Judgments

[1995] 1 F.C. 680

T-1028-94

Attorney General of Canada (Applicant)

v.

James Russell Lambie and Canadian Human Rights Commission (Respondents)

Indexed as: Canada (Attorney General) v. Lambie (T.D.)

Trial Division, Rothstein J.—Ottawa, November 23 and December 2, 1994.

Human rights — Application for judicial review of Human Rights Review Tribunal decision to allow complainant to call new evidence upon appeal — Canadian Human Rights Act, s. 56(4) giving Review Tribunal broad discretion to admit additional evidence if considering it “essential in the interests of justice” — Tribunal addressing whether evidence essential as allowing but 2 out of proposed 11 witnesses to testify — S. 56(4) not containing criteria for exercise of discretion — Guidelines for exercise of discretion — After finding evidence relevant, credible, affecting result, correctly holding greater latitude in application of requirement evidence not be admitted if, by ”due diligence,“ could have been adduced at trial.

Evidence — Application for judicial review of Human Rights Review Tribunal decision to hear new evidence upon appeal — Canadian Human Rights Act, s. 56(4) giving Review Tribunal broad discretion to admit additional evidence if of opinion “essential in the interests of justice” — Principles set out by S.C.C. in Palmer et al. v. The Queen guidelines for exercise of discretion — More latitude in application of due diligence test than other principles — No error in deciding to hear new evidence based on unsworn information provided credible — Canadian Human Rights Act requiring credibility determination be based partly on transcript, partly on viva voce evidence — “Will-say” statements herein sufficient for credibility determination — Admission of evidence not final determination of credibility as can be rejected after cross-examination.

This was an application for judicial review of a Human Rights Review Tribunal decision to allow respondent, Lambie, to call two new witnesses upon an appeal following the dismissal of his complaint that the Canadian Armed Forces (CAF) had discriminated against him by denying a promotion and appointment as Base Commander because of his marital status. Respondent was in a common law relationship while awaiting divorce. Lt.-Col. Lambie sought to call 11 more witnesses, but the Review Tribunal ruled that he might call two secretaries said to have overheard conversations between Generals in which concern was expressed about promoting Lambie because of his marital status. There was no indication as to what efforts had been made by counsel then acting to discover the evidence or why it was not available before the original hearing, but there was some suggestion that counsel had not adequately fulfilled his professional responsibility. The Review Tribunal determined that the CAF would be allowed to present rebuttal evidence.

Canadian Human Rights Act, subsection 56(4) permits a Review Tribunal to admit additional evidence or testimony “if in its opinion it is essential in the interests of justice to do so.”

The Review Tribunal considered the principles formulated by the Supreme Court of Canada in Palmer et al. v. The Queen for the admission of new evidence on appeal: (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, provided that this general principle will not be applied as strictly in a criminal case as in civil cases; (2) the evidence must be relevant; (3) it must be credible, and (4) it must be expected to have affected the result. That the Review Tribunal allowed but two of the eleven additional witnesses requested indicated that it decided that their evidence was essential. The Tribunal held that the evidence of these two witnesses was relevant, credible on its face and, if believed, could affect the result. It further held that there was latitude in a human rights case to relax the due diligence requirement if the other principles were met.

The applicant’s counsel argued that the there was no evidence of due diligence, that the Review Tribunal had erred in considering the alleged apparent negligence of counsel and in holding that in human rights cases there is latitude to relax the due diligence requirement if the other principles are met. He also argued that the Review Tribunal did not properly address the credibility requirement of the Palmer rules in that the Tribunal did not require sworn statements by the potential witnesses, but relied on summary statements of what the witnesses would say if called to testify.

Held, the application should be dismissed.

Subsection 56(4) clothes the Review Tribunal with a broad discretion. It is entitled to formulate its own opinion as to whether additional evidence or testimony is essential in the interests of justice. The formulation of that opinion is the essence of a discretionary decision. The section does not contain criteria as to how the Review Tribunal is to decide whether additional evidence or testimony is essential in the interests of justice. The Palmer principles guide the Review Tribunal in the exercise of its discretion, but the words of the statute determine the nature of the Review Tribunal’s decision.

The Review Tribunal did not err in relaxing the due diligence test, having satisfied itself that the other Palmer principles had been met. Unlike the other Palmer principles which are expressed in mandatory language, the due diligence requirement is worded somewhat less stringently. There appears to be a greater degree of latitude in the application of the due diligence principle than there is with respect to the other three. Further, it has been held that a court may, as a matter of discretion, overlook the “discoverable with reasonable diligence” requirement.

