Docket: T-1458-20
Citation: 2024 FC 1752
Toronto, Ontario, November 4, 2024
PRESENT: Madam Justice Gagné
PROPOSED CLASS PROCEEDING |
BETWEEN: |
NICHOLAS MARCUS THOMPSON, JENNIFER PHILLIPS, MICHELLE HERBERT, KATHY SAMUEL, WAGNA CELIDON, DUANE GUY GUERRA, STUART PHILP, SHALANE ROONEY, DANIEL MALCOM, ALAIN BABINEAU, BERNADETH BETCHI, CAROL SIP, MONICA AGARD and MARCIA BANFIELD SMITH |
Plaintiffs |
and |
HIS MAJESTY THE KING |
Defendant |
and |
AMNESTY INTERNATIONAL CANADA |
Intervener |
and |
THE SPEAKER OF THE SENATE |
Intervener |
ORDERS AND REASONS
[1] The Court is seized with three preliminary motions that were heard at the outset of the hearing of a Motion to certify the present proceedings as a class action:
a Motion by Plaintiffs for leave to adduce a report made by Dr. Rachel Zellars entitled “Safe Space Findings and Recommendations to Privy Council Office”
(Zellars Report) as fresh evidence on the motion for certification and motion to strike;
a Motion by the Plaintiffs to appeal an Order made by Associate Judge Benoit Duchesne (as he then was) whereby the Plaintiffs’ Motion to file a Senate Committee Report and transcripts from hearing before the Senate Committee was dismissed; and
a Motion by the Defendant to strike the affidavit of Raj Anand sworn November 15, 2022, and the joint affidavit of Stephanie Greenwald and Steve Prince sworn August 31, 2021.
[2] Since the Parties needed to know the content of the evidentiary record before the commencement of the hearing of the motion for certification on November 5, the Court issued its orders on the three motions orally this morning, reasons to follow. These are the Court’s reasons on the three motions.
I. Motion to adduce the Zellars Report
A. Overview
[3] The Plaintiffs seek leave to adduce as fresh evidence Dr. Zellars’ report, which was commissioned by and provided to the Privy Council Office (PCO). Plaintiff Nicholas Marcus Thompson obtained the Zellars Report on June 7, 2024, in response to an Access to Information (ATIP) Request. Mr. Thompson states he submitted his ATIP Request immediately after receiving a tip about issues of anti-Black racism at PCO and a study conducted in that regard.
[4] The Zellars Report is not dated but as Dr. Zellars states, she met PCO’s employees from November 2021 until May 2022; the report therefore postdates May 2022.
[5] In her report, Dr. Zellars makes findings on systemic discrimination against Black, Indigenous and racialized employees in the workplace culture at the PCO.
[6] The Plaintiffs argue that the Zellars report is relevant as it discusses key issues that are at the heart of this case. Although they originally submitted that the proper test to adduce fresh evidence after completion of cross-examinations but before the certification hearing was found in Palmer v The Queen, [1980] 1 S.C.R. 759, the leading case on admitting fresh evidence on appeal, they now concede that their motion is brought under Rule 84(2) of the Federal Courts Rules and that, as such, the test is that set forth in Gemak Trust v Jempak Corporation, 2020 FC 644:
[75] … The moving party must establish that the proposed evidence could not have been adduced at an earlier date, the relevance of the proposed evidence, the absence of prejudice to the opposing party, and how the proposed evidence would be of assistance to the Court in disposing of the motion.
B. Analysis
[7] First, I am willing to accept that the Plaintiffs were unaware of the study conducted at PCO’s request until shortly before the ATIP request was made on March 12, 2024, and that they were unaware of the existence of the Zellars report until June 7, 2024. As such, the report could not have been adduced before the cross-examinations were completed in November 2023.
[8] Second, I agree with the Plaintiffs that the Zellars Report has some relevance to the issues before the Court on the Certification Motion.
[9] The Defendant argues that the Zellars Report constitutes double hearsay, as none of its contents is sworn, and the report is based on statements by anonymous PCO employees. The Plaintiffs reply that had the Defendant wanted to cross-examine Dr. Zellars on her report, they only had to pick up the phone and call her. They concede, however, that the PCO employees that were the subject of the study could not be identified, let alone cross-examined, as their identity is protected under the Privacy Act, RSC 1985, c P-21. Although the Plaintiffs initially argued that the Zellars Report should be accepted for the truth of its content, they rather argued at the hearing that it could be used as corroborative evidence.
