Kelsh v. Canadian Pacific Railway

Kelsh v. Canadian Pacific Railway

The Respondent did not comply with Rule 6(3) (failed to file the expert report with the Tribunal and include the expert’s qualifications and only sought leave late), which prejudiced the Complainant by depriving him of a reasonable opportunity to obtain responding expert evidence and rebuttal witnesses; that prejudice is curable by procedural remedies (filing the expert’s qualifications and permitting an adjournment or other terms to allow the Complainant to respond); final determination on qualification and admissibility of the expert is deferred to the resumed May hearing where the Tribunal will apply Rule 6 and Rule 9(3)(e).

Citation
2016 CHRT 9
Parties
Complainant: Ken Kelsh; Commission: Canadian Human Rights Commission; Respondent: Canadian Pacific Railway
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
25 April 2016
Procedural Posture
Canadian Human Rights Act Complaint (disability, Employment) / Interim Ruling on Respondent’s Motion to Call Expert; Hearing Adjournment/qualification Scheduled for Resumed May Hearing
Outcome
Respondent’s non‑compliance with Rule 6(3) found; motion to call expert not finally granted or denied — Tribunal ordered procedural remedies and reserved final determination on qualification and admissibility to resumed hearing.
Legal Topics
Failure to Accommodate, Retaliation, Systemic Discrimination, Expert Evidence, Disclosure Obligations, Procedural Fairness, Adjournment Remedies
Source Language
English
Human Rights Law Administrative Law Employment Law Disability Law Failure to Accommodate Retaliation Systemic Discrimination Expert Evidence +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 6 Authorities cited 9 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Ken Kelsh

Complainant

Canadian Human Rights Commission

Commission

Canadian Pacific Railway

Respondent

Procedural Posture

Canadian Human Rights Act Complaint (disability, Employment) / Interim Ruling on Respondent’s Motion to Call Expert; Hearing Adjournment/qualification Scheduled for Resumed May Hearing

Legal Issues

  1. 1 Whether the Respondent complied with Rule 6(3) regarding disclosure and filing of expert reports
  2. 2 Whether non‑compliance with Rule 6(3) caused prejudice to the Complainant
  3. 3 Whether any prejudice is curable and what remedial terms (adjournment, filing requirements) are appropriate

Ratio Decidendi

The Respondent did not comply with Rule 6(3) (failed to file the expert report with the Tribunal and include the expert’s qualifications and only sought leave late), which prejudiced the Complainant by depriving him of a reasonable opportunity to obtain responding expert evidence and rebuttal witnesses; that prejudice is curable by procedural remedies (filing the expert’s qualifications and permitting an adjournment or other terms to allow the Complainant to respond); final determination on qualification and admissibility of the expert is deferred to the resumed May hearing where the Tribunal will apply Rule 6 and Rule 9(3)(e).

Court Disposition

Respondent’s non‑compliance with Rule 6(3) found; motion to call expert not finally granted or denied — Tribunal ordered procedural remedies and reserved final determination on qualification and admissibility to resumed hearing.

Orders

  • Respondent must file a statement of Dr. Marcus Feak’s qualifications with the parties and the Tribunal by April 29, 2016 in compliance with Rule 6(3)(a)(ii).
  • At the May 2, 2016 hearing the Respondent may proffer Dr. Feak for qualification as an expert; the Complainant may cross‑examine and make submissions on qualification and admissibility.