In a clear case of ineptness of counsel, the Federal Court of Appeal might refuse an application to admit new evidence on appeal. However, the discretionary decision in this case was that of the Review Tribunal, to exercise according to its perception of all the circumstances. It was not one with which the Court should interfere.

Nothing in Palmer indicates that a tribunal must base its decision on credibility only on sworn affidavits or on statements under oath. Human rights tribunals may receive information other than by affidavit or under oath. A Review Tribunal does not err if it decides to hear new evidence on the basis of unsworn information or “will-say” statements, as long as it concludes that the information is credible, in the sense that it is reasonably capable of that belief. Evidence which is vague and highly summarized may be insufficient to enable a Review Tribunal to determine whether it is credible. But here the “will-say” statements indicate the positions of the proposed witnesses, and why they would have the knowledge of the conversations of which they say they were aware. That a Review Tribunal decides to admit evidence does not mean that it has finally decided the question of the credibility of that evidence. The Tribunal can still reject the evidence after hearing direct and cross-examination if it concludes that the testimony is not credible. While a credibility determination based in part on a transcript and in part on viva voce evidence may well be difficult, it is the procedure required by the statute.

The appellant would not be prejudiced. The Review Tribunal has said that it will allow rebuttal evidence, including the calling of new witnesses and the recalling of individuals who have already testified.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 50(2)(c), 56(4).

Criminal Code, R.S.C., 1985, c. C-46, s. 683(1).

CASES JUDICIALLY CONSIDERED

APPLIED:

Palmer et al. v. The Queen, [1980] 1 S.C.R. 759; (1979), 106 D.L.R. (3d) 212; 50 C.C.C. (2d) 103; 14 C.R. (3d) 22 (Eng.); 17 C.R. (3d) 34 (Fr.); 30 N.R. 181; Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165; (1994), 113 D.L.R. (4th) 321; 165 N.R. 161; 71 O.A.C. 81; 2 R.F.L. (4th) 313; Lo v. Canada (Canadian Human Rights Commission), [1994] F.C.J. No. 1474 (C.A.) (QL).

CONSIDERED:

Goldner v. Canadian Broadcasting Corp. (1974), 13 C.P.R. (2d) 230; 1 N.R. 420 (F.C.A.); Goldner v. Canadian Broadcasting Corp. (1972), 7 C.P.R. (2d) 158 (F.C.T.D.); Cook v. Mounce (1979), 26 O.R. (2d) 129; 104 D.L.R. (3d) 635; 12 C.P.C. 5 (Div. Ct.).

APPLICATION for judicial review of a Human Rights Review Tribunal decision to allow applicant to call new evidence upon appeal. Application dismissed.

COUNSEL:

Jim R. Hendry for applicant.

Pascale-Sonia Roy for respondent James Russell Lambie.

Rosemary Morgan for respondent Canadian Human Rights Commission.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

Myers Weinberg Kussin, Winnipeg, for respondent James Russell Lambie.

Canadian Human Rights Commission, Ottawa, for respondent Canadian Human Rights Commission.

The following are the reasons for order rendered in English by

Rothstein J.: This is a judicial review of a March 29, 1994, decision of a Human Rights Review Tribunal. On December 12, 1988, the respondent James Russell Lambie, at the time a Lieutenant-Colonel[1] in the Canadian Armed Forces, complained to the Canadian Human Rights Commission that the Canadian Armed Forces had discriminated against him by denying him a promotion to Colonel and an appointment as Base Commander because of his marital status. At the relevant time, the respondent was in the process of obtaining a divorce and was living in a common law relationship with another woman. A Human Rights Tribunal dismissed the complaint on March 10, 1993, finding that there was no inappropriate consideration of Lt.-Col. Lambie’s marital status by the Canadian Armed Forces in denying his promotion and his appointment as Base Commander.

Lt.-Col. Lambie appealed to a Human Rights Review Tribunal. For the purposes of the appeal he wanted to call eleven more witnesses. (Seven witnesses had been called on his behalf before the original tribunal.) The Review Tribunal determined that it would allow Lt.-Col. Lambie to call two witnesses out of the eleven applied for and allow the Canadian Armed Forces to present rebuttal evidence.

