HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission Commission
-and-
Brandy Johnson Complainant
-and-
Peter Ekonomidis Respondent
INTERIM DECISION
Adjudicator: Mark J. Sandler
Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca
APPEARANCES
Ontario Human Rights Commission ) Joanne Rosen, Counsel
Brandy Johnson, Complainant ) Michelle Mulgrave, Counsel
Peter Ekonomidis, Respondent ) Thomas Stefanik, Counsel
INTRODUCTION
1This is a preliminary motion brought by the Ontario Human Rights Commission (“Commission”), supported by the complainant, for an Order allowing the evidence of Rachel Furey to be heard by way of telephone conference call. It is opposed by the respondent. Submissions were heard on December 13, 2004.
Background
2On February 7, 2002, the complainant, Brandy Johnson, filed a complaint with the Commission alleging discrimination in the occupancy of accommodation on the basis of sex, family status and receipt of public assistance.
3It is anticipated that there will be evidence that the complainant contacted the Centre for Equality Rights in Accommodation (“CERA”) and spoke with Rachel Furey, who was then a law school student and volunteer with CERA. It is alleged that Ms Furey spoke with the respondent thereafter. The Commission relies upon statements that the respondent allegedly made to Ms Furey in furtherance of its case. I need not elaborate upon those alleged statements at this stage of the proceedings. As I understand it, the respondent disputes the accuracy of those statements and, in any event, challenges the admissibility of Ms Furey’s evidence. Although the argument has not been fully developed at this point, the respondent’s position is that, on the face of Ms Furey’s witness statement, it is clear that Ms Furey misrepresented her position as an advocate for the complainant, and otherwise dealt inappropriately with the unrepresented respondent. In the circumstances, the respondent submits that it would constitute an abuse of process to admit Ms Furey’s communications with the respondent into evidence. It is also submitted that Ms Furey “entrapped” the respondent.
4It is unnecessary to elaborate further upon the respondent’s arguments in this regard, except to say that the materials presently before the Tribunal, including Ms Furey’s witness statement, do not constitute a sufficient evidentiary record to permit me to determine whether the respondent’s submissions as to admissibility have merit. Nor did the respondent’s written submissions opposing this motion plead the inadmissibility of Ms Furey’s evidence as a basis for denying the motion. The Commission and the complainant have had no opportunity to lead evidence or present legal argument on the admissibility of Ms Furey’s evidence. In any event, I am satisfied that the admissibility of her evidence can only be determined after the circumstances surrounding her communications with the respondent are fully developed through the hearing of evidence at a voir dire held for that purpose.
Evidence on the Motion
5There is evidence before me that Ms Furey now resides in Iqaluit, Nunavut. She is employed as a Crown counsel in the Nunavut Regional Office of the Department of Justice. As one of 13 Crown counsel in that office, she has a demanding caseload, which requires her to travel frequently to and from Nunavut’s 26 communities. Her affidavit filed in support of the motion reflects that it would be difficult and disruptive to her work schedule if she were required to travel to Toronto1 to give viva voce testimony.
6In this regard, it is noted that the limited availability of flights between Nunavut and Toronto would require her to attend in Toronto (or in Hamilton, should the hearing be conducted there) for at least three days. She would have to utilize vacation days to take this time away from the office. As well, she indicates that the unpredictable and harsh weather conditions in Nunavut frequently cause her to be stranded in various communities, meaning that travel times can be extended by one or more days until weather conditions improve to permit air travel to or from Nunavut. (The evidence was unclear whether these unpredictable and harsh weather conditions extend into the spring or early summer, when this hearing is likely to be scheduled. Accordingly, no reliance is placed upon this aspect of the evidence in evaluating this motion.)
7The evidence also establishes that the Commission will likely incur expenses in excess of $2,000 to enable Ms Furey to give viva voce evidence. This represents the approximate economy return air fare of $1,665.00 and at least two nights of hotel accommodation costing approximately $520.
8The respondent filed publicly accessible information that the Commission has substantial financial resources. This was said to advance its argument that the costs associated with bringing Ms Furey to this hearing to give viva voce evidence are relatively insignificant to the Commission.
Relevant Statutory Provisions and Rules of Practice
9Rule 6 of the Tribunal’s Rules of Practice reads:
Any part of the proceedings may be conducted in person, by way of a written hearing, or electronically by video or telephone conference at the discretion of the panel and in accordance with the Statutory Powers Procedure Act.