[10] I agree with the Defendant that the Zellars report cannot be used for the truth of its content as: i) it would be inadmissible double hearsay; and ii) Dr. Zellars herself acknowledges that it was challenging to obtain accurate quantitative and qualitative data.
[11] Therefore, although the Zellars report has some relevancy to the common issues raised at the Certification Motion stage, it can be used, at best, to support the fact that PCO — whose Clerk and Deputy Clerks are the head of the federal public service — has commissioned and obtained the Zellars report.
[12] Third, I agree with the Plaintiffs that the Defendant would not be prejudiced by the use of the Zellars report for the above-noted purpose; the Defendant necessarily knew of its existence and could have filed it itself, should it have chosen to do so (although it did not have to at the certification stage).
[13] Forth, the question as to whether there was systemic workplace discrimination throughout the entire federal public service is at the heart of the motion for certification. As such, I am of the view that the proposed evidence would be of assistance to the Court as it could support the Plaintiffs’ assertion that PCO — the head of the federal public service — was mindful that race-based discrimination might also be present in its own workplace; in other words, that concerns were expressed and that investigations have been conducted. As such, it provides additional context and some basis in fact for extrapolating the experience of the representative Plaintiffs to the proposed class (Canada v Greenwood, 2021 FCA 186 at para 96).
C. Conclusion
[14] The Plaintiffs’ Motion to adduce the Zellars report as fresh new evidence is granted and the Zellars report can be adduced to support the fact that PCO has commissioned and received it.
II. Motion to appeal Associate Judge (AJ) Duchesne’s order (as he then was)
A. Overview
[15] The AJ dismissed the first motion by Plaintiffs to adduce as fresh evidence in the motion for certification, after the completion of cross-examinations, the following documents:
The Standing Senate Committee on Human Rights’ report dated December 11, 2023, titled “Anti-Black Racism, Sexism and Systemic Discrimination in the Canadian Human Rights Commission”
(Senate CHRC Report); and
The transcripts of the public hearings conducted by the Committee on May 1, May 8, and May 15, 2023, which preceded the Senate CHRC Report and are associated with it (Senate Committee Transcripts).
[16] The AJ applied the test for leave to adduce fresh evidence pursuant to Rule 84(2) as reiterated by this Court in Gemak Trust and found that none of the branches of the test was met. Therefore, the AJ found it unnecessary to address the issue of parliamentary privilege that was raised by the Defendant.
[17] In this appeal of the AJ decision, I granted the Speaker of the Senate leave to intervene on this motion and on the sole issue of parliamentary privilege.
[18] After having read the parties’ and the Intervener’s material and heard their submission at the hearing of the motion held on October 28 and 29, I am of the view that the AJ’s sole error lies in the order with which he addressed the issues before him. I agree with the Defendant and Intervener that parliamentary privilege has to be addressed first as, if it applies to the Senate CHRC Report and Senate Committee Transcripts, it ousts the Court’s jurisdiction to even entertain the matter. In other words, once a claim to privilege is made out, the Court will not enquire into the merits of its exercise in any particular instance (Canada (House of Commons) v Vaid, 2005 SCC 30 at paras 29, 37-40, 46-48). The Court should engage with the issue as a matter of jurisdiction first, and not solely as a matter of evidentiary rules such as relevance, utility, or timing.
B. Analysis
(1) Parliamentary Privilege
[19] Parliamentary privilege is a well-established privilege with a long history. It is a fundamental aspect of Canadian constitutional democracy (Gagliano v Canada (Attorney General), 2005 FC 576 at para 108). Parliamentary privilege is central to the proper operation of Parliament as it represents the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions (Vaid at para 29(2)). In Canada, parliamentary privilege is held by members of legislatures and by the Chambers of Parliament collectively. Individuals who appear before House of Commons and Senate committees may also benefit from parliamentary privilege in relation to their testimony (Marc Bosc and André Gagnon, eds, House of Commons Procedure and Practice, 3rd ed (Ottawa, Ontario: House of Commons; Montréal, Québec: Éditions Yvon Blais, 2017) at ch 3).
[20] There are a number of well-established components of parliamentary privilege (Vaid at para 29(10)). In this case, the two relevant components are Parliament’s exclusive control over its proceedings and freedom of speech.