The Attorney General of Canada, on behalf of the Canadian Armed Forces, now seeks judicial review of the Review Tribunal’s decision to allow Lt.-Col. Lambie to call two new witnesses.

The relevant provision of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the Act), is subsection 56(4):

56. …

(4) A Review Tribunal shall hear an appeal on the basis of the record of the Tribunal whose decision or order is appealed and of submissions of interested parties but the Review Tribunal may, if in its opinion it is essential in the interests of justice to do so, admit additional evidence or testimony.

In forming its opinion to admit the evidence of two new witnesses, the Review Tribunal had regard to the principles followed by courts when considering the admission of new evidence on appeal. As stated by McIntyre J. in Palmer et al. v. The Queen, [1980] 1 S.C.R. 759, at page 775:

The overriding consideration must be in the words of the enactment “the interests of justice” and it would not serve the interests of justice to permit any witness by simply repudiating or changing his trial evidence to reopen trials at will to the general detriment of the administration of justice. Applications of this nature have been frequent and courts of appeal in various provinces have pronounced upon them …. From these and other cases, many of which are referred to in the above authorities, the following principles have emerged:

(1)  The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen.

(2)  The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3)  The evidence must be credible in the sense that it is reasonably capable of belief, and

(4)  It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [Footnotes omitted.]

In the judicial review before me, counsel for the Attorney General argued that the Palmer principle of due diligence was improperly dealt with by the Review Tribunal. He said there was no evidence of due diligence on the part of the respondent or his counsel at all and further submitted that, to the extent the Review Tribunal took into account the alleged apparent negligence of counsel, it was wrong to do so. He further submitted that the Review Tribunal’s finding, that in human rights cases there is latitude to relax the due diligence requirement if the other principles are met, was wrong in law.

I think it is first necessary to look at the words of subsection 56(4) of the Act, which is the source of the Review Tribunal’s jurisdiction to admit additional evidence or testimony. The important words are:

56. …

(4) … but the Review Tribunal may, if in its opinion it is essential in the interests of justice to do so, admit additional evidence or testimony.

These words clothe the Review Tribunal with a broad discretion. The Review Tribunal is entitled to formulate its own opinion as to whether additional evidence or testimony is essential in the interests of justice. The formulation of that opinion is the essence of a discretionary decision. The section itself contains no criteria as to how the Review Tribunal is to decide if additional evidence or testimony is essential in the interests of justice. The Palmer principles guide the Review Tribunal in the exercise of its discretion, but it is the words of the statute that, first and foremost, determine the nature of the decision to be made by the Review Tribunal.

Counsel for the applicant placed some emphasis on the word “essential.” He said that having regard to this word, the test for admission of new evidence is stricter under these words than under the Criminal Code, R.S.C., 1985, c. C-46, which employs the phrase “where it considers it in the interest of justice.” (See subsection 683(1) of the Criminal Code.)

In this case, the respondent asked that eleven new witnesses be called to testify before the Review Tribunal. The Review Tribunal allowed only two witnesses. It is obvious that the Review Tribunal did not turn a blind eye to the question of whether the evidence was essential. With regard to the two witnesses whose evidence the Review Tribunal allowed, the Review Tribunal stated at pages 6 and 7:

The testimony of Ms. Verne Lewis-Thompson and Ms. Jacqueline-Deborah Robertson, if believed, could have certainly impacted on the outcome of the hearing. General Ashley’s evidence is that marital status was not a consideration, but these two witnesses allegedly overheard General Ashley indicate the opposite. Consequently, their testimony should be heard and it is so ordered.

I am satisfied that the Review Tribunal decided that the evidence of these two witnesses was essential.

Turning next to the Palmer principles, it is clear that the Review Tribunal had regard to these principles. At page 5 of its decision, the Review Tribunal stated:

It is the view of this Review Tribunal that the principles outlined in Palmer v. The Queen, supra are more significant and essential in nature than procedural matters such as the rules of evidence, and are therefore encompassed within the consideration of whether or not the evidence intended to be called is “essential in the interests of justice”. These principles refined or rationalize the considerations to be made by a Review Tribunal in determining if the admission of further evidence is in the “interests of justice”. The result is that the Review Tribunal still must exercise its discretion under Section 56(4) in accordance with these principles, notwithstanding the object of the Act, the broad and liberal interpretation to be given to the Act and the relaxation of rules of evidence contained in it ….

…

In applying this decision of law to the case at hand ….

