Claimant's Request for Grievance Documents Rejected by Canadian Human Rights Tribunal

Canadian Human Rights Tribunal Tribunal canadien des droits de la personne Citation: 2026 [NAME] 10 Date: January 29, 2026 File Nos. : HR-DP-3073-24, HR-DP-3074-24 & HR-DP-3075-24 Between: [NAME] Complainant - and - Canadian Human Rights Commission Commission - and - [NAME] Service Canada Respondent Ruling Member: [NAME] \o "1-3" \h \z \u I. Overview PAGEREF _Toc220575402 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320030003500370035003400300032000000 II. Decision PAGEREF _Toc220575403 \h 2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320030003500370035003400300033000000 III. Issues PAGEREF _Toc220575404 \h 3 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320030003500370035003400300034000000 IV. Analysis PAGEREF _Toc220575405 \h 3 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320030003500370035003400300035000000 A. Should I grant [NAME]’s request for the production of grievance documents naming [NAME]? PAGEREF _Toc220575406 \h 3 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320030003500370035003400300036000000 B. Objections to the parties’ intended witnesses PAGEREF _Toc220575407 \h 5 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320030003500370035003400300037000000 (i) The Respondent’s objections to [NAME]’s intended witnesses PAGEREF _Toc220575408 \h 5 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320030003500370035003400300038000000 (ii) The Respondent’s objections to the Commission’s intended witnesses PAGEREF _Toc220575409 \h 12 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320030003500370035003400300039000000 (iii) Objections to Respondent’s intended witness, [NAME] _Toc220575410 \h 15 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320030003500370035003400310030000000 V. Third-party reports cited by the Commission in its SOP PAGEREF _Toc220575411 \h 15 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320030003500370035003400310031000000 VI. ORDERS AND DIRECTIONS PAGEREF _Toc220575412 \h 17 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320030003500370035003400310032000000 I. Overview [ 1 ] [NAME], the Complainant, alleges that the Respondent, [COMPANY], discriminated against him based on his race, colour, national or ethnic origin, and sex, contrary to section 5 of the Canadian Human Rights Act , R.S.C., 1985, c. H-6 (the CHRA). [NAME] identifies as a Black man. Three of his complaints that have been referred to the Tribunal by the Commission are being addressed together in this proceeding. [ 2 ] Broadly speaking, [NAME] raised the following incidents of alleged discrimination in his complaints:

1) That a [NAME] officer discriminated against him when she made a racially charged remark to a group of Black inmates which included [NAME] in July 2020 and then acted scared of him and called security when he went to speak to her about it;

2) That his race was a factor when the Respondent denied him a job in the kitchen in 2019;

3) That he was discriminated against when he and others were deprived of the opportunity to celebrate Black History Month at [NAME] in 2020;

4) That the Respondent discriminated against him when it denied grievances he filed while he was at [NAME] (specifically, those identified in [NAME]’s August 21, 2025 response to paragraph75(2) of my scope ruling);

5) That the Respondent discriminated against him in November 2020 when, after being attacked by a [NAME], he was sent to a maximum-security prison while his assailant remained in a medium security institution;

6) That he was discriminated against or stereotyped based on his identity as a Black man in various reports written by his [NAME] officer; and 7) That two [NAME] officers discriminated against him in a meeting in March 2021 in which [NAME] had asked them to make corrections to reports that they had written about him. [NAME] v. [NAME] Service Canada , 2025 [NAME] 77 at para 8 [“scope ruling”]. [ 3 ] [NAME] stated in his complaint that racism runs rampant and is “systemic” in the [NAME], he did not make allegations about any specific instances of discrimination victimizing other individuals in the [NAME]. He also did not include specific allegations in his complaint about any conditions that may exist, or incidents that have taken place across the [NAME] generally. [ 4 ] I heard submissions from the parties related to several issues in case management conference calls ([NAME]) on October 24 and November 4, 2025, and received follow-up written submissions from them regarding those issues. This ruling addresses the following issues upon which I reserved judgment during the [NAME]: (1) [NAME]’s request for the production of grievance documents relating to [NAME]; (2) objections to some of the parties’ intended witnesses; and (3) whether the issue of the admissibility of various third-party reports referred to by the Commission in its Statement of Particulars (SOP) should be determined in advance of the hearing.

