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Fairness - Evidence - General. Sharpe v. CTS Canadian College
In Sharpe v. CTS Canadian College (Ont Div Ct, 2026) the Ontario Divisional Court allowed an employee's HRTO JR, this brought against the dismissal of their HRC "application for relief based on alleged disability-based discrimination ... because she had disclosed to them that she is living with bipolar disorder and had requested accommodations for that disability".
Here the court considers the effect of admitting "at the twelfth hour" additional evidence (a witness statement) without notice to the other party:[40] The Tribunal issued two rulings setting out the evidence that would be allowed in the hearing. It was clear that it would allow the parties to file only their original witness statements. However, for some reason, and at the twelfth hour, the adjudicator allowed CTS to file a second, more detailed and somewhat different statement by Mr. Carvalho. As I understand it (because there is no record or endorsement), it did so without advance notice, during the course of the hearing, and without offering any reasons for its decision. Absent those reasons, the Adjudicator’s ruling is not entitled to judicial deference: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 61.[4]
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[45] This witness statement was far more detailed than Mr. Carvalho’s first one. More to the point though, it offered a rationale for the termination which was lacking in the first witness statement: that Ms. Sharpe’s position (as well as the equivalent position in Sudbury) were not generating the revenues anticipated. Thus, Ms. Sharpe was terminated “solely on the basis of organizational objectives and efficiencies, once Mr. Carvalho determined that the positions had created no value for the organization.”
[46] Even the decision to allow the second statement of Mr. Carvalho to be placed into evidence, without offering the same right to Ms. Sharpe, and to do so in the midst of the hearing may not have been fatal had Ms. Sharpe’s counsel been afforded the opportunity to cross-examine Mr. Carvalho on any discrepancies between the two statements. But for reasons that do not appear on the record (as set out above, there is no transcript or written ruling), or in the Decision itself, Ms. Sharpe’s counsel was not allowed to cross-examine on this point.
[47] In light of the centrality of credibility to the determination of this case, the unjustified restriction on Ms. Sharpe’ statutory right to cross-examine Mr. Carvalho at an oral hearing, and the prejudice that the late filing of the second witness statement visited upon Ms. Sharpe, I can only find that her procedural right to a fair hearing was violated.
[48] As a result, the Decision cannot stand. . Watter v. McMaster University
In Watter v. McMaster University (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this against McMaster University Board of Governors deciding "that adequate cause existed to remove Dr. Watter from his faculty position ... ."
Here the court considered an evidentiary 'adverse inference' issue, addressed in a procedural fairness context:An adverse inference from the University’s failure to call S.L. as a witness
[71] The applicant submits that his hearing was procedurally unfair as the Hearing Committee failed to properly deal with his argument that an adverse inference should be drawn by the University’s failure to call S.L., who was a key witness. He submits that the Decision was confusing and circular in dismissing this argument.
[72] The Court of Appeal in Parris v. Laidley, 2012 ONCA 755, O.J. No. 5214 at para. 2 explained that:Drawing an adverse inference from a failure to produce evidence is discretionary. The inference should not be drawn unless it is warranted in all the circumstances. What is required is a case-specific inquiry into the circumstances including, but not only, whether there was a legitimate explanation for failing to call the witness, whether the witness was within the exclusive control of the party against whom the adverse inference is sought to be drawn, or equally available to both parties, and whether the witness has key evidence to provide or is the best person to provide the evidence in issue. [73] This approach to adverse inferences has continued to be applied by this court: see Warren v. Ontario (Labour Relations Board), 2013 ONSC 847, 305 O.A.C. 52 (Div. Ct.), at paras. 16, 23. . H.C. v. Children’s Aid Society of Toronto
In H.C. v. Children’s Aid Society of Toronto (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here against a CFSRB order limited to ordering the local CAS "to provide a letter explaining the investigation and why it was unable to disclose more information gathered in the investigation".
The court considered common law evidentiary administrative protections, here where the SPPA was specifically excluded from application:[61] The hearing was procedurally fair. H.C. participated in an electronic oral hearing and had the opportunity to present documentary evidence, give oral testimony, cross-examine witnesses and to make oral submissions. The evidence admitted and considered by the adjudicator was relevant and probative to the issues she had to decide. Although the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, does not apply to CFSRB, it has broad discretion under the common law to admit or exclude evidence unfettered by the strict rules of evidence: Lorne Sossin, Robert W. Macaulay & James L.H. Sprague, Practice and Procedure Before Administrative Tribunals, s. 22:3.
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[64] The CFSRB is empowered to ensure a fair but expeditious hearing: Walters v. Centurion Property Associate Inc., 2024 ONSC 7093 (Div. Ct.), at para. 27. The rulings were in keeping with the proper exercise of those powers. As an example, admitting the Investigator’s affidavit and leaving open the question of weight did not render the hearing procedurally unfair. It was clear she had material and probative evidence to give.
[65] The extent of the disclosure sought by H.C. was not necessary given the limited scope of remedies available to the CFSRB adjudicator. Her analysis regarding this was sound. Given the scope of remedies CFSRB could exercise on the facts of this case, the limiting of the issues did not render the hearing unfair. It was within the discretion of CFSRB to limit the hearing to the issues that were canvassed and ordered at the pre-hearing conference pursuant to the CFSRB’s authority under s. 50 of General Matters under the Authority of the Lieutenant Governor in Council, O. Reg. 155/18.
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