Highlights of Noteworthy Decisions

Decision 2602 18 I2
L. Petrykowski
  • Evidence (admissibility)
  • Procedure (right to sue)

The Vice-Chair determined a number of preliminary matters in a right to sue application.

The defendant in a civil case submitted a Right to Sue Statement, which included an affidavit from the law clerk of the defendant's lawyer together with supporting documentation. The plaintiff submitted these materials should be inadmissible.
The Vice-Chair noted that the Tribunal practice direction on Right to Sue Applications requires an applicant to prepare a Right to Sue Statement in a prescribed form and that the process also requires production of documentary evidence to support the facts upon which the applicant intends to rely. The Right to Sue Statement of the defendant complied with the practice direction. Further, there was no identifiable basis warranting exclusion of the materials. The affidavit was prepared by a law clerk in the office of the law firm retained by the defendant. The law clerk is not the lawyer of record in the Tribunal proceedings and, accordingly, he cannot be considered as both counsel and witness. Further, the law clerk has not been introduced as an expert witness and is not considered to be an expert in the subject-matter of his affidavit. It remains within the purview of the Tribunal to hear and decide the merits of the application, including what weight, if any, should be accorded to the evidence of the law clerk.
One of the defendants in the civil case withdrew from the Tribunal proceedings. That defendant had filed materials. The plaintiff submitted that those materials should be excluded now that the defendant had withdrawn from the Tribunal proceedings. The Vice-Chair found no identifiable basis to exclude the materials. It is not uncommon for one or more parties to withdraw from right to sue proceedings at the Tribunal. In such circumstances, it is not the practice of the Tribunal to remove any application-related materials that were submitted by a party ceasing to participate in the Tribunal proceedings.