Tribunal Grants Adjournment for Human Rights Hearing Over New Disclosures

OUTCOME: Allowed

Canadian Human Rights Tribunal Tribunal canadien des droits de la personne Citation: 2024 [NAME] 138 Date: December 11, 2024 File No. : HR-DP-2983-23 Between: [NAME] (On behalf of Indigenous Police Chiefs of Ontario) [RESPONDENT] - and - Canadian Human Rights Commission Commission - and - [RESPONDENT] Respondent - and - First Nations Chiefs of Police Association - and - [NAME] Member: [NAME] of Contents TOC \o "1-3" \h \z \u I. OVERVIEW PAGEREF _Toc184812110 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003800310032003100310030000000 II.

DECISION PAGEREF _Toc184812111 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003800310032003100310031000000 III. ANALYSIS PAGEREF _Toc184812112 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003800310032003100310032000000 A. Legal considerations in dealing with adjournment requests PAGEREF _Toc184812113 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003800310032003100310033000000 B. The application of the legal considerations to this case PAGEREF _Toc184812114 \h 2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003800310032003100310034000000 (i) [NAME] _Toc184812115 \h 6 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003800310032003100310035000000 (ii) [RESPONDENT] is familiar with the disclosed documents PAGEREF _Toc184812116 \h 8 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003800310032003100310036000000 (iii) Delay and abuse of process PAGEREF _Toc184812117 \h 9 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003800310032003100310037000000 IV.

ORDER PAGEREF _Toc184812118 \h 10 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003800310032003100310038000000 I. OVERVIEW [ 1 ] This is a ruling on a motion to adjourn the three-week hearing in this case, which is scheduled to begin on January 6, 2025. [ 2 ] The Respondent, [RESPONDENT] ([RESPONDENT]), has asked the Tribunal to adjourn the hearing dates and issue several case management directions. The Canadian Human Rights Commission (the “Commission”) does not oppose [RESPONDENT]’s motion to adjourn. On the other hand, the [RESPONDENT], [NAME], who filed the complaint on behalf of Indigenous Police Chiefs of Ontario ([NAME]), opposes the motion and seeks a finding against [RESPONDENT] of abuse of process.

II.

DECISION [ 3 ] The adjournment request is granted.

