I read the decision. I hadn’t realized it was a representative proceeding, which explains the use of the “class” designation.

On another point, if the allegations in para. 111 of the decision are accurate, I don’t think the Complainants have any real cause to object to the BIA issuing a press release. As I suspected, the issues in the complaint have a political aspect and all parties are trying to make political points.

http://www.pivotlegal.org/pdfs/09-07-07-PivotvsDVBIA.PDF

I would ideally prefer to see beat cops doing the job, but I don’t think the police union nor city budgets have an appetite for that.

It seems we’ll have to agree to disagree.

If legal counsel take memos of evidence, those memos will be privileged. A witness statement taken by legal counsel will be privileged. However, if the statement is a simply a record of a complaint made by a witness kept by one of the organizations, it should be produced. It appears that no such documents, or even lists of complainants, exist.

I’m not sure what you mean by a member of the Class. AFAIK, this is a human rights complaint, not a class action.

In any event, I’m sure the process will continue and the parties will have their respective chances to advance evidence and argument.

I’m also not clear about your comment “if legal counsel is involved”. Laura Track of Pivot is counsel for the complainant(s). I’d also hazard a guess that the witnesses are members of the Class. But this is supposition – I’m not clear about the process in this kind of detail.

One last thing that folks might want to consider: the DVBIA already asked the Tribunal to dismiss the complaint, and their application was denied. The Tribunal’s decision makes reference at paragraph 79 to “studies and statistics” that have already been provided by the complainant. So unless I’m totally out to lunch – because I’ve hit the limit of my understanding of this process – it appears that Pivot has already provided the Tribunal with the documents it intends to rely on, and intends to have witnesses provide the remainder.

So I really don’t think that it’s fair to suggest that there isn’t an intention to proceed with a bona fide complaint.

And as my many posts to this thread have probably already tested the limits of everyone’s patience, I’ll bow out here.

I’m not certain how a list identifying or describing complaints which have been received would not fall within the category of “documents which they have or intend to rely upon to support the Complaint.” At the very least, it would be a document which they have.

As for a formal list of witnesses, it is not unusual for parties in legal proceedings, including administrative proceedings, to be required to exchange lists of witnesses in advance of the hearing. I’m not sure if that it the case in proceedings before the Human Rights tribunal.

As for not disclosing witness interview notes, in the absence of a claim for privilege, I’m not certain why witness interview notes would not be producible. Obviously, it’s different if legal counsel is involved and the documents are privileged.

As for the cynical politicking point, I do agree that disputes should not be “litigated” through press releases. However, my guess (and I stand to be corrected) is that the complaint itself was also marked by press releases and public pronouncements by the complainants.

It sounds like you’re suggesting that Pivot disclose their witness interview notes. That’s not how these things work.

As for the cynical politicking – it’s absolutely cynical for the BIA to express outrage and dismay that Pivot didn’t produce documents that couldn’t reasonably be expected to exist in advance of a proceeding that both parties knew would rely largely on witness testimony. The BIA is playing silly buggers here.

“Witness testimony *is* evidence. ”

Absolutely. I agree that, if there are no documented complaints or written witness statements, the evidence will based entirely on witness testimony.

But the lack of written documentation isn’t irrelevant or, as you suggest, cynical politicking. At the very least, one would expect there to be some record or compilation of complaints or, at the very least, a list of people who have complained.

How will the complainant be able to find or call witnesses without at least a list of people who have complained?

“Couldn’t we say somewhat the same thing about
the BC Rail investigation? Yet I doubt many of us
would doubt it’s a good thing that we are looking
into the matter.”

Fair enough, but, unless I’m missing the boat entirely, the process before the tribunal is not an investigation, it’s a Complaint. I don’t have any recent experience with the human rights process, but typically the entity making the complaint must advance evidence at a hearing in order to establish the facts necessary to substantiate the allegations. It’s not a case of putting the matter out there and letting the tribunal investigate; they are obliged to prepare and advance evidence at a hearing.

If they cannot do that, they shouldn’t be making the complaint in the first place.

(While, I should add, is not to say that such entities should not raise their concerns, if such concerns exist, only that the complaint process might not be the appropriate way to do it.)

Look, consider this scenario. A homeless guy sleeping in an alley is approached by a DA. The DA tells him to move, or he’s calling the cops. The homeless guy moves. Or this one: a person is asking for spare change on public property. A DA comes along and tells her to move off the block. After disagreement, the DA threatens to call the police. The woman moves on.

Now: what documentary evidence would you expect them to produce in support of their complaints? They won’t have any.

The only documentary evidence before the Tribunal will be the BIA’s. And if I were a betting woman I’d take wagers that they knew that perfectly well in advance of the deadline. This is cynical politicking. Nothing more, nothing less.