As to the second, third and fourth of the Palmer principles, the Review Tribunal thought the evidence of two witnesses was relevant, credible on its face, and if believed, could affect the result. The Review Tribunal stated at page 5:

… this Tribunal is prepared to allow the Respondent to call two additional witnesses, those being Ms. Verne Lewis-Thompson and Ms. Jacqueline-Deborah Robertson. These two individuals were secretaries to General Garland and General Patrick, respectively, at the time in question. The testimony sought to be introduced is that there were a number of discussions between the respective General served by each and General Ashley specifically regarding the proposed promotion of the appellant. The indicated testimony is that General Ashley expressed serious concerns about promoting the Appellant because of the Appellant’s marital status.

This testimony sought to be introduced appears to be, for the purpose of this application, relevant, credible on its face and, if believed, could reasonably, when taken with the other evidence adduced at the hearing, be expected to have affected the result.

The Review Tribunal also referred to the due diligence test. At page 6 of its decision, the Review Tribunal stated:

It is this Tribunal’s view that there is latitude in a Human Rights case to relax the due diligence requirement if the other principles are met.

Was the Review Tribunal in error in relaxing this principle? I do not think so. The Palmer principles have been described as guidelines for the admission of new evidence by an appeal court. In Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, at page 185, L’Heureux-Dubé J. states:

The criteria which have guided courts in the exercise of their discretion to admit fresh evidence on appeal have been examined in a number of cases, both criminal and civil, from which guidelines have emerged. [Emphasis added.]

Certainly, the second, third and fourth of the Palmer principles are framed in mandatory language, i.e. “[t]he evidence must be relevant …. [t]he evidence must be credible … [i]t must be such that if believed it could reasonably … be expected to have affected the result.” Indeed, it is not easy to envisage a reason for the admission of new evidence if the new evidence did not meet these three criteria. However, the due diligence principle is worded somewhat less stringently [at page 775]:

The evidence should generally not be admitted … provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

The words suggest a greater degree of latitude in the application of the due diligence principle than the other three principles.

Further, a due diligence determination has been described as discretionary in the broadest terms. In Lo v. Canada (Canadian Human Rights Commission), [1994] F.C.J. No. 1474 (C.A.) (QL), the learned Justice [Hugessen J.A.] states at page 3:

Even though there is no doubt that we could, as a matter of discretion, overlook the “discoverable with reasonable diligence” requirement ….

It appears from the words of Hugessen J.A. that in exercising its discretion with respect to due diligence, a court may even overlook this consideration.

Having regard to this approach to the question of due diligence, I have no difficulty concluding that the Review Tribunal did not err in adopting a more relaxed approach to the due diligence requirement, having satisfied itself that the other Palmer principles had been met in this case.

As to whether there was evidence of due diligence tendered before the Review Tribunal, the material before me does not disclose the type of evidence one would normally expect. There is no indication of what efforts were made by original counsel to discover the evidence or precisely why it was not available before the original hearing. However, there seems to have been some suggestion that counsel had not adequately fulfilled his professional responsibility. It was argued that since Lt.-Col. Lambie had not been represented by his own counsel (he was represented by counsel for the Canadian Human Rights Commission), he should not be prejudiced by the failure of counsel. While the Review Tribunal did not expressly adopt these arguments, it is apparent from its recitation of these matters, followed by its decision to relax the due diligence requirement, that it must have given some weight to these arguments.

Is counsel’s failure to fulfil his professional responsibilities a justification for relaxing the due diligence requirement? Applicant’s counsel drew my attention to authorities such as Goldner v. Canadian Broadcasting Corp. (1974), 13 C.P.R. (2d) 230 (F.C.A.), in which Hyde D.J. found that ineptness of counsel was not a basis for the admission of new evidence before the Federal Court of Appeal on an appeal from the Trial Division.

Exactly what the circumstances were between Lt.-Col. Lambie and counsel for the Commission and whether this was a case of ineptness of counsel is not entirely clear on this record. In a clear case of ineptness of counsel acting for a party, the Federal Court of Appeal might well refuse an application to admit new evidence on appeal. However, the discretionary decision in this case was that of the Review Tribunal, to exercise according to its perception of all the circumstances. It is not one with which this Court should interfere by substituting its view of the way in which to deal with the alleged failure of counsel and the relationship or lack thereof between Lt.-Col. Lambie and counsel, for that of the Review Tribunal.