[21] Some parliamentary documents, like parliamentary debates, are admissible for proof of uncontroversial facts and for statutory interpretation (Alberta v Canadian Copyright Licensing Agency (Access Copyright), 2024 FC 292 at para 131).
[22] The admissibility of the Senate CHRC Report and Senate Committee Transcripts must therefore be determined by applying the necessity test established in Vaid: is it necessary for the proper functioning of Parliament that parliamentary privilege precludes this Court from admitting the Report and Transcripts as evidence? If the Report and Transcripts are admissible, does parliamentary privilege impose limits to the extent to which this Court can examine, engage with, and rely on the contents of these documents?
[23] I agree with the Intervener that the Senate CHRC Report and Senate Committee Transcripts are inarguably proceedings of the Senate. Freedom of speech and exclusive control over parliamentary proceedings have been authoritatively established in the United Kingdom (Vaid at para 21), as well as in Canada (Vaid at para 29(10); New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at p 385; Chagnon v Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39 at para 31).
[24] This category of privilege has served to protect parliamentarians and committee witnesses against actions for libel and to protect against debates and other parliamentary proceedings being used against them in court or administrative bodies (Ontario v Rothmans Inc, 2014 ONSC 3382 at paras 9-20; Lavigne v Ontario (Attorney General), 2008 CanLII 89825 (ON SC) at paras 23 and 47-55; Gagliano at paras 62-97). It has also been found to deprive the courts of jurisdiction to hear challenges to the content of Senate committee reports and Senate decisions, including based on illegality or impropriety (Duffy v Canada (Senate), 2020 ONCA 536 at para 66, leave to appeal to SCC refused, 39361 (11 February 2021).
[25] The Plaintiffs are expressly seeking to use the Senate CHRC Report and Senate Committee Transcripts to call into question the efficacy of the Canadian Human Rights Commission to meet its mandate to adjudicate systemic complaints; a fact that is controversial in the case at bar.
[26] Allowing parliamentary proceedings to be adduced to establish facts that are controversial in litigation is irreconcilable with the existing jurisprudence.
[27] Motive is irrelevant to an absolute privilege, whether the documents in question would impugn the testimonies of witnesses or findings of the Senate or House of Commons, or allow any self-serving evidence given before their committees to make its way into controversial court proceedings (Ontario v Rothmans Inc, 2014 ONSC 3382 at para 31). It is worth noting here that two of the Plaintiffs and proposed class representatives, as well as Plaintiffs’ leading counsel testified/advocated before the committee, taking a position akin to the one they are taking before the Court. This Court will consider the testimony that they gave and the arguments they advanced in this proceeding.
(2) Did the AJ err in applying the test for a motion under Rule 84(2)?
[28] In case I am mistaken in finding that parliamentary privilege applies to the Senate CHRC Report and Senate Committee Transcripts, I will touch upon the Plaintiffs’ submissions in support of their Rule 51 motion.
[29] The Plaintiffs remain quite vague on how the AJ erred in law in his analysis of the admissibility of the Senate CHRC Report and the Senate Committee Transcripts at this stage in the proceedings. Their submissions focus primarily on the interests of justice in allowing them the present evidence that can aid them in lifting their “some basis in fact”
burden of proof on the Certification Motion in this proceeding. In fact, I had to remind counsel at the hearing that he needed to focus on the alleged error and on the standard of intervention applicable to said error.
[30] In their written submissions, the Plaintiffs submitted that the standard of review on appeal is correctness, as the AJ applied an incorrect and far too rigid and restrictive test to admit fresh evidence, he misapprehended the critical nature of the evidence, and he failed to conform to the interests of justice. They cite Salt River First Nation #195 v Tk’emlúps te Secwépemc First Nation, 2024 FCA 53, a case which considers the test for admitting fresh evidence in the context of an appeal of a dismissal of a motion to intervene brought by the Appellant. In this decision, the Federal Court of Appeal considers the admissibility of the fresh evidence under what it qualifies as “[a court’s] limited residual discretion to admit new evidence on appeal where the interests of justice require it”
even when the criteria for the “traditional test”
are not met. This test is inapplicable to a motion brought under Rule 84(2).