10The relevant portions of the Statutory Powers Procedure Act (the “SPPA”) read:
Section 1(1):
“electronic hearing” means any hearing held by conference telephone or some other form of electronic technology allowing persons to hear one another;
“hearing” means a hearing in any proceeding;
“proceeding” means a proceeding to which this Act applies;
Section 5.2:
(1) A tribunal may hold an electronic hearing in a proceeding, in accordance with its rules made under section 25.1
(2) The tribunal shall not hold an electronic hearing if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice.
(3) Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters.
(4) In an electronic hearing, all the parties and the members of the tribunal participating in the hearing must be able to hear one another and any witnesses throughout the hearing.
11There appeared to be no dispute between the parties that the Tribunal has the discretion to permit the evidence of one or more witnesses at a hearing to be taken electronically by video or telephone conference. Indeed, Rule 6 of the Tribunal’s Rules of Practice contemplates precisely that. The real dispute was whether that discretion should be exercised in favour of the Commission here.
12As noted above, Rule 6 provides that part of the proceedings may be conducted electronically in accordance with the Statutory Powers Procedure Act (“SPPA”).
13This might be interpreted to mean only that, where an electronic hearing is to be conducted, it shall be conducted in accordance with the SPPA. So, for example, where it has been determined that an electronic hearing will be conducted, all the parties and the members of the Tribunal participating in the hearing must be able to hear one another and any witnesses throughout the hearing in accordance with subsection 5.2(4) of the SPPA.
14Rule 6 might be interpreted more expansively to also mean that the discretion whether to hold an electronic hearing shall be exercised in accordance with the test articulated in the SPPA. This would mean that Subsection 5.2(2) articulates the applicable test that governs the exercise of discretion by this Tribunal. It is unnecessary to debate the precise meaning of Rule 6 since, in my view, the test articulated in subsection 5.2(2) of the SPPA strikes an appropriate balance between the rights and interests of the various parties, and should inform the exercise of my discretion in any event.
Submissions
15Counsel for the Commission, supported by counsel for the complainant, submitted the following:
(a) Ms Furey’s credibility is not seriously in issue.
(b) It would be seriously disruptive and difficult for Ms Furey to testify in person.
(c) There are significant financial costs associated with having Ms Furey testify in person.
(d) The respondent has failed to demonstrate the likelihood of significant prejudice.
(e) Administrative rules, as captured by the Rules of Practice and the SPPA are more flexible than the rules of admissibility that govern civil (or criminal) trials. This is reflected, inter alia, in the different test that governs the admissibility of electronic evidence at a civil trial.
(f) The jurisprudence supports the exercise of discretion to permit electronic evidence in human rights cases. The parties were unable to locate a single case in which the Tribunal declined to exercise its discretion in favour of a similar motion.
16The Commission originally contemplated that it would seek to have Ms Furey’s examination conducted by video conference. However, Ms Rosen advised me that she has learned that technical difficulties sometimes accompany video conferencing. In the circumstances, the Commission is seeking to have Ms Furey’s examination conducted by telephone conference only. However, if so ordered, the Commission is prepared to make best efforts to arrange for video conferencing.
17Counsel for the respondent submitted that the motion should be dismissed for the following reasons:
(a) Ms Furey’s evidence is inadmissible, for the reasons earlier outlined;
(b) Her credibility and reliability are very much in issue;
(c) Telephone conferencing fails to permit the Tribunal to observe the demeanour of Ms Furey, and would make it correspondingly more difficult to evaluate her credibility and reliability;
(d) As an advocate involved in this matter, Ms Furey is differently situated than uninvolved witnesses whose evidence might be sought to be taken electronically;
(e) The mere inconvenience of Ms Furey should not trump the respondent’s rights; nor should the financial costs associated with having Ms Furey testify in person, particularly given the financial resources of the Commission; and
(f) An insufficient need has been demonstrated to even justify video conferencing. In this regard, reliance is placed upon Pack All Manufacturing Inc. v. Triad Plastics Inc., 2001 CanLII 765 (TCC), [2001] O.J. No. 5882 (Sup. Ct.).
The Jurisprudence
18The Commission’s position finds some support in the jurisprudence provided to me.