III. ANALYSIS A. Legal considerations in dealing with adjournment requests [ 4 ] The Tribunal may make procedural decisions respecting matters before it, including adjournment requests (s. 50(3)(e) of the Canadian Human Rights Act , RSC 1985, c. H-6 (the “Act”)). In considering a request for the adjournment of a hearing, the Tribunal takes into account s. 48.9(1) of the Act, which requires that proceedings be conducted informally and expeditiously, subject to the rules of natural justice and the Canadian Human Rights Tribunal Rules of Procedure, 2021 , SOR/2021-137, (the “Rules”) (see [NAME] v. [NAME] [RESPONDENT] , 2024 [NAME] 10, at para 20, [ [NAME] ]) . [ 5 ] The party seeking to adjourn a hearing must establish that the hearing cannot proceed in a fair manner to justify the loss of resources invested in the hearing proceeding. The Tribunal considers the comparative prejudice to the parties resulting from denying or granting the adjournment and balances the parties’ competing interests ( [NAME] at paras 22-23). [ 6 ] I am satisfied that [RESPONDENT] has established that the hearing cannot proceed in a fair manner given [NAME]’s recent and extensive amendments to its Statement of Particulars (SOP), List of Witnesses, and List of Documents (i.e., its disclosure). The prejudice to the [NAME] exceeds any benefit in proceeding to hearing as scheduled. B. The application of the legal considerations to this case [ 7 ] [NAME] represents nine self-administered Indigenous police services. It alleges that [RESPONDENT] discriminates on the basis of race and national or ethnic origin in the application of the [NAME] ([NAME]), which funds self-administered Indigenous police services. [RESPONDENT] is responsible for the implementation of the [NAME]. [ 8 ] The complaint was filed with the Commission on March 29, 2023, and the Commission referred it to the Tribunal on December 29, 2023. The parties filed their respective Statements of Particulars (SOP), List of Documents, and List of Witnesses over the next few months following which I held the first Case Management Conference Call (CMCC) on May 28, 2024. [ 9 ] [RESPONDENT] contended during the CMCC that the SOP raised issues about alleged chronic underfunding that were not mentioned in the complaint, and which were consequently out of scope. I therefore set a timeline for [RESPONDENT] to file a motion and submissions on the question, and for the [NAME] to respond. [ 10 ] The setting of hearing dates was also dealt with during the CMCC. The parties agreed to reserve January 6-10, 13-17, and 20-24, 2025, for the hearing. [NAME] had listed 38 proposed witnesses, but it confirmed during the CMCC that its list would likely be pared down. For its part, [RESPONDENT] said it intended to call one to two witnesses. However, [RESPONDENT] made it clear that if its motion on the scope of the case was denied, it would need to call more witnesses including experts, which would have an impact on the hearing dates. [ 11 ] On September 20, 2024, I issued my ruling on [RESPONDENT]’s motion ( [NAME] (on behalf of the Indigenous Police Chiefs of Ontario) v. [RESPONDENT] , 2024 [NAME] 104, [ [RESPONDENT] ]. I found that although the three-page complaint form that the Commission referred to the Tribunal did not explicitly mention chronic underfunding, the term had been raised six times in a prior 30-page version of the complaint that [NAME] had filed, and that [RESPONDENT] had been sufficiently notified of these allegations. The issue of chronic underfunding was therefore not outside the scope of the complaint before the Tribunal. I denied [RESPONDENT]’s motion. [ 12 ] However, I also noted that [RESPONDENT] had made important points in its submissions about the lack of particulars in [NAME]’s SOP regarding these claims of chronic underfunding ( [NAME] at paras 32-33). I stated that the issue could be addressed along with any other disclosure related matters at the next CMCC. [ 13 ] I scheduled the CMCC for October 11, 2024. On October 9, 2024, [RESPONDENT] informed the Tribunal and the [NAME] that in its view, given the decision on the scope of the complaint, the matter was not ready for hearing in January 2025, since additional pre-trial steps were required including pleading amendments, further and better particulars, document production, and witness identification. [ 14 ] [RESPONDENT] raised the matter at the October 11 th CMCC and requested orally that the Tribunal adjourn the scheduled hearing while these other issues are addressed. A long discussion ensued between me and counsel following which [NAME] acknowledged that its SOP as it stood needed to be amended to clarify its position. Rather than requiring [NAME] to formally make a motion to amend its SOP, which would unduly delay proceedings, I immediately granted [NAME] the opportunity, by November 7, 2024, to amend its SOP, its List of Witnesses, and its List of Documents. I also directed that once the [NAME] viewed [NAME]’s amended material, they could file “any responses they deem appropriate,” including amended versions of their SOPs and other documents, by November 22, 2024. [ 15 ] On November 7, 2024, [NAME] filed amended versions of its SOP, List of Witnesses, and List of Documents. The SOP went from 168 paragraphs to 269. The names of [NAME] were added to the List of Witnesses (though some of those may have been mentioned in the previous version by title only and