An Adverse Witness Can be Summoned as A Witness by the Other Side in HRTO Proceedings

By Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor & Notary Public

In a significant ruling released on June 15, 2011, J.B. v. Toronto District School Board, 2011 HRTO 1162, the Human Rights Tribunal ruled that a party can summon as witness a Trustee or Director for the other side even if the witness has evidence that is adverse to the interest of the Respondent's Corporation:

[14] The respondent relies primarily on a decision of the Ontario Superior Court in Hearst (Town) v. District School Board Ontario North East, September 11, 2000, [2000] O.J. No. 3419. The respondent states that this case stands for the proposition above, that a trustee, being a member of a corporation, cannot be compelled to give evidence in a manner adverse in interest to the respondents. The respondents state that the witness made it clear from the outset that she was an advocate for the applicants. The respondents also rely upon the fact that the witness filed an internal human rights complaint based on the same facts and retained counsel in that matter who is now counsel for the applicants in these proceedings.

[15] In my view the respondent has over-read the rationale underlying the court’s conclusion in Hearst to some degree. In my view the underlying concern of the Court is that in reality what it was faced with was a trustee taking legal action against the corporation over a decision the corporation had taken. She in effect had become an adversary party in litigation against the corporation of which she was a member. In my view the decision does not stand for the proposition that a trustee can not be compelled by summons to give evidence in support of a party adverse in interest to the corporation of which they are a member. The question remains whether, as the respondent suggests, a member of a corporation can or can not give evidence under a summons “in a manner adverse in interest” to the interests of the corporation.

[22] It is clear from the passage above that the underlying concern with the deponent of the supporting affidavit for the judicial review being a trustee was the appearanceand/or reality of that trustee having a place at both counsel tables and not her potentially giving evidence that would be adverse in interest to the respondent and supportive of the applicants. My conclusion in this regard is strengthened by the court’s accepting without comment that two other witnesses had been summonsed although their personal views on the redistribution issue were not known. More significantly is the manner in which the court discussed how the conflict identified above should be resolved:

What is the best way to resolve this conflict? Is Ms. Brunet absolutely necessary to the applicant? It was not argued that she was. The two grounds given for review were that the Final Report was not based on the factors enunciated in the Regulation and secondly that the Board made its decision on the basis of improper motive. The first ground can be argued on the record. With respect to the second ground, Ms. Brunet's dispute with this Board is longstanding and well documented. At least four newspaper articles were included in this record, showing her criticism of the Board. The questions to be put to the two trustees summoned as witnesses was with respect to retaliatory measures allegedly taken by the Board against Ms. Brunet including redistribution of her electoral area. Counsel for the applicant conceded that Ms. Brunet could be summoned as a witness in these proceedings. [emphasis added]

[23] It seems to me that this passage is a complete answer to the respondent’s position. Hearst does not stand for the proposition that a trustee may not give evidence which is adverse to the position taken by the board of which she or he is a member even where they have a clear personal interest in the outcome. What such a person ought not do, according to Hearst and others of the decisions relied upon by the respondent, is to be a litigant opposed to the board of which they are a member, or participate actively in the case of the party opposed in interest, such as providing the supporting affidavit in an application for judicial review. Such conduct is in violation of the ethical obligation of counsel not to make contact with an adverse party except through their counsel. However even where as in Hearst it was plain that Brunet had been an active participant in the litigation prior to the service of the application, this was not an impediment to the trustee later giving evidence under summons by the applicants.

The witness has been summonsed to give evidence by a party adverse in interest to the respondent Board and is expected to give evidence adverse to the Board’s immediate interests in this proceeding. As previously indicated, the Hearst decision stands for the proposition that this is perfectly acceptable....

The evidence of the witness summoned, however, has to be relevant and material to the matters in dispute to be admissible. This was reiterated in a recent decision D.R. v. Toronto District School Board, 2011 HRTO 1079 in which the Tribunal  on the question of "whether the applicant should be allowed to summons a witness, a former respondent, S. P.?" said no,  "it would not be appropriate to entertain further evidence in this case".

The premise for summoning witnesses for the other side is in most cases of discrimination, it is circumstantial evidence that are relied upon. Most of the evidence is within the knowledge, possession or control of Respondents. Strategically, therefore, it is prudent to determine very early whether or not that person has evidence that is helpful to the ultimate determination of the case.