19In Moffatt v. Kinark Child and Family Services [1996] O.H.R.B.I.D. No. 36, the then Board considered whether one of the Commission’s witnesses, residing in Germany, should be permitted to testify by speaker telephone. The witness was reluctant to travel to Toronto to testify, in part because she had a very young child. The Commission asked the Board to consider the lost time, expense and inconvenience to the witness, as well as the cost to the Commission of bringing the witness to Toronto in times of fiscal restraint. The respondents raised a number of objections to the motion. Of most importance, it was submitted that the respondents would be prejudiced if the evidence of the witness was taken electronically. Counsel noted that credibility was a significant issue with respect to the witness, and that three witnesses would be called to refute her evidence. Practical and technical difficulties were also raised that, arguably, would have undermined the respondents’ ability to conduct a full cross-examination. Having found that Rule 40 of the Board of Inquiry Interim Rules of Practice (less specific than the present Rule 6) constituted sufficient authority to permit evidence to be received electronically, the Board held as follows (paras.18-19):
The final issue with respect to this motion is the question of prejudice. I acknowledge that there are particular difficulties associated with the receiving of evidence by telephone, and that several potential problems have been identified in the submissions of respondent counsel. In my view, however, the interests of all the parties may be affected detrimentally by the use of the telephone for this witness. I recognize that there is a danger that the effectiveness of cross-examination may be affected, but this is also true of examination-in-chief.
The respondents have not met the test of establishing “significant prejudice.” The inconvenience to the witness, and the costs of attendance in this particular case, are of sufficient weight to justify an order allowing her evidence to be taken by speaker telephone. I note that the weight to be attached to her evidence may be affected by her absence in person, and that this issue can be addressed in final submissions. In order to minimize the difficulties which could be associated with the use of electronic technology, I ask that all counsel confer on the process to be followed in arranging for this witness to testify, and that the Deputy Registrar be consulted. If necessary, a conference call can be scheduled to allow me to consider whether specific directions are necessary in relation to the process to be followed. I expect the Commission to take responsibility for ensuring: that the appropriate technology is in place; that all parties have copies in advance of any notes upon which the witness may rely; that the witness has unmarked copies of any documentary evidence to which she will be referred.
20In Arias v. Desai (No.1) (2002), C.H.R.R. Doc. 02-178 (Ont. Bd. Inq.), the then Board allowed the Commission to call the evidence of one named witness by conference call during the hearing, as she worked and resided in British Columbia. The decision does not say whether this order was opposed. The terms of the order stated that the witness be permitted to provide evidence by way of conference call during the hearing, on the following conditions:
(a) any exhibits to be relied upon or put into evidence by her must be sent to her prior to the hearing;
(b) she may have her own legal counsel with her during her testimony, but no one else;
(c) she is not permitted to have any notes with her during the call, other than the intended exhibits; and
(d) counsel for the Commission or the respondents may call her prior to the hearing to interview her since she is a witness, but she is not to have contact with anyone else.
21In McLeod v. Bronzart Casting Ltd. (1997), 1997 CanLII 24843 (AB HRC), 29 C.H.R.R. D/173 (Alta. H.R.P.), the Panel permitted the complainant to testify by long distance conference call. The complainant resided in Montreal at the time. There is no discussion of the basis for the order, or whether it was opposed. It does appear that the complainant’s credibility was, to some extent, in issue.
22In Madore v. Richard (2004), C.H.R.R. Doc. O4-234 (B.C.H.R.T.), the Tribunal permitted one of the respondent’s witnesses to testify by conference call. The witness suffered from panic attacks in stressful situations, seriously impacting upon his working life. There is no indication that the witness’ mode of testifying was in dispute, or that his credibility or, for that matter, the credibility generally of the witnesses was a central issue.
23Although the jurisprudence relied upon by the Commission reinforces the existence of a discretion to permit evidence to be taken electronically, it provides less guidance – not surprisingly – on how the discretion should be exercised in this case. I note in particular that although Rule 6 of the Tribunal’s Rules of Practice now specifically refers to both video and telephone conferencing, none of the above cases address or consider this distinction, or how the availability of video conferencing might impact upon the orders made.
24The respondent cited one case in support of its position resisting this motion.