Applicant’s counsel also submitted that the Review Tribunal did not properly address the credibility requirement of the Palmer rules, because it did not require sworn statements by the potential witnesses, and relied only on summary statements of what the witnesses would say if called to testify. Nothing in Palmer or in any of the other cases cited before me indicates that in deciding whether proposed evidence is credible, a tribunal must base its decision only on sworn affidavits or on statements under oath. It is true that in court proceedings, that is likely the only way such proposed evidence could come before the Court. It is also a desirable procedure to follow. But human rights tribunals may receive information other than by affidavit or under oath. Paragraph 50(2)(c) of the Act provides:

50. …

(2) In relation to a hearing under this Part, a Tribunal may

…

(c) receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Tribunal sees fit, whether or not that evidence or information is or would be admissible in a court of law.

As a matter of law, I do not think a Review Tribunal errs if it decides to hear new evidence on the basis of unsworn information or “will-say” statements, as long as it concludes that the information is credible, in the sense that it is reasonably capable of belief.

In Cook v. Mounce (1979), 26 O.R. (2d) 129 (Div. Ct.), Griffiths J. stated, at page 131:

… there was nothing before Judge Kelly to indicate that it was apparently “credible” evidence. The proposed evidence was detailed in very vague and summary form by the appellant, who testified before His Honour Judge Kelly.

I agree that evidence which is vague and highly summarized may be insufficient to enable a Review Tribunal to determine if it is credible. But here, the “will-say” statements indicate the positions of the proposed witnesses, and why they would have the knowledge of the conversations of which they say they were aware. There are names of the persons involved in the discussions and indications of specific matters referred to in conversations. Of course, the proposed witnesses will be subject to cross-examination at the Review Tribunal hearing. That a Review Tribunal decides to admit evidence on the basis of the Palmer principles does not mean that it has finally decided the question of the credibility of that evidence. After hearing the direct evidence and cross-examination, it is open to the Review Tribunal to reject the evidence if, notwithstanding its decision to allow the evidence, it concludes it is not credible in whole or in part.

Counsel for Lt.-Col. Lambie pointed out that in the transcript of her argument before the Review Tribunal, she indicated that she was prepared to introduce the “will-say” statements of the witnesses that were proposed to be called in affidavit form. The Review Tribunal did not insist upon it. Other counsel made no reference to it. I think it would be unfortunate for this objection to succeed after counsel made the offer to provide the statements by way of formal affidavits and the matter was not pursued.

Finally, there is the question of the interests of justice and prejudice. There is a public interest and a private interest in the finality of litigation and that is the reason for rules such as res judicata to which counsel for the Attorney General made reference. But subsection 56(4) of the Act is an appeal provision. As long as the matter may be appealed it is not final.

It was suggested by applicant’s counsel that to permit the Review Tribunal to receive evidence in this appeal would create a dangerous precedent. However, the Review Tribunal itself made the decision, on the information before it, to allow the additional evidence. The decision is a discretionary one. I do not see that it is one that sets a precedent.

In Cook v. Mounce, Griffiths J. referred to a judge’s difficulty in making a credibility decision based in part upon a transcript and in part upon new viva voce evidence. The Review Tribunal, in its decision, indicated a preference to allow each party to fully present its case, including the newly admitted evidence. But it acknowledged that it did not have authority to order a new hearing. Subsection 56(4) of the Act provides that the Review Tribunal is not to conduct an entire trial de novo but that it must base its decision on the record of the tribunal whose decision is being appealed, on submissions of interested parties and on additional evidence or testimony that, in the opinion of the Review Tribunal, is essential in the interest of justice. While a credibility determination based in part on a transcript and in part on viva voce evidence may well be a difficult one, it is the procedure required by the statute.

There is also the question of prejudice to the applicant. I think this has been answered by the procedure that the Review Tribunal has set down. The Review Tribunal has said that it would allow the evidence of two additional witnesses and that it would permit the presentation of rebuttal evidence, including the calling of new witnesses and the recalling of individuals who have already been called to give evidence. It seems to me that this is a complete answer to the question of prejudice.

I have been told that the Review Tribunal’s hearing is scheduled for December 5, 1994, and also that the additional evidence that is to be called on behalf of Lt.-Col. Lambie will not take long. It was suggested that it would not take more than one day. It does not appear that the opportunity to call additional evidence in this case will result in a lengthy or protracted proceeding.

For the above reasons, this application is dismissed.

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