Clarise Jupiter v Petroleum Company of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Donna Prowell-Raphael,Lenore Harris |
| Judgment Date | 17 November 2022 |
| Docket Number | E.O.T. No. 0006 of 2017 |
| Court | Equal Opportunity Tribunal (Trinidad and Tobago) |
HH Donna Prowell-Raphael, CEOT.
Lay-assessor: Lenore Harris.
E.O.T. No. 0006 of 2017
EQUAL OPPORTUNITY TRIBUNAL
Ms. Abayomi T. Ajene for the Complainant.
Mrs. Deborah Peake SC, Ravi Heffe-Doon instructed by Ms. Marcelle A.
Ferdinand for the Respondent.
The overarching dispute in these proceedings is a claim by the complainant that she was victimised by the respondent for making a statement that may have connoted racial discrimination by the respondent.
The trial started on November 15, 2022. On January 26, 2021, the Tribunal made an Order extending the time for the filing of Witness Statements to May 20, 2021. Pursuant that Order, the complainant filed her Witness Statement on May 20, 2021. The respondent also filed the Witness Statement of Mr Alvin Stephenson (now deceased), on May 20, 2021. These were the only witnesses on whom the parties respectively intended to rely.
Mr Stephenson's Witness Statement comprised of a mix of evidence, from the records of the company and from his own knowledge. At paragraph 2 of the said Witness Statement Mr. Stephenson stated:
“2. I am able to make the statements herein based on my personal knowledge and experience in the Company and available Company records relevant to these proceedings, which as Head, Human Resource Services, Manager Industrial Relations, Manager Human Resource Services Exploration and Production and Senior Manager Human Resources were in my custody and control.”
Unfortunately, Mr. Stephenson passed away on June 7, 2022, before the start of the trial, leaving the respondent without a witness. Confronted with this dilemma, on November 14, 2022 (the day before the trial was due to begin) the respondent filed —
-
(i) a Hearsay Notice (‘Hearsay Notice’) seeking to put into evidence the Witness Statement of Mr Stephenson (the deceased's Witness Statement’) under the provisions of Part 30 of the CPR. If admitted under Part 30 1, the deceased's Witness Statement would not be subject to cross-examination.
-
(ii) a Witness Statement of Sandra Matthews-Noel (‘new Witness Statement’) by which she sought to confirm —
“…that the information and statements made in Mr Stephenson's Witness Statement, to the extent that same are based on the records of and documents of the Company which are either annexed to or referred to therein, are true and correct.”
Attorney for the complainant, Ms. Ajene, has objected to the admission of both the Hearsay Notice and the new Witness Statement.
Apart from the technical objections as to time/lateness of filing and form of the Hearsay Notice as is required by Part 30 2, Ms. Ajene relies on the case of Tucker Energy Services Ltd. v. Weatherhead Trinidad Ltd 3 in her submission that the deceased's Witness Statement cannot be put into evidence under Part 30. She further submitted that even if it is admitted into evidence that her client would be prejudiced by not being able to cross-examine Mr. Stephenson (deceased), and without cross-examination on the veracity of the evidence, little weight, if any, can be placed on it.
With respect to the new Witness Statement, Ms Ajene contends that it was filed on November 14, 2022, after the time for filing Witness Statements had elapsed. She stated that Mr Stephenson (deceased) died several months before the trial, and there was sufficient time for the respondent to have filed appropriate applications earlier.
In reliance on the case of Eric Potter v. Verdel Foxx & anor 4., Mrs Peake for the respondent has submitted that the Hearsay Notice can be admitted to tender the deceased's Witness Statement. She states that the cases of Tucker Energy Services Ltd. v. Weatherhead Trinidad Ltd and Eric Potter v. Verdel Foxx & anor are distinguishable because Tucker dealt with a person who was overseas while Potter dealt with a Witness who was dead. In her submission, Potter was akin to the present case in which the Witness is dead.
With respect to the new Witness Statement, Mrs Peake submits that the court has the jurisdiction to admit it, so as to do justice between the parties having regard to the exceptional circumstances and the over-riding principle. However, she has agreed that her main purpose in tendering the new Witness Statement is to put the agreed documents of the respondent in evidence.
I intend to treat with both objections of Ms Ajene together as they both relate to introducing evidence through the deceased's Witness Statement at the trial, albeit through different routes. In my view they are both linked, and it would be artificial to separate consideration of them.
The Tribunal has accepted some responsibility for the delay in commencing the trial because of the unavailability of its courtrooms and or any virtual capacity to hear matters for well over a year. Although the matter was fixed to continue since 2021, it has had to be adjourned on several occasions at the instance on the Tribunal. In the interim Mr Stephenson sadly passed on notwithstanding that his Witness Statement had been filed on time. The Tribunal is therefore prepared to consider giving both parties reasonable time and or opportunity to redress any prejudices caused by the Tribunal's default.
While Ms Ajene's objections as to the form of the Hearsay Notice or time/lateness of its filing may be in strict compliance with the Rules, Ms Ajene has not pointed to any prejudice, that cannot be cured, that would be done to the complainant if these documents were allowed in. However, her arguments with respect to prejudice caused by inability to cross-examine the deceased on his Witness Statement, if it is allowed in, cannot be shunted. This is especially so since parts of the deceased's Witness Statement go directly to the issues raised for determination by the Tribunal.
I do not accept the submission of Mrs Peake that the cases of Tucker and Potter are distinguishable because Tucker dealt with a Witness who was overseas, while Potter dealt with a Witness who was dead. Boodoosingh J. was clear in his judgment on the Tucker case that, in principle, Part 30 is not applicable to documents that have been filed as witness statements. He was of the view that Part 29 of the CPR is a special regime that governs the filing and use of witness statements to the exclusion of Part 30 of the CPR.
Having considered Parts 29 and 30 of the CPR, Boodoosingh J., stated:
“There is therefore a special regime to deal with witness statements separate and apart from the regime to deal with hearsay documents under Part...
To continue reading
Request your trial