II. Decision [ 5 ] For the reasons set out below:

1) I deny [NAME]’s request for certain grievance documents naming [NAME] ;

2) I deny the Respondent’s request that I require [NAME]’s counsellor to comply with the requirements that apply to expert witnesses;

3) I sustain the Respondent’s objection to [NAME]’s proposal to call [NAME] as a witness;

4) I sustain the Respondent’s objection to the Commission’s proposed witnesses;

5) I deny [NAME]’s objection to one of the Respondent’s proposed witnesses at this time. However, I will seek further clarity from the Respondent on the relevance of her intended testimony, if any; and 6) I allow the Respondent’s request that I determine the admissibility of certain reports relied upon by the Commission in its SOP in advance of the hearing.

III. Issues [ 6 ] In this ruling, I address the following issues:

1) Should I grant [NAME]’s request for the production of grievance documents relating to [NAME]? 2 Should I allow the Respondent’s objections regarding two of [NAME]’s proposed witnesses? 3) Should I allow the Respondent’s objection to the Commission’s intended witnesses? 4) Should I allow [NAME]’s objection to one of the Respondent’s witnesses? 5) Should I rule upon the admissibility of various third-party reports relied upon by the Commission in its SOP in advance of the hearing? IV. Analysis A. Should I grant [NAME]’s request for the production of grievance documents naming [NAME]? [ 7 ] No. I do not find that it is appropriate to order the production of any grievance documents regarding [NAME] that name [NAME]. [ 8 ] [NAME] requested production of various documents from the Respondent. The only request that remained outstanding after the October 24 and November 4, 2025, [NAME] was his request for all grievance documents relating to him that name [NAME]. In the October 24, 2025, CMCC, [NAME] said there was an email exchange from 2021 between [NAME] and [NAME] that he says is relevant to the issues I must decide in this case. I provided the parties with the opportunity to make further submissions on the issues in writing following the CMCC. By letter dated October 31, 2025, [NAME] argued that any materials and records naming [NAME] and [NAME] were relevant to the issues in this case as they establish a continuous and escalating pattern of anti-Black racism, harassment, and reprisal that started before his complaint and continued after the complaint. [NAME] argued that the email exchange demonstrates reprisal and collusion to influence decisions about his placement and treatment. On November 5, 2025, [NAME] filed with the Tribunal a copy of an August 2021 email exchange about him by [NAME] and Ms. [NAME] that he obtained through an access to information request as well as an October 2024 response to a grievance he filed against [NAME] in June 2024. The grievance and the response relate to various interactions that [NAME] had with [NAME] at [NAME] in 2021. [ 9 ] The Respondent argues that [NAME] is seeking to advance new allegations based on the exchange between [NAME] and [NAME] which occurred in August 2021. It argues that any grievances relating to [NAME] are not relevant for the issues I must decide in this case. The Commission did not make any submissions in response to [NAME]’s request. [ 10 ] I agree with the Respondent that any grievance documents naming [NAME] have little probative value to the issues I must decide in this case. [NAME] has other complaints pending before the Commission. It is unknown to me whether any of those complaints raise allegations against [NAME]. The key for my present purposes is that the three complaints before me do not raise any allegations against [NAME]. There was also no mention of [NAME] in the Commission’s referral of [NAME]’s grievances to the Tribunal. The grievance that [NAME] submitted against [NAME] in June 2024 does not mention any incidents that are raised in this proceeding. Meanwhile, the allegation that [NAME] made regarding [NAME] related to a meeting in March 2021 and there is no allegation against her regarding the August 2021 emails. Any grievances naming [NAME] or any exchanges between [NAME] and [NAME] in August 2021 post-date all of the allegations in this case and they have little probative value to the allegations I must address. Moreover, the Complainant’s counsel confirmed that they will not be seeking to call [NAME] as a witness, which is a further indication that the allegations in this case have no connection to [NAME]. [ 11 ] I find that any grievance documents naming [NAME] lack any probative value for the issues I must decide in this case. Any probative value they may have is outweighed by the prejudice that would be caused to this proceeding by allowing it to be sidetracked by allegations against [NAME] that do not form part of this case. [ 12 ] For the above reasons, I decline to order the Respondent to produce any grievance documents naming [NAME]. B. Objections to the parties’ intended witnesses (i) The Respondent’s objections to [NAME]’s intended witnesses [ 13 ] [NAME] filed a witness list that contained 23 witnesses. The Respondent objected to several of [NAME]’s witnesses. I provided to the parties the opportunity to discuss the Respondent’s objections and to explore whether it would be possible for them to agree to certain facts or the admission of particular documents to reduce the need to call some of the witnesses. The parties have been able to resolve most of the Respondent’s objections. In this ruling, I only address the two objections that remain unresolved. (a) No need to satisfy Rule 22 to call [NAME] [ 14 ] [NAME] is a counsellor