[31] At the hearing, counsel for the Plaintiffs acknowledged that an error in the application of the proper test to the facts of this case would be a mixed error of fact and law to which the much more stringent standard of intervention applies. Yet, he still failed to identify such an error in the AJ’s decision and tell the Court why such an error would qualify as overriding and palpable. The bulk of the Plaintiffs arguments consisted in rearguing the motion argued before the AJ and relying on the residual “interest of justice”
test.
[32] I am of the view that the AJ applied the proper test and that the Plaintiffs failed to demonstrate that he committed any error, let alone a palpable and overriding error that would justify the Court’s intervention.
C. Conclusion
[33] The Senate CHRC Report and Senate Committee Transcripts are covered by parliamentary privilege and are therefore inadmissible as evidence before the Court. Alternatively, the Plaintiffs failed to demonstrate any error in the AJ’s decision that would warrant the Court’s intervention. The Plaintiffs’ Motion to appeal the AJ’s decision is therefore dismissed.
III. Motion to Strike Affidavits
A. Overview
[34] The Defendant seeks to strike the evidence of the Plaintiffs’ expert witnesses Raj Anand, and Steve Prince and Stephanie Greenwald of RSM Canada.
[35] For Raj Anand’s evidence, the Defendant argues that it opines on the ultimate issue before this Court relating to the preferred procedure element of the certification test. Questions of domestic law clearly fall within the purview of the Court’s expertise such that evidence on these issues would usurp the Court’s role.
[36] For Stephanie Greenwald and Steve Prince’s evidence, the Defendant argues that joint affidavits are not permitted under the Federal Court Rules.
B. Analysis
[37] Pursuant to the test set out by the Supreme Court of Canada in R v Mohan, [1994] 2 S.C.R. 9 (page 20), expert opinion evidence is only admissible where it meets the following requirements:
relevance;
necessity to assist the trier of fact;
absence of an exclusionary rule; and
the witness is qualified to express an opinion “by virtue of study, training or experience.”
[38] Further, as part of the Mohan test, an expert must be independent, impartial, and unbiased (White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23).
(1) The Anand Affidavit
[39] Mr. Raj Anand is a senior counsel with over 35 years experience in private practice, focusing in human rights, constitutional, employment, regulatory and administrative law.
[40] In his purported expert affidavit evidence, Mr. Anand speaks to the jurisdiction of the Canadian Human Rights Commission (CHRC), the Canadian Human Rights Tribunal (CHRT) and the Federal Public Sector Labour Relations and Employment Board (Board), as well as their lack of structure, resources, or competence that allows for an in-depth investigation and examination of systemic racism issues. M. Anand also speaks to the design of the Public Service Commission appointment policy that could also, in his opinion, lead to unconscious bias.
[41] The Defendant seeks to have the Anand Affidavit declared inadmissible for the following reasons:
it is unnecessary to assist the Court because Mr. Anand opines on questions of law that the Court can determine by itself, namely the jurisdiction, institutional competence, and/or expertise of the CHRC, the CHRT and the Board;
Mr. Anand is not a qualified witness, as he does not possess any specific educational or professional qualifications that would qualify him as an expert on the matters on which he is opining, namely human resource systems management, the science of personnel selection or industrial organization psychology; and
Mr. Anand lacks impartiality because his interpretation of his external resources resembles more the role of an advocate making legal submissions than an independent and unbiased expert with a duty of impartiality to the Court.
[42] I pause here to note that this is the second motion filed by the Defendant to have the Anand Affidavit struck out. On December 13, 2022, the Defendant filed a motion for an order striking, amongst others, Mr. Anand’s affidavit on the grounds that it was not proper reply evidence and that the Plaintiffs had not sought leave to file more than five expert witnesses. The issue of improper expert evidence on domestic law was not raised. On January 5, 2023, I dismissed the Defendant’s motion and found that it was indeed proper reply evidence.
[43] That said, the Plaintiffs submit that Mr. Anand does not opine on domestic law but rather on barriers and obstacles associated with the alternative dispute resolution process, which is at issue in this case and on which the Court must rule with respect to the ultimate issue of jurisdiction and preferred procedure.
[44] In my view, the scope of the jurisdiction of the human rights and labour boards to adjudicate human rights and labour dispute is within the expertise of the Court (Association of Chartered Certified Accountants v The Canadian Institute of Chartered Accountants, 2016 FC 1076). The Court does not need the expert evidence of a seasoned counsel to assess jurisdiction and counsel appearing on behalf of the parties will aptly make submissions on the issue.
