An Application to quash an interim Order made by the Respondent Human Rights Tribunal requiring the Applicants to call as witnesses persons whom the Applicants did not wish to call and to produce “will-say” statements from those persons was allowed. The Tribunal’s Order was a clear breach of the principles of natural justice and procedural fairness to the Applicants and, potentially, to the witnesses and was therefore set aside. Natural justice and procedural fairness required that the parties be free to conduct their own cases.

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Hearings – Compellability of witness – Judicial review – Witnesses – Natural justice – Procedural requirements and fairness – Evidence

Universal Workers Union, Labourers’ International Union of North America Local 183 v. Ontario (Human Rights Commission), [2006] O.J. No. 50, Ontario Superior Court of Justice Divisional Court, January 9, 2006, G.D. Lane J.

The Applicants sought to quash an interim Order made by the Respondent Human Rights Tribunal requiring the present Applicants, who were Respondents before the Tribunal, to call as witnesses some ten persons whom the Applicants did not wish to call and to produce “will-say” statements from those same ten persons.

The Hearing before the Tribunal arose from a complaint made to the Commission by Mr. T that he had been discriminated against by the Union and by certain union officers at a Union meeting. The Commissioner investigated and took the view that there was some evidence that Mr. T’s rights under the Human Rights Code had been violated. The Commission referred the complaint to the Tribunal for a Hearing which had commenced and was in recess pending the outcome of the subject Application.

Partway into the Hearing, the Tribunal permitted the complaints to be amended to plead seven occasions of reprisal in addition to the original grounds. As a condition of granting the amendments, the Tribunal directed that the Commission summon certain witnesses mentioned by Mr. T in his evidence. The Tribunal then resumed Hearings at which time the Commission asked for a ruling that the Union was obliged to call certain of the witnesses. Over the objections of the Union, the Tribunal required the Union to present the evidence, including “will-say” statements, for ten witnesses, some of whom the Union would not have chosen to present as its witnesses.

The Court acknowledged the scheme of the Ontario Human Rights Code in that the Commission had an inquisitorial function and the Tribunal an adjudicative function.

The Court noted that a Hearing was an inherently adversarial proceeding in which important rights were at stake for the Union as well as for Mr. T. The Tribunal, however, failed to recognize that its Order was inherently inappropriate in such an adversarial setting. The authorities demonstrated that the Order made by the Tribunal was a clear breach of natural justice and procedural fairness to the Applicants and, potentially, to the witnesses and must be set aside. Natural justice and procedural fairness required that the parties be free to conduct their own cases.

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