who counselled [NAME] during the time period relevant to this complaint. [NAME] wants to call her to testify to: · His mental health state during the relevant incidents; · Long-term trauma from racism, assaults, and grievance failures; and · Her clinical insight into how the Respondent’s actions affected his functioning. [ 15 ] The Respondent argued that , to call [NAME] as a witness, [NAME] needs to satisfy the requirements for calling an expert witness set out in Rule 22 of the Canadian Human Rights Tribunal Rules of Procedure, 2021 (SOR/2021-137) (the “Rules of Procedure”). [NAME] argued that [NAME] does not meet the definition of an expert witness. They argued that [NAME] has special training, knowledge, and expertise; that she was not engaged by or on behalf of her party; and that her opinions are based on observations she made in the course of her interactions with [NAME]. [ 16 ] Rule 22 sets out the requirement to file a report for each “expert witness” whom a party intends to call. The Tribunal has a general power to vary or dispense with compliance with any Rule, including Rule 22, if doing so achieves the informal, expeditious, and fair determination of an inquiry on its merits (see Rules 5 and 8 of the Rules of Procedure). In addition, the Tribunal has the power to accept any non-privileged evidence even if that evidence would not be admissible in a court of law (see section 50(3)(c) of the CHRA). [ 17 ] The Rules of Procedure do not define the term “expert witness.” However, at a minimum, expert witnesses are witnesses who are called to provide expert opinion evidence. The classic role of an expert is to provide a decision-maker with a ready-made inference based on scientific, medical, psychiatric, engineering, or similar learning, on which the decision-maker can draw if certain identified underlying facts are demonstrated to exist (see [NAME] v. Peel Regional Police Services , 2003 CanLII 42339 (ON SC) at para 23; and [NAME] et al. v. RCMP , 2023 [NAME] 9 at para 53). The Tribunal generally requires a party to comply with Rule 22 when they are seeking to call independent experts whom the party retained to provide opinion evidence about issues in the litigation, but who were not otherwise involved in the underlying events. This category of experts has been referred to by courts either as “litigation experts” (see [NAME] v. [NAME] , 2015 ONCA 206 at para 6 [ [NAME] ]) or “independent experts” (see [COMPANY]. v. [COMPANY] ., 2015 ABCA 249 at para 36 [ [NAME] ]). [ 18 ] It is less clear whether Rule 22 applies more broadly to all witnesses with special expertise who are called to provide evidence that includes both fact-based evidence and opinion evidence. This broader group includes treating health professionals, such as family doctors, or counsellors such as [NAME], who form opinions based on their participation in the underlying events. Some courts have referred to such experts as “participant experts” (see [NAME] at para 6). [ 19 ] In [NAME] , the [ADDRESS] of Appeal held that the equivalent to Rule 22 in the [NAME] , R.R.O. 1990, Reg. 194 does not apply to witnesses giving opinion evidence who have special skill, knowledge, training, or experience, and who have not been engaged by or on behalf of a party where: · The opinion is based on the witness’ observation of or participation in the events at issue; and · The witness formed the opinion to be given as part of the ordinary exercise of their skill, knowledge, training, and experience while observing or participating in such events (see [NAME] at para 60). [ 20 ] Not all courts are in complete agreement with this approach. For example, the [ADDRESS] of Appeal commented in obiter in one of its decisions that, where witnesses with expertise are called to testify about events within the scope of their expertise, “it is generally prudent” to have them formally qualified as expert witnesses. [ADDRESS] stated that this was particularly the case when the witness is being called to express an opinion on collateral issues like the employment prospects of a [NAME] (see [NAME] at para 37). [ 21 ] The Respondent has not provided me with any decision of this Tribunal or any other administrative tribunal that has required parties to comply with requirements relating to expert witnesses when calling health professionals to testify regarding their treatment of one of the parties in a case. [ 22 ] [ADDRESS] of Appeal’s decision in [NAME] involved an interpretation of the relevant provisions of the [NAME] and it is not binding on this Tribunal. However, in my view, the principles and distinctions made by the [ADDRESS] of Appeal in that case are useful for determining the circumstances in which the Tribunal should exercise its discretion to dispense with compliance with Rule 22. This is the case even if, as pointed out by the Respondent, the wording of the relevant provisions of the [NAME] differs from the wording of Rule 22. Specifically, the provision of the [NAME] that sets out the duty of expert witnesses refers to “expert engaged by or on behalf of a party” (see Rule 4.1.01 of the [NAME] ) and such language does not appear in Rule 22. [ 23 ] In my view, it is not necessary to determine whether [NAME] is an “expert witness” within the meaning of Rule 22. Even if she did fall within the meaning of that term, I would find that it is appropriate to dispense with compliance with Rule 22, as she will only be providing testimony regarding any facts she observed or opinions she formed in the ordinary exercise of her skill, knowledge, training, or experience while treating [NAME]. [ 24 ] In my view, dispensing with