[45] However, in my view, the Court could benefit from factual or expert evidence on the institutional competence, effectiveness and timeliness of these human rights and labour bodies. The question is therefore whether Mr. Anand qualifies as either an expert witness or a fact witness on the matter. To be an expert witness, Mr. Anand needs to be properly qualified to opine on the matter, whereas to be a fact witness, he needs to have a personal knowledge of the facts he attests to and his testimony needs to be based on his own personal experience.
[46] Mr. Anand was cross-examined on November 7, 2023, several months after my January 5 order.
[47] As to whether Mr. Anand can be qualified as an expert on institutional structure, competence and efficiency, the first thing to note is that when cross-examined on the issue, he could not recall whether he had ever testified as an expert witness before a Court or Tribunal. Mr. Anand confirms not having conducted interviews, independent investigations or research on the matter, and finally confirms not being an expert on organizational psychology or behaviour or in the science of personal selection. In fact, amongst the extensive list of publications attached to his resume, none is in the subject of the recourse mechanisms under the public service labour laws or staffing mechanism in the federal public service.
[48] In my view, on the portions of the Anand Affidavit that are not strictly questions of domestic law better left to this Court to opine upon, Mr. Anand cannot be qualified as an expert witness.
[49] The Court has the discretion to consider a purported expert witness as an “experienced”
fact witness if that person does not qualify as an expert on the subject matter but nevertheless has personal knowledge of relevant facts.
[50] Can Mr. Anand testify as an experienced fact witness on the issue of institutional competence, effectiveness and timeliness of these human rights and labour bodies? In my view, Mr. Anand could have testified as an experienced fact witness on the issue of institutional competence, effectiveness and timeliness of the human rights and labour boards if the content of his affidavit was based on personal knowledge of the facts he attests to, and his testimony based on his own personal experience. Unfortunately, it is not, as a great deal of Mr. Anand’s affidavit summarizes and adopts the observations of others.
[51] The Anand Affidavit will therefore be struck out.
(2) The joint Greenwald-Prince Affidavit
[52] Stephanie Greenwald and Steve Prince are both partners at RSM Canada; the former is a forensic accountant and the latter is an actuary.
[53] The Plaintiffs retained their services to provide evidence in relation to the average rate of promotion for the proposed class members across the federal public service and within major job qualification. The objective of their affidavit is to construct a model and methodology, and use government data to calculate damages arising from the loss of income and pension income due to the discrepancy, if any, in promotion of black employees within the federal public service.
[54] The Defendant submits that joint affidavits are inadmissible under Rules 80 and 81 of the Federal Courts Rules, as the rules state that affidavits shall be drawn in the first person, and they refer to a deponent in the singular.
[55] The Defendant points to jurisprudence of this Court for the proposition that joint affidavits are unknown to our legal system, as they are “internally collusive”
and do not allow for effective cross-examination (Elhatton v Canada (Attorney General), 2013 FC 71 at para 72). They argue that the rule against joint affidavits applies equally to affidavits of fact witnesses and affidavits of expert witnesses.
[56] The Plaintiffs argue that Ms. Greenwald and Mr. Prince have cured the defects by submitting separate, individual affidavits, and as such, the affidavits are properly admissible. They add that the Defendant has had the opportunity to cross-examine the witnesses, although their affidavit was still joint at the time of the cross-examination.
[57] They submit that there are no further defects that would render the affidavits inadmissible, that the experts have properly signed the Code of Conduct for Expert Witnesses, and that their evidence is relevant.
[58] I tend to agree with the Plaintiffs that there is a difference between the affidavit of a fact witness and that of an expert. We often see expert reports being co-authored as experts can easily opine on the same topic and share an opinion.
[59] However, I do not have to rule on the issue as I exercise my discretion to grant the Plaintiffs leave to file the separate affidavits of Ms. Greenwald and Mr. Prince. The Defendant will not suffer any prejudice from this late filing as the content of the affidavits is somewhat identical to the joint affidavit, and the Defendant has been able to extensively cross-examine both experts on October 31, 2023.
C. Conclusion
[60] The Defendant’s motion to strike the Affidavit of Raj Anand and the Joint Affidavit of Steve Prince is granted. However, the Plaintiffs are granted leave to file the affidavits of Stephanie Greenwald and Steve Prince, both sworn September 13, 2024.
[61] The parties and Intervener do not seek costs on these motions and none will be granted.
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