. The following exchange then followed:
The Chairperson : Could you just initial right there, your initials--Marshall Schecter--just to indicate at about where you were…
Mr. M. Schecter : I’d rather not.
The Chairperson : Well, I would ask you to do it to indicate…
Mr. M. Schecter : I don’t want to be held to it. I don’t want to be held to it, because I know I was around here...
[55] The witness was forgetting that he was under oath and that he would be held to the evidence he was giving and if this evidence was not clear then it would be difficult for me to make a ruling in the Complainant’s favour on this issue.
[56] The witness then started to be argumentative, raised his voice and again challenged my authority. The exchange continued:
The Chairperson : So, you can’t indicate precisely where you were?
Mr. M. Schecter : If I go down there and measure it, then I’ll be happy to do it.
The Chairperson : Okay, I’ve got no evidence of exactly where you were parked at that point. Okay.
Mr. M. Schecter : I would like to say that I want to have that measured, and then I’ll come back and I will tell you, is that all right? […] Well--well, listen, you’re asking me to put my – I don’t know the scale of the plan…[...] and if we’re going to get into technicalities, I have the right and I want it on record that I want to know what the scale is and I’ll measure it off, and then I’ll sign it. But…
The Chairperson : The scales are not important. The only thing…
Mr. M. Schecter : To me, yes, they are, sir. If we’re talking technicalities, they are.
The Chairperson : Okay, sir, if you -- the evidence I’ve got is put in today, this is what I’m getting, and I’m not getting… [Interrupting me in mid-sentence.]
Mr. M. Schecter : [In a strong voice, almost yelling] Well, no, then, I’m sorry, we -- I’ don’t want to proceed without having the opportunity to take…
The Chairperson : Sir, I decide if we’re going to proceed or not.
Mr. M. Schecter : [Shouting] No, I decide.
The Chairperson : No, you’re the witness!
[57] I then tried to bring back order, but to no avail. To avoid a shouting match with the witness, I decided to adjourn the hearing for five minutes, hoping that this would cool him down.
[58] When the hearing resumed, the Complainant offered his apologies for what had just happened but his wife interjected and said that there’s no apology necessary. The Complainant tried to explain his son’s behaviour but the witness did not let him finish and continued in the same way he had before the break. At one point the Complainant again intervened telling his son in a stern voice: That’s enough now…, but with no success. The witness then proceeded to threaten me by saying that he would make a full report of the events to the Tribunal, the Bar Association, and everything else because that’s unethical and immoral. And that’s it, no more discussion. Again his father intervened telling him Just a moment, there’s going to be cross-examination, just listen to Mr. McMurray, now.
[59] At that point, Mr. McMurray asked for a break to prepare his cross-examination. Since it was 11:28 a.m., I decided to break for lunch. I was hoping that this would provide the witness time to cool down and to reflect, with the guidance of his father, on his demeanour during the hearing. Again the witness challenged this decision saying in a loud tone Excuse me, I have a meeting at three o’clock (3:00) and we have… I called the hearing to order but again the witness interjected aggressively: Let’s go, finished! I won’t be back, don’t waste your time! [The exclamation marks are those of the Court Reporter.]
[60] Unfortunately, in the afternoon the Complainant and his witness did not return to the hearing and the Respondent was deprived of his right to cross-examine the witness. I then proceeded to adjourn the hearing until the next morning.
[61] That same afternoon of May 9, 2005, under my instructions, a letter signed by GregoryM.Smith, the Registrar of the Tribunal, was personally served on the Complainant. An Affidavit of Service sworn to by Michel Fiset, a sworn Bailiff of Justice of the Province of Quebec was filed before the Tribunal. In this affidavit, Mr. Fiset stated that he had personally served the Complainant with a copy of the letter on May 9, 2005 at 7:26 p.m. at his domicile. The letter in question informed the Complainant that the Tribunal had adjourned the hearing until 9:30a.m. on Tuesday, May 10, 2005 and that, should the Complainant not be present at that time, the Tribunal would proceed with the hearing of the complaint in his absence. The letter also informed the Complainant that the Tribunal would not tolerate any further outbursts from the Complainant’s witness, Mr. Marshall Schecter. I am satisfied on the basis of this evidence that the Complainant did receive adequate notice that the proceedings would resume on May 10, 2005 and that he chose not to attend.
[62] On May 10, 2005 and for the following days of the hearing, the Registry Officer started the hearing by asking if Benjamin Schecter, the Complainant, or anybody representing him, was present in the hearing room. The record of the hearing reflects that no response was received to these enquiries.
[63] The Complainant was given a full and ample opportunity to appear at the hearing, present evidence and make repres