compliance with Rule 22 is appropriate in this case as it furthers the Tribunal’s mandate of achieving the informal, expeditious, and fair determination of the inquiry on its merits. Dispensing with the obligation to draft and file an expert report removes an onerous and technical procedural step and saves time. Moreover, fairness is not impaired, as a proper witness statement is still required regarding her proposed testimony, as I will discuss further below. [ 25 ] In its submissions, the Respondent argued that creating an exception to Rule 22 for participant experts, as defined in [NAME] , would not further the informal and expeditious determination of inquiries. It argued that such an exception would only lead to disputes between parties over the application of the exception. However, in this case, I am not finding that there exists any formal “exception” to Rule 22 for treating professionals such as counsellors. Instead, I am applying the discretionary power provided to me to dispense with compliance with Rule 22 as it is appropriate to do so in this case. [ 26 ] In my view, requiring expert reports every time a treating health professional testifies about their treatment of a [NAME] would unnecessarily burden and delay the Tribunal’s proceedings. That said, in some circumstances, it may well be prudent for the Tribunal to have a treating health professional formally qualified as an expert witness. This may especially be the case, as suggested by the [ADDRESS] of Appeal in [NAME] , when the health professional is being called to express an opinion on collateral issues. However, that is not the case here as [NAME] has confirmed that [NAME] will be testifying only to any opinions formed based on her knowledge, training, and expertise as applied to observations made in the course of her role as [NAME]’s counsellor. I agree with the judgment in [NAME] that there are important differences between litigation experts and participant experts, such as [NAME] , and that these differences can justify the imposition of fewer procedural formalities in the case of the latter. [ 27 ] In light of the above, I permit [NAME] to provide testimony on the following issues without complying with Rule 22: · any facts she observed or opinions she formed about [NAME]’s mental health in the ordinary exercise of her skill, knowledge, training, or experience while counselling [NAME]; and · her opinion on how the Respondent’s actions that fall within the scope of this case affected [NAME]’s functioning. [ 28 ] [NAME]’ witness statement indicates that she is expected to testify about “Long-term trauma from racism, assaults, [and] grievance failures.” In my view, this formulation is overly broad. [NAME] is permitted to testify to any facts she observed or opinions she formed about any long-term trauma that [NAME] has experienced from the instances of discrimination alleged in this case. Any opinions expressed by [NAME] must arise from the ordinary exercise of her skill, knowledge, training, or experience in observing or counselling [NAME]. [ 29 ] If [NAME] were proposing to call [NAME] to testify about long-term trauma from racism, assaults, or grievance failures beyond what she observed in her counselling of him, he would need to comply with Rule 22. However, that is not the case here as [NAME] has confirmed that [NAME] will be testifying only to any opinions formed based on her knowledge, training, and expertise as applied to observations conducted in the course of her role as [NAME]’s counsellor. [ 30 ] For all of these reasons, [NAME] is not required to comply with the requirements in Rule 22 of the Rules of Procedure to call [NAME] as a witness. However, [NAME]’ testimony must not extend beyond the limits set out in paragraphs 27 and 28 above. I also find it appropriate to require [NAME] to file an amended witness statement for [NAME] which summarizes the substance of her expected testimony in greater detail. [NAME]’ witness statement must provide more detail about: · [NAME]’s mental health during the relevant time period; · the effect on him of the alleged instances of discrimination raised in this case; and · any long-term trauma he has experienced as a result of them. [ 31 ] In addition to having the benefit of this more detailed witness statement, all parties will have the opportunity to make any arguments they wish regarding the weight I should give to [NAME]’ evidence, as they do regarding the evidence of all other witnesses. [ 32 ] The Respondent stated that, if I permit [NAME] to testify without submitting an expert report, it should receive production of all documents related to her evidence, including copies of [NAME]’s clinical records. The Respondent argued that the production of such records is necessary to avoid surprise, and to allow it to effectively test [NAME]’ evidence. [NAME] has not responded to this request. [ 33 ] Parties have an obligation to disclose all documents within their possession that relate to the facts, issues, or remedies sought in the inquiry (see Rules 18(1)(f), 19(1)(e), and 20(1)(e) of the Rules of Procedure). A complainant has the right to privacy and confidentiality regarding their medical records. However, these rights may cease if a complainant puts their health in issue in a proceeding (see [NAME] v. [NAME] , 2019 [NAME] 3 at para 52). [NAME] has put his health in issue by arguing that the Respondent’s actions negatively affected his mental health, and by seeking financial compensation for such effects. [ 34 ] In my view, any materials related to [NAME]’ evidence must be produced, including copies of any clinical or other records or notes relating to any health effects experienced by [NAME] because of the allegedly discriminatory practices listed in paragraph 2 above. If [NAME] is in possession of the above materials, he must produce them. If only [NAME] is in possession of them, [NAME] must request copies of them from her and provide them to the Tribunal and the other parties. If [NAME] were to refuse to disclose the materials, a party would need to request a subpoena duces tecum for her to disclose the materials to the Tribunal prior to the hearing (see [NAME] v. [NAME] Union, Local 500 et al ., 2013 [NAME] 1 at paras 8 – 15). [ 35 ] I remind the parties that any clinical or other records or notes produced are subject to the implied undertaking of confidentiality that applies to the other materials disclosed in legal proceedings. Pursuant to this undertaking, parties must only use the materials for the purposes of this proceeding and for no other purpose. Therefore, the parties are not permitted to disclose the materials to anyone who is not directly involved in this proceeding (see [NAME] v. [NAME] Service Canada, 2025 [NAME] 107). It is also open to [NAME] to seek any confidentiality orders that they consider necessary to prevent any portions of the materials from being made public where the need for confidentiality outweighs the interest in public access (see section 52 of the CHRA; the Canadian Human Rights Tribunal access to official records policy). (b) [NAME] [ 36 ] The Respondent objected to [NAME] calling [NAME] as a witness. [NAME] is an investigator for the [NAME] of Canada. The Respondent argued that [NAME] is not compellable as a witness pursuant to section 189 of the Corrections and Conditional Release Act , S.C. 1992, c. 20 (the CCRA). [NAME] indicated that they would not seek to call [NAME] as a witness if the Respondent produced a copy of any investigative report that [NAME] prepared related to any complaint made by [NAME]. [ 37 ] Section 189 of the CCRA provides as follows: The [NAME] or any person acting on behalf or under the direction of the [NAME] is not a competent or compellable witness in respect of any matter coming to the knowledge of the [NAME] or that person in the course of the exercise or performance or purported exercise or performance of any function, power or duty of the [NAME] , in any proceedings other than a prosecution for an offence under this Part or a prosecution for an offence under section 131 (perjury) of the Criminal Code in respect of a statement made under this Part. [ 38 ] This provision makes [NAME] non-compellable as a witness to testify regarding any matter coming to the knowledge of the [NAME] or his own knowledge in the course of the exercise or performance or purported exercise or performance of any function, power, or duty of the [NAME] (see Kelly v. R ., 1994 CanLII 19044). [ 39 ] I encourage the parties to resolve the question of whether there exist any investigative reports that [NAME] prepared related to any complaint made by [NAME] and whether any such report should be produced. If the parties cannot resolve the matter on their own, they may request my involvement to rule on the matter. (ii) The Respondent’s objections to the Commission’s intended witnesses (a) The parties’ arguments [ 40 ] The Respondent objected to the Commission’s proposed witnesses on the basis that their evidence is not relevant to the specific allegations that I must address in this case. [ 41 ] Prior to my October 24, 2025, CMCC with the parties, the Commission advised the Tribunal and the other parties that it would be seeking to call as witnesses three individuals who filed their own complaints with it alleging racial discrimination by the Respondent. The Commission referred all three complaints to the Tribunal for inquiry. Two of the complaints remain pending before other Members of the Tribunal and one of the complaints has been settled by the parties. The Commission asked to consolidate [NAME]’s complaint along with those of the three proposed witnesses. That request was denied by the Tribunal Chairperson with reasons to follow. [ 42 ] The Commission provided the same general summary of intended evidence for each of the proposed witnesses. Specifically, it stated that each proposed witness was expected to testify about: · his experiences of anti-Black racism, racial profiling, stereotyping, differential treatment based on prohibited grounds, systemic discrimination, and barriers within the Respondent; · discriminatory institutional policies or practices that caused an adverse impact on him and individuals with similar protected characteristics; · the Respondent’s lack of accountability, including inadequate responses to grievances raising human rights concerns, and the minimization of his experiences; and · the cumulative effect of the discriminatory treatment on his mental health and well-being. [ 43 ] The Commission argued that the three proposed witnesses were similarly situated to [NAME] in that they are all Black men who are or were incarcerated and experienced anti-Black racism from the Respondent. It argued that calling these witnesses is necessary for the Commission to fulfill its statutory mandate to represent the public interest, for it to have a full and ample opportunity to present evidence, and to enable the Tribunal to make a fully informed decision. The Commission argued that it is necessary to call these witnesses for the Tribunal to get the full picture of racism within the [NAME]. [NAME] agreed with the Commission. He argued that racism is rampant in the corrections system and therefore the proposed testimony of the witnesses was relevant to the systemic issues raised in his case. (b) Ruling [ 44 ] The Respondent’s objection to the Commission’s proposed witnesses is sustained. [ 45 ] To begin, the evidence that would be provided by the Commission’s proposed witnesses would take the form of allegations regarding their experiences of anti-Black racism by the Respondent. None of these allegations has yet been proven before this Tribunal, or any other tribunal or court, as the proposed witnesses’ cases either remain pending before the Tribunal or they have been the subject of a settlement. If these proposed witnesses were to testify in this case, I would need to provide the Respondent with the opportunity to call its own witnesses to provide its side of the story regarding the allegations made by the three witnesses. [ 46 ] There are several obvious problems with this situation. First, it would take me far outside the scope of the case before me, as I would need to assess and make findings regarding the allegations being made by these proposed witnesses. Second, it would lead to a significant duplication and waste of resources, as I would be hearing evidence that would also be presented in each witness’ own case before the Tribunal. Finally, it would create the risk of inconsistent results if the Tribunal Members hearing the complaints filed by the proposed witnesses and I were to reach different conclusions as to their credibility or the facts that have been established by the evidence relevant to their cases. [ 47 ] The above problems associated with the Commission’s proposed witnesses, on their own, are sufficient to sustain the Respondent’s objection to them. [ 48 ] However, even if the proposed testimony of these proposed witnesses consisted of proven facts, rather than unproven allegations, I would nonetheless exclude them. In my view the testimony of the three proposed witnesses carries minimal probative value in my determination of whether [NAME] has established the discriminatory practices he has alleged in this case. [ 49 ] The issues in this case are the issues I listed at paragraph 8 of the scope ruling which I have reproduced in paragraph 2 above. All of the incidents that [NAME] challenged as being discriminatory occurred at [NAME] and involved Respondent staff at that institution. As noted above, despite saying the racism was rampant in the [NAME] did not make allegations about any specific instances of discrimination victimizing other individuals in the [NAME]. He also did not include specific allegations in his complaint about any conditions that may exist, or incidents that have taken place across the [NAME] generally. [ 50 ] I am acutely aware that racial discrimination can be subtle and that adjudicating such allegations may require a consideration of the broader context. However, I do not find that the expected evidence of the Commission’s proposed witnesses is probative of the questions before me in this case, which relate to [NAME]’s allegations against the Respondent. As [NAME] has already pointed out many times in this proceeding, there is generally no dispute that the various incidents raised in his complaints occurred, although the parties have different accounts of the specifics and context surrounding the incidents. The key issue in this case will be whether the evidence establishes that it is more likely than not that [NAME]’s race was a factor in the various incidents. Even if it were proven, which it has not been, that the Commission’s proposed witnesses were subject to racial discrimination from the Respondent, such incidents involved distinct types of differential treatment and stereotyping, different individuals, and occurred at different times, in different institutions, and under distinct circumstances. Therefore, I do not agree with the Commission that these individuals are sufficiently similarly situated for their evidence to be probative of whether [NAME]’s race was a factor in the various incidents he has raised in his complaints that are before me. [ 51 ] For the above reasons, the Respondent’s objection to the Commission’s proposed witnesses is sustained. The Commission is not permitted to call its three proposed witnesses in this case. (iii) Objections to Respondent’s intended witness, [NAME] [ 52 ] [NAME] objected to one of the Respondent’s intended witnesses, [NAME], on the basis that her proposed testimony was irrelevant as she was on a leave of absence during the relevant time period. [ 53 ] [NAME] was a psychologist at [NAME] in 2019 and 2020. According to her witness statement, she is expected to testify to: Inmates’ access to counseling and psychological services at Matsqui in 2019 and 2020, including [NAME], and how [NAME] was generally provided as much access as other inmates. The restrictions that were placed on access by all inmates to psychological services at Matsqui due to COVID. [NAME] and other inmates could also access counseling services outside of [NAME] if they applied and obtained the necessary funding. [ 54 ] I, myself, had questioned the relevance of [NAME]’ testimony in my November 4, 2025, CMCC with the parties as [NAME] has made no allegation in this case about discriminatory access to counseling and psychological services. The Respondent’s counsel replied by indicating that [NAME]’ testimony was relevant to the remedies sought by [NAME]. [ 55 ] I decline to strike [NAME] from the Respondent’s witness list for the moment. However, I will seek additional details from the Respondent’s counsel in a future CMCC to ensure that any evidence [NAME] is intended to provide is actually relevant to the remedies sought by [NAME].

V. Third-party reports cited by the Commission in its SOP [ 56 ] The Respondent has asked that I rule, in advance of the hearing, on the admissibility of certain reports upon which the Commission intends to rely at the hearing. [ 57 ] In its SOP, the Commission referred to reports on anti-Black racism issued by the [NAME], the Auditor General of Canada, and the steering group for Canada’s Black Justice Strategy. I refer to these reports collectively in this ruling as “the Third-Party Reports.” In the scope ruling, I denied the Respondent’s request to strike all references to the Third-Party Reports in the Commission’s SOP. However, I found that the Commission could not use the Third-Party Reports as a vehicle to add any specific allegations of systemic discrimination across the [NAME] generally. [ 58 ] In the scope ruling, I indicated that the Reports (or portions of them) may be admissible as social context evidence. I then stated as follows: [28] Social context evidence is often defined as “social science research that is used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a particular case”: R. v. [NAME] , 2005 SCC 71 at para 57. See also [NAME] et al. v. RCMP , 2023 [NAME] 9 at paras 25–27. Whether the category of social context evidence may extend beyond social science research to reports like the Third-Party Reports is an issue best addressed at the hearing. [29] Admissible social context evidence may assist decision-makers in determining whether to draw inferences in particular cases (see for example [NAME] v. [NAME] Service Canada , 2024 [NAME] 89 at para 181 [ [NAME] ]; [NAME] v. Peel Regional Police , 2006 CanLII 37566 (ON CA) at para 96 [ [NAME] ]). However, there are also limits on the use of social context evidence (see [NAME] at para 190; [NAME] at para 27; [NAME] at para 96). [ 59 ] I stated in the scope ruling that I would hear the parties’ full submissions at the hearing on whether the Third-Party Reports — or portions of them — are admissible as social context evidence and, if so, the weight that should be given to them and the purpose for which any admitted portions may be used. [ 60 ] Having given additional thought to the matter of the timing of submissions on the admissibility of the reports, I find that it would be most appropriate to determine the issue in advance of the hearing. [ 61 ] The Commission argued that the issue of the timing of submissions on the admissibility of the reports is res judicata, meaning that it has already been decided and should not be reopened. I disagree. That doctrine generally applies to decisions regarding substantive issues in a case. It does not apply to bar a Member from reconsidering the best time to receive submissions on, and to decide, a particular issue. [ 62 ] The hearing of this case will not begin until the end of March 2026.Therefore, there is sufficient time to address the issue of the admissibility of the reports in writing before the start of the hearing. Doing so would allow the Tribunal and the parties to avoid spending time on the issue at the hearing and to ensure that the scheduled hearing time proceeds as efficiently as possible so that the Tribunal will hear all of the parties’ evidence in the time allotted. [ 63 ] The issues to be addressed by the parties in their submissions related to the Third-Party Reports include the following:

1) Are all or part of the Third-Party Reports admissible in this proceeding? 2) If so, should the Tribunal admit all or parts of them into evidence? 3) If so, are there any limits on the purposes for which these reports may be used? [ 64 ] I have set deadlines below for the parties to file submissions regarding the above issues.

VI.

ORDER S AND DIRECTIONS [ 65 ] For the above reasons, I make the following orders and directions: 1) [NAME]’s request for certain grievance documents naming [NAME] is denied;

2) The Respondent’s request that I require [NAME] to comply with the requirements of Rule 22 is denied. However, any materials that relate to her evidence must be produced, including copies of any clinical or other records or notes relating to any health effects experienced by [NAME] because of the allegedly discriminatory practices listed in paragraph 2 above: a. By February 6, 2026, [NAME] must file an amended witness statement for [NAME] which summarizes the substance of her expected testimony in greater detail. [NAME]’ witness statement must provide more detail about [NAME]’s mental health during the relevant time period, the effect on him of the instances of discrimination alleged raised in this case, and any long-term trauma he has experienced as a result of them. b. I encourage the parties to work together to ensure the disclosure of the materials described in paragraph 34. If [NAME] is in possession of the materials described in paragraph 34, he must produce them by February 6, 2026. If only [NAME] is in possession of these materials, [NAME] must request copies of them from her and provide them to the Tribunal and the other parties as soon as possible and no later than February 10, 2026. If [NAME] were to refuse to disclose the materials, the Respondent or any other party must request a subpoena duces tecum as soon as possible and no later than February 12, 2026, so that [NAME] discloses the materials to the Tribunal prior to the hearing.

3) I sustain the Respondent’s objection to [NAME]’s proposal to call [NAME] as a witness: a. I encourage the parties to resolve the question of whether there exist any investigative reports that [NAME] prepared related to any complaint made by [NAME] and whether any such report should be produced. If the parties cannot resolve the matter on their own, they may request my involvement to rule on the matter.

5) I deny [NAME]’s objection to the Respondent’s proposal to call [NAME] at this time. However, I will seek further clarity from the Respondent at a future CMCC on the relevance of her intended testimony, if any;

6) I allow the Respondent’s request that I determine the admissibility of the Third-Party Reports relied upon by the Commission in its SOP in advance of the hearing: a. By February 11, 2026, the Respondent must file concise submissions in support of any objections it has to the admissibility to the Third-Party Reports; b. By February 25, 2026, the Commission and [NAME] must file their concise responding submissions; c. By March 4, 2026, the Respondent must file any concise submissions it wishes to make in reply to the responding submissions filed by the Commission and [NAME].

7) Any party who is unable to meet any of the deadlines above must contact the other parties as soon as possible to work out an alternate timetable to which all parties agree. The parties must propose any such alternate timetable, by February 6, 2026, for me to consider and approve, if reasonable in light of the hearing dates that have been scheduled for this case and which will not be adjourned.

8) The Registry will contact the parties to schedule one last CMCC for this case. I will issue directions to the parties as to information that they will need to produce before the call, including proposed time estimates for each of their witnesses. I will discuss these proposed time estimates with the parties in the CMCC and set reasonable and proportional time limits for the examination in chief and cross-examination of each of the parties’ witnesses. Signed by [NAME] Tribunal Member Ottawa, Ontario January 29, 2026 Canadian Human Rights Tribunal Parties of Record File Nos. : HR-DP-3073-24, HR-DP-3074-24 & HR-DP-3075-24 Style of Cause: [NAME] v. [NAME] Service Canada Ruling of the Tribunal Dated: January 29, 2026 Motion dealt with in writing without appearance of parties Written representations by: [NAME] and [NAME] , for the Complainant [NAME], for the Canadian Human Rights Commission [NAME] , for the Respondent