not by name). Furthermore, 14 new [NAME] were added. The List of Documents was extensively modified as well. According to [RESPONDENT], the total number of documents increased from 89 to over 800. [ 16 ] On November 22, 2024, [RESPONDENT] filed a motion to adjourn the scheduled hearing, arguing that the case is not ready for hearing. [RESPONDENT] referred to all the above-mentioned changes to [NAME]’s SOP and lists and pointed to numerous issues the new information gave rise to including: 14 [NAME] were added without any [NAME] reports having been filed in accordance with Rule 22 of the Rules. The number of [NAME] reports exceeds the limits of five set out in s. 7 of the [RESPONDENT] , R.S.C, 1985, c. C-5, for which leave from the Tribunal is required. [RESPONDENT] has only just begun reviewing the newly disclosed documents, it has already identified gaps in the disclosure. [RESPONDENT] may need further particulars from [NAME]. [RESPONDENT] will need to broaden its own documentary disclosure because of the additional allegations in the SOP, and some documents may require prior vetting pursuant to s. 39 of the [RESPONDENT] (cabinet confidences). [RESPONDENT] submits that the Tribunal may need to resolve several questions as a preliminary matter, including the temporal scope of the complaint, an issue estoppel question raised in [NAME]’s amended SOP, and [NAME]’s request in the amended SOP that the case be bifurcated to deal with liability first and address remedies later. [ 17 ] [RESPONDENT] submits that the hearing should be adjourned as a matter of procedural fairness, maintaining that it would be highly prejudicial to proceed as scheduled. [ 18 ] Regarding the experts’ issue alone, [RESPONDENT] points out that under Rule 22(1), parties intending to call an [NAME] are required to serve and file, within the time limit established by the Tribunal, a signed report setting the [NAME]’s name, address, and the substance of their anticipated testimony. The report must be accompanied by the [NAME]’s curriculum vitae (CV) and a statement indicating how their training, education and experience qualify them to produce the report. [RESPONDENT] notes that [NAME] has provided only limited disclosure regarding its proposed experts, consisting of partial CVs and some prior publications. No specific reports relating to this case were provided. Furthermore, [RESPONDENT] contends that even if reports had been provided, it could not reasonably be expected to review and assess them, contract with responding experts, and provide responding [NAME] reports in the time remaining before January 6, 2025. [ 19 ] Similarly, [RESPONDENT] maintains that the volume of documents that has been disclosed less than two months before the hearing leaves inadequate time for it to review and prepare for the hearing. [ 20 ] [RESPONDENT] submits that many of the varied issues that it has identified call for resolution in advance of the hearing, particularly matters relating to [NAME]’s position regarding a ruling on issue estoppel and its request to bifurcate the claim. Therefore, [RESPONDENT] proposes that instead of proceeding with the hearing on the scheduled dates, the Tribunal establish a schedule to deal with these issues by motion or otherwise, and if needed, use some of the hearing dates for oral submissions. [ 21 ] The Commission submitted for its part that for a Tribunal hearing to be procedurally fair, each party is entitled to know the case that would be presented and argued before the Tribunal. [NAME] did not follow Rule 22(1) with respect to the disclosure of the experts’ proposed evidence. The purpose of this rule is to ensure that parties are provided with advance notice of the [NAME]’s testimony at the hearing. This rule safeguards procedural fairness by ensuring that all parties know the case that they must respond to. Here, [NAME] gave notice on November 7, 2024, of its 14 [NAME]. The Tribunal had not yet had an opportunity to set time limits for the filing of their [NAME] reports, let alone time to confirm with the [NAME] if they intended to file rebuttal [NAME] reports. [ 22 ] The Commission made an additional observation. According to Rule 36, parties must file their list of documents they intend to introduce into evidence no later than 30 days before the hearing begins. [NAME] disclosed hundreds of new documents that the [NAME] must review in preparation for the hearing. Although I suspended the 30-day deadline given the present circumstances, the Commission points out that any new deadline I set will need to consider the time needed for the parties to review the newly disclosed documents. [ 23 ] The Commission concludes by highlighting the complex nature of this case, involving nine self-administered Indigenous police services, which police 86 First Nation communities. The remedies being sought are systemic in nature and if awarded will have far-reaching impacts. Given these complexities, parties must adhere to the Rules to enable everyone to know the cases that they must meet and be able to present their own cases fully and amply. The right to know the case to meet and the right to fully respond are the very foundations of natural justice and procedural fairness. [ 24 ] I agree with the Commission and [RESPONDENT]. I am not persuaded by [NAME]’s arguments advanced in its objection to the adjournment request. [ 25 ] [NAME]’s submissions are basically threefold:

