Employment & Labour Law

Human Rights Tribunal Addresses Objections to Proposed Witnesses in Discrimination Case

March 28, 2024

photo of empty work desk representing the absence of an employee at work who is suffering from a disability

Discrimination, in its myriad forms, continues to manifest in workplaces, educational institutions, housing markets, and public services, among other domains across the country. Whether rooted in race, gender, sexual orientation, disability, or other protected characteristics, discriminatory practices not only harm individuals but also undermine the fundamental principles of equality and dignity. Alberta, like many other jurisdictions, has established mechanisms to address such injustices through its Human Rights Tribunal, which plays a pivotal role in adjudicating complaints related to discrimination, providing a legal framework to address grievances, offering a platform for justice and accountability.

This blog will explore claims of discrimination in the workplace in light of a recent decision by the Human Rights Tribunal of Alberta (the “Tribunal”). This decision not only illustrates how claims of discrimination are dealt with, but also addresses issues relating to evidence and witnesses at a Tribunal hearing.

Employer Codes Employee’s Absences as Vacation Days Instead of Sick Days

In the matter of Rajwani v Workers’ Compensation Board, 2024 AHRC 34, the complainant (the “employee”) was employed by the respondent Worker’s Compensation Board. Issues arose when the employee missed work, which he claimed was a result of his mental disability.

When his employer coded his absences as vacation days rather than sick days, he subsequently filed two complaints with the Alberta Human Rights Commission alleging discrimination in employment on the ground of mental disability, contrary to section 7 of the Alberta Human Rights Act.

Parties Attend Case Management Conference

Before the complaints could be heard, the Tribunal held a Case Management Conference, during which the parties presented their lists of witnesses who would testify in support of their case. A Case Management Conference is an informal discussion between the decision maker and the parties to discuss potential issues involved in a particular court case. The ultimate goal of a Case Management Conference is to identify and resolve, or provide a timeline for, potential sticking-points in advance of a hearing, so that on the day of the hearing, everything can proceed without further delay. Case Management Conferences can be an effective tool to streamline processes and to reduce complication in legal matters, and in some cases, they can be used as a forum to discuss a resolution of the claims without the need for a full hearing or trial.

In this case, both the complainant and the respondent objected to some of the witnesses that the other planned to call at the Hearing. In response, they were asked to file formal objections so that a decision could be made on whether these witnesses should be allowed to testify at the hearing. This decision focuses on that question only, not the underlying complaint.

When Might A Court Decide Not To Hear Testimony From A Particular Witness?

Like the courts, the Human Rights Tribunal has the power to decide whether to hear testimony from a given witness, however, their decision must be based on materiality, relevance, and the probative value of the proposed evidence.

What is Materiality?

Materiality involves determining whether the witness has direct evidence from their personal experience that will provide useful information as evidence about the case. It also means that such evidence relates to the time and place where the factual basis of the claim is alleged to have taken place.

What is Relevance?

Relevance means that the evidence the witness will provide proves, or disproves, a key fact or element of the legal test that one of the parties is trying to establish.

What is Probative Value?

In essence, probative value of evidence refers to the significance (or weight) a particular piece of evidence will hold in establishing a fact. To determine probative value, the judge or decision maker must evaluate how useful a potential witness or document will be to helping them reach a decision.

In many cases, the probative value of the evidence must be balanced against its prejudicial effect. In other words, if the evidence in question is not especially helpful, and allowing it to be admitted would be unduly harmful to the other side, it could be disallowed.

Employee Objects to Three of Employer’s Proposed Witnesses

In this case, the employee objected to three of the respondent’s proposed witnesses on the basis that their evidence was not relevant to the human rights issues, lacked probative value, or that the evidence was otherwise inadmissible in character or similar fact evidence. The employee also claimed that one of the witnesses was only being brought “to attempt to speculate that the Complaints were brought in bad faith.”

By contrast, the employer claimed that the evidence of these witnesses was directly relevant and would be given to establish key facts related to the employee’s absences, which were at the heart of the complaint. The employer also denied that there would be any testimony to allege bad faith.

Tribunal Dismisses Employee’s Objections; Allows Employer’s Witnesses

When the matter came before the Alberta Human Rights Tribunal, it was noted that “facts relating to the complainant’s absences from work, including facts relating to the coding or classification of vacation days and sick days by the respondent are relevant to the issue of discrimination.” The Tribunal did note that some of the employer’s proposed witnesses were the employee’s colleagues and it was clear that they would have direct knowledge of the circumstances of these absences and how they were coded.

The Tribunal also determined that it would be premature to make a ruling on the content of the testimony before the witnesses could be heard, on the basis that it would seek to establish that the complaints were made in bad faith. As such, the Tribunal allowed the witnesses to provide their testimony.

Employer Challenges Employee’s Proposed Witnesses

The employee wished to call six witnesses in support of their claim, however, the employer argued that two of the witnesses’ testimony would be “duplicative”, or repetitive without adding anything of substance. In the interests of efficiency, the employer argued that only one should be heard.

The employer also argued that the CEO should not be called as a witness as “he was not directly involved in the events at issue in the Complaints and has no material or relevant evidence to provide at the hearing.”

Tribunal Allows Both of Employee’s Colleagues to Testify

The Tribunal acknowledged that although two of the witnesses had a common element to their testimony (which related to the employee’s job position and their experience with how he was treated), there were some issues for which only one of them could testify. In other words, although there was some overlap of subject matter to address, that did not necessarily mean that both witnesses would say the same thing. As such, their testimony was allowed. As for the CEO, the Tribunal accepted that, because he was not directly involved with the employee and had no personal experience that would provide useful testimony, he would not be compelled to testify.

This decision shows how important the rules of evidence are in any case, and provides insight into why courts may decide to exclude certain witnesses from testifying. In a contested civil litigation case, many of the parties’ court appearances leading up to the trial, if necessary, are used to address technical legal arguments and issues, such as those raised in this instance.

DBB Law Provides Employers and Employees with Practical Advice and Representation to Employees Regarding Discrimination Claims

The seasoned team of labour and employment lawyers at DBB Law provide comprehensive and effective legal services to unionized and non-unionized employers and employees at various stages of the working relationship. We help employees navigate the wrongful termination claims process and represent them in matters before the Human Rights Tribunal. We also help employers develop strategies to proactively mitigate issues relating to harassment and discrimination.

From our office in Calgary, DBB law is proud to represent clients in a variety of employment-related matters throughout Alberta. To schedule a confidential consultation with one of our team members, please contact us online or by phone at 403-265-7777.

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