25In Pack All Manufacturing Inc. v. Triad Plastics Inc., supra, the plaintiff sought an order under Rule 1.08(3) of the Rules of Civil Procedure authorizing the presentation of the evidence of one witness at the forthcoming civil trial by live video conference. The reasons for seeking to take the witness’ evidence by video conference were said to be the convenience of the witness, who worked and resided in Virginia, and to avoid incurring travel costs of over $2,000.
26Rutherford J. reflected that the taking of evidence by video conferencing can be effective and efficient and can reduce expenses and convenience witnesses. In his experience, a trial judge can see, hear and evaluate a witness’ testimony very well, assuming the video conferencing arrangements are good. He also noted (para. 6):
Seeing the witness, full face on in colour and live in a conference facility is arguably as good or better that seeing the same witness obliquely from the side as in the case in our traditional courtrooms here in the Ottawa Court House. The demeanour of the witness can be observed, although perhaps not the full body, but then, sitting in a witness box is not significantly better in this regard. Indeed, I often wonder whether too much isn’t made of the possible ability to assess the credibility of a witness from the way a witness appears while giving evidence. Doubtless there are “body language” clues which, if properly interpreted, may add to the totality of one’s human judgment as to the credibility of an account given by a witness. The danger lies in misinterpreting such “body language,” taking nervousness for uncertainty or insincerity, for example, or shyness and hesitation for doubt. An apparent boldness or assertiveness may be mistaken for candour and knowledge while it may merely be a developed technique designed for persuasion. Much more important is how the substance of a witness’ evidence coincides logically, or naturally, with what appears beyond dispute, either from proven facts or deduced likelihood. I am not at all certain that much weight can or should be placed on the advantage a trier of fact will derive from having a witness live and in person in the witness box as opposed to on a good quality, decent sized colour monitor in a video-conference. While perhaps a presumption of some benefit goes to the live, in person appearance, it is arguable that some witnesses may perform more capably and feel under less pressure in a local video-conference with fewer strangers present and no journeying to be done.
27Ultimately, he concluded as follows (para.11):
While there is much to be said for using the modern technology available and taking evidence by video-conference, it is not a manner of taking evidence available to parties as matter of right. Unless consented to by the opposite party, the Court must balance the relevant factors and determine whether the advantages of using video-conferencing outweigh the possible prejudice that might arise. In this case the balancing of interests is difficult. I’d say it is a close call. Inclined as I am to side with efficiency and the saving of time and cost, I am not persuaded by the plaintiff’s application that there is enough to be gained to overcome the conventional rule that evidence be given by a witness, in person, in court, and the contention by counsel for the defendant that cross-examination of this important witness whose credibility is important to the trial may be rendered less effective. Here, since the defendant has consented to video-conference evidence for certain other witnesses, the additional expense is limited to only one witness. Perhaps most importantly, there is no evidence that the witness in question is unable or unwilling for any reason to come to Ottawa and testify of her own volition, assuming all her expenses are paid. Her evidence is important and the cost of bringing her is not all that great in relation to the amount of money at issue in the trial, which I am advised is somewhere in the range of $80,000 to $105,000, including claims by both the defendant and the plaintiff.
28In my respectful view, this decision is of limited assistance. The Rules of Civil Procedure direct the Court to consider, inter alia, “the balance of convenience between the party wishing the telephone or video conference and the party or parties opposing.” The Rules that govern this human rights hearing invite a more flexible approach to the reception of evidence in a form that is unlikely to cause significant prejudice to the opposing party. As well, there was no evidence before Rutherford J. that the witness was unable or even unwilling for any reason to come to Canada. Further, the costs associated with her viva voce evidence (while similar to the potential costs in the case at bar) were not all that great in relation to the substantial amount of money at stake in the trial.
29I respectfully agree with Rutherford J. that video conferencing, if technologically sound, is likely to provide a good opportunity for the trier of fact to observe the witness. Although I recognize, as did Rutherford J., that too much can be made of the importance of observing a witness in assessing credibility, it is undoubtedly true that audio conferencing alone does deprive the trier of fact and the parties of some opportunity to observe a witness while testifying.
30The distinction between video and audio evidence is articulated, interestingly enough, in the Criminal Code of Canada R.S.C. 1985, c. C-46 as amended. Sections 714.1 and 714.3 read as follows:
VIDEO LINKS, ETC. – WITNESS IN CANADA.
