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
Background
1In my Interim Decision dated December 22, 2004, I held that the respondent would not be significantly prejudiced if Ms Rachel Furey’s evidence was taken electronically, whether by video or telephone conferencing. However, it was my preference that