1) The experts’ issue is basically a technicality that can easily be addressed and does not warrant adjourning the hearing.

2) The [RESPONDENT] is familiar with the additional disclosed documents. 3) [RESPONDENT]’s adjournment motion and other requests are merely pretexts to delay the hearing and amount to an abuse of process. (i) [NAME] [ 26 ] [NAME] claims that it has largely complied with Rule 22(1) but that only the CVs of several witnesses remain outstanding. It does not intend to file 14 “brand-new [NAME] reports,” but rather what would amount to “short summaries of the [NAME]’s prior experience.” I note that [NAME]’s amended List of Witnesses appears to just include one or two paragraph summaries about each proposed [NAME]. There are references to prior writings for some of the experts. [ 27 ] It seems that [NAME] may have misunderstood the terms of Rule 22(1), which I reproduce below: 22 (1) For each [NAME] witness whom a party intends to call, that party must serve and file, within the time limit established by the panel, a report that (a) sets out the [NAME]’s name and address; (b) includes the [NAME]’s curriculum vitae and a statement indicating how their training, education and experience qualify them to produce the report; (c) sets out the substance of their anticipated testimony; and (d) is signed by the [NAME]. 22 (1) Pour chaque témoin [NAME] qu’elle a l’intention de citer, toute partie signifie et dépose, dans le délai fixé par la formation, un rapport qui : a) contient les nom et adresse de l’[NAME]; b) contient son curriculum vitae et une déclaration expliquant comment sa formation, ses études ou son expérience lui confèrent la compétence nécessaire pour rédiger son rapport; c) contient l’essentiel du témoignage prévu; d) est signé par l’[NAME]. [ 28 ] A party calling an [NAME] witness to testify must provide both the witness’s CV (Rule 22(1)(b)) and a report setting out the substance of their anticipated testimony. This requirement extends beyond a brief summary of the witness’s experience. [ 29 ] The purpose of this rule is not to satisfy procedural expectations, as [NAME] submits, but rather, as the Commission correctly points out, to safeguard fundamental procedural fairness by ensuring that all parties know the case that they must respond to. [ 30 ] [NAME] contends that during the first CMCC, it mentioned the possibility that [NAME] evidence could be called and that it said it would be able to advise on its anticipated experts once the “scope” motion was resolved. It indicated that its experts would be drawn from the ranks of those individuals who already participated in or authored existing reports about First Nations community safety. [NAME]’s intent is to have those experts speak to the findings of those already published reports about the [NAME]. [ 31 ] Notwithstanding these experts’ notability, parties must comply with the fundamental procedural fairness requirements regarding [NAME] evidence, including seeking direction from the Tribunal for timelines to file the CVs and reports and for the [NAME] to file any rebuttal [NAME] reports. These requirements apply to all parties, to ensure equitable proceedings. [ 32 ] [NAME]’s argument that procedural compliance with the Rules is less critical given [RESPONDENT]’s potential familiarity with these experts also lacks merit. Each party, including the Commission acting in the public interest, must be able to have a clear understanding of the specific case being advanced. [ 33 ] Finally, [NAME] proposes that if additional time is required to comply with Rule 22(1), the case could still proceed with lay witnesses on the scheduled January 2025 hearing dates. The [NAME] would testify later. Organizing hearings in phases can be an option in some instances. However, in this case, the [NAME] have still not received full disclosure of the entire case being advanced. Not only is information regarding the 14 new [NAME] missing, but there are also over 700 new documents that were just disclosed and over 100 new allegations made in the SOP. [RESPONDENT] contends that it will require further disclosure and more particulars about this new information, especially in relation to the question of on-the-ground policing calls and services, which [RESPONDENT] does not provide or regulate. These claims need to be addressed before the hearing can start. In these circumstances, the [NAME] will be unable to participate in the hearing fully and amply having only received disclosure in a piecemeal fashion. (ii) [RESPONDENT] is familiar with the disclosed documents [ 34 ] [NAME] maintains that the newly disclosed documents are publicly available information or are already in [RESPONDENT]’s possession. Consequently, the documents should not come as a surprise to [RESPONDENT]. [ 35 ] Whether or not documents are publicly accessible or in the other party’s possession, Rules 18 to 20, as a matter procedural fairness, require parties to disclose to each other all documents in their possession relating to a fact or issue raised in the complaint or orders being sought. This rule applies to all cases before the Tribunal. There is no distinction to be made based on a given party’s identity or access to general information. [ 36 ] Furthermore, [NAME]’s revision of its List of Documents following the [NAME] ruling should not be viewed, as it asserts, as a voluntary concession but rather, as a procedural obligation. The [NAME] ruling accepted [NAME]’s