714.1 A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances, including
a) the location and personal circumstances of the witness;
b) the costs that would be incurred if the witness had to be physically present; and
c) the nature of the witness’ anticipated evidence.
AUDIO EVIDENCE – WITNESS IN CANADA.
714.3 The court may order that a witness in Canada give evidence by means of technology that permits the parties and the court to hear and examine the witness elsewhere in Canada, if the court is of the opinion that it would be appropriate considering all the circumstances, including
a) the location and personal circumstances of the witness;
b) the costs that would be incurred if the witness had to be physically present;
c) the nature of the witness’ anticipated evidence; and
d) any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.
31Of course, any consideration of Criminal Code provisions in the context of a human rights hearing is necessarily limited. However, the Criminal Code provisions reinforce my own view that there is a significant distinction between video and audio conferencing. It is difficult to see how, in the ordinary case, evidence taken by video conferencing (assuming that it is properly functioning) is likely to prejudice any of the parties. The technology permits all parties, including the trier of fact, to fully observe the witness while testifying. This not only facilitates the assessment of credibility, but the conduct of the examinations of the witness. It is therefore not surprising that the Criminal Code specifically directs the court to consider, when audio evidence is proposed, whether there is any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them. Where video evidence is proposed, there is no specific direction to consider potential prejudice to the parties. In my view, it is recognized that potential prejudice figures more prominently in a situation where audio evidence only is being considered.
32The Criminal Code also assists in articulating, with appropriate modifications, some of the considerations that should inform the exercise of discretion by this Tribunal under the Rules of Practice and the SPPA. These include:
a) the location and personal circumstances of the witness;
b) the costs that would be incurred if the witness had to be physically present;
c) the nature of the witness’ anticipated evidence, including whether the credibility or reliability of the witness is in issue;
e) the reasonable practicality of video or audio technology, and the costs associated with taking the evidence of a witness electronically. (Generally, it can be assumed that the costs associated with audio conferencing are minimal);
f) the likelihood of any significant prejudice to the parties, particularly when it is proposed that the evidence be taken by telephone conferencing where the witness would not be seen by the parties or the Tribunal; and
g) Prejudice could also arise from demonstrable practical difficulties which could undermine the ability to conduct full examinations and cross-examinations. For example, where the witness is expected to be taken through voluminous documentation, evidence taken electronically may be more problematic.
Decision
33As earlier indicated, there is an inadequate evidentiary record upon which to determine whether Ms Furey’s evidence is admissible. Indeed, I will have to hear her evidence, together with any other relevant evidence, in a voir dire to decide whether, and to what extent, her evidence is admissible. For the purposes of this motion, I am satisfied that, apart from the concerns raised by the respondent about its admissibility, Ms Furey’s anticipated evidence of her communication with the respondent would be relevant to the issues before the Tribunal.
34There are compelling reasons why Ms Furey’s evidence should be taken electronically. She resides in Nunavut. It would be difficult and somewhat disruptive for her to travel to Southern Ontario to testify viva voce. There are significant financial costs associated with having Ms Furey testify in person. (In that regard, the Commission’s overall budget says little about the expenditure of public funds in individual cases.) Evidence can be taken electronically here under conditions that permit the fullest scope of examination and cross-examination. This case does not involve voluminous documentation. The most significant indicia of credibility and reliability – namely the internal consistency of the evidence and its relationship to other evidence can be fully addressed and evaluated without seeing the witness. Indeed, it is now well recognized in the jurisprudence that the “demeanour” of a witness is often an inadequate basis upon which the trier of fact should assess credibility or reliability. Over-reliance upon the purported demeanour of a witness to explain why that witness’ evidence was accepted or rejected may even constitute reversible error: See, for example, R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont.C.A.). Finally, the trier of fact is entitled to evaluate whether his or her inability to observe the witness may, in limited circumstances, prevent the trier of fact from relying upon that witness. That is arguably the price that the proponent of that witness’ evidence may pay by seeking to tender the witness electronically.
35That being said, Ms Furey’s credibility has been placed in issue by the respondent. It is expected that both its weight and admissibility will be challenged, and that the assessment of credibility will figure prominently in that regard. Notwithstanding my earlier comments about the limitations upon assessing credibility based on personal demeanour, the jurisprudence does recognize that triers of fact are entitled to take their observations of a witness’ demeanour while testifying into account in evaluating credibility and reliability.
36On the totality of the circumstances, I am satisfied that the respondent would not be significantly prejudiced if Ms Furey’s evidence were taken electronically, whether by video or telephone conferencing. However, it is my preference that, if reasonably practicable, her evidence be taken by way of video conferencing. Ms Rosen candidly acknowledged that no inquiries had been made as to the practicability of taking Ms Furey’s evidence by way of video conferencing. Ms Rosen’s information about prior difficulties with video conferencing was unrelated to Nunavut.
37Accordingly, the following Order will be made:
Ms Furey will be permitted to provide evidence electronically during the hearing, on the following conditions:
a) If reasonably practicable, her evidence will be taken by way of video conferencing. The Commission shall make best efforts, at its own expense, to facilitate the taking of evidence by video conferencing. I ask that all counsel confer on the logistics in arranging for the witness to testify in accordance with this Order, and that the Registrar be consulted;
b) Should the Commission determine that video conferencing is not reasonably practicable, it shall file an affidavit with the Tribunal before January 21, 2005, setting out why video conferencing is not reasonably practicable. The Tribunal reserves the right, after hearing from the parties and considering any further evidence, to make such further Order as it considers fit, depending upon the nature of this affidavit evidence;
c) The Commission and the complainant, through counsel, shall ascertain as soon as practicable whether Ms Furey is in possession of any relevant documents (not previously disclosed to the respondent). If so, subject to any questions of privilege or confidentiality, such documents shall be disclosed to the respondent before January 21, 2005;
d) Any documents that might be shown to, or used by, Ms Furey during her testimony must be provided to her prior to the commencement of the hearing. At the respondent’s option, any documents that might be shown to Ms Furey by counsel for the respondent can be provided to Ms Furey in a sealed envelope, not to be opened by Ms Furey until so instructed. These documents must otherwise have been disclosed to the other parties by the respondent. However, this process permits the respondent to cross-examine Ms Furey without disclosing to her in advance which documents he wishes to rely upon;
e) Ms Furey may have her own counsel, if she so chooses, with her during her testimony, but no one else shall be present, other than anyone providing technical assistance to enable her evidence to be taken electronically;2
f) Ms Furey will not be permitted to have any notes with her during her testimony if those notes have not been disclosed in advance to the parties. Any issue as to what she can refer to in the course of her testimony can otherwise be addressed during the testimony itself; and
g) Once the hearing commences, Ms Furey is bound by the same rules that govern other witnesses, such as any order excluding witnesses.
Miscellaneous Matters
38During the hearing of the above motion, the parties brought several additional issues to my attention.
39The respondent has been provided, by way of disclosure, with a document entitled “CERA Intake and Summary: Case Management Part I.” I am advised that significant portions of the document have been deleted or blacked out. Ms Mulgrave, counsel for the complainant, advises me that these deletions represent communications between the complainant and Ms Furey over which privilege may be asserted.
40Ms Mulgrave has agreed to ascertain whether the complainant wishes to continue to assert any privilege over the said portions of the document. She will also seek instructions as to whether any objection is taken to the Tribunal receiving and reviewing the entire document in order to evaluate the assertion of privilege. This issue will be further addressed in a conference call to take place on January 21, 2005 at 9:30 a.m. EST.
41Secondly, the respondent has yet to receive various rent receipts and related documents said to substantiate the complainant’s losses associated with her complaint. Ms Mulgrave has advised that some of that material has been collected, but that more may be forthcoming. I have directed that any such documentation in the possession of the complainant shall be disclosed to the other parties on or before January 7, 2005.
42I have been advised that further documentation may only become available at a later date. I have directed that any such documentation be disclosed by Ms Mulgrave when and if it is obtained. The respondent will have the full opportunity to later submit that he has been prejudiced by any untimely disclosure. I will not prejudge that issue.
43As indicated above, a further conference call will be conducted on January 21, 2005 at 9:30 a.m. EST to address any remaining pre-hearing issues, including the implementation of my Order concerning the evidence of Ms Furey, and to set hearing dates.
Dated at Toronto, this 22nd day of December, 2004.
“Mark J. Sandler”
Mark J. Sandler Member