contention, which it claims to have held from the outset, that chronic underfunding is an issue in this case. Given this position, [NAME] should have disclosed all documents related to this issue from the outset, and not as a result of the Tribunal’s explanations about the Rules at the October CMCC. [ 37 ] With the disclosure of hundreds of documents less than two months before the start of the hearing, [NAME] must be afforded a reasonable opportunity to review and reassess the impact on their own disclosure obligations, particularly when the new disclosure is accompanied by an amendment to the SOP adding over 100 new paragraphs (roughly 60% more than in the original SOP). [ 38 ] [NAME] argues that given the broader scope of the case, which was confirmed in the [NAME] ruling, [RESPONDENT] should have anticipated and prepared to expand its disclosure by now. However, it is also clear from [NAME] that the scope of the complaint was a contentious issue between the parties, and even though I found that the matter of chronic underfunding had been raised before the complaint was referred to the Tribunal, I also observed that the sufficiency of the particulars relating to this allegation was in question. Given these uncertainties, I am not persuaded that [RESPONDENT] has acted unreasonably by not trying to anticipate what details [NAME] would raise in an amended version of its SOP and List of Documents. (iii) Delay and abuse of process [ 39 ] [NAME] submits that this motion to adjourn along with the other related issues mentioned in it are procedural tactics adopted by [RESPONDENT] to delay this case and constitute an abuse of process. [ 40 ] I do not agree. [ 41 ] As a matter of procedural fairness, any party faced with significant changes in the other party’s SOP, List of Witnesses, and List of Documents, as occurred in this case, is entitled to a reasonable opportunity to deal with this new information and address it, especially given the complexity and potential global impact of the case, as the Commission has pointed out. [ 42 ] Furthermore, [RESPONDENT] agreed to the existing hearing schedule on the assumption that the scope of the case was more limited. [NAME] successfully established that the scope is broader, it was inevitable that the nature of the hearing would also be broadened and become more complex, affecting [RESPONDENT]’s disclosure obligations as well. [ 43 ] I am not persuaded by [NAME]’s argument that the adjournment motion is a pretext to unduly delay this case. The request to adjourn the hearing is not a delaying tactic but a reasonable response to the expanding scope of the proceedings. Furthermore, there has not been any excessive delay to date in this case. The parties filed the SOPs and related documents on time, with a few minor extensions to deal with the interested persons’ motions to intervene. The case has proceeded quickly relative to other human rights complaints, especially given the complex matters it addresses. [ 44 ] The additional issues that [RESPONDENT] has raised, such as the need to seek leave from the Tribunal to comply with s. 7 of the [RESPONDENT] or to bifurcate the hearing, are not tactics. They are required procedures. Dealing with these matters will not unduly delay the case and the parties can rest assured that the Tribunal will address all such issues expeditiously as they arise, as part of its case management process. The Tribunal has to date dealt with a series of preliminary matters in this case (intervention requests, motion on scope). [ 45 ] Furthermore, [RESPONDENT] points out that it already sent its request for further particulars to [NAME] on November 22, 2024. If [NAME] provides the particulars in response, [RESPONDENT] will not even need to file a motion to compel their production, thereby minimizing any additional delay in the hearing process. [ 46 ] [NAME] claims that by raising these procedural issues, [RESPONDENT] is in violation of the Department of Justice’s guidelines about how it must approach litigation with Indigenous peoples. The Tribunal is, of course, committed to the removal of barriers for Indigenous litigants in matters before it and to the conduct of culturally appropriate proceedings. However, the implementation of the Department of Justice’s guidelines is an internal matter that does not fall upon the Tribunal to address. [ 47 ] For all these reasons, I'm not persuaded by [NAME]’s arguments opposing [RESPONDENT]’s adjournment request. I find that the hearing cannot proceed in a fair manner on the scheduled hearing dates. The prejudice to the [NAME] would exceed any benefit in proceeding.

IV.

ORDER [ 48 ] [RESPONDENT]’s motion is granted. [ 49 ] [NAME]’s request for a finding of abuse of process is denied. [ 50 ] The hearing scheduled for January 6-10, 13-17, and 20-24, 2025, is adjourned to a date to be determined. [ 51 ] The Tribunal will convene a CMCC shortly to address any preliminary issues the parties have raised and potentially set new hearing dates. Signed by [NAME] Tribunal Member Ottawa, Ontario December 11, 2024 Canadian Human Rights Tribunal Parties of Record File No. : HR-DP-2983-23 Style of Cause: [NAME] (On behalf of Indigenous Police Chiefs of Ontario) v. [RESPONDENT] of the Tribunal Dated: December 11, 2024 Motion dealt with in writing without appearance of parties Written representations by: [NAME] [NAME], [RESPONDENT], [NAME] for the [RESPONDENT] [NAME] , for the Respondent [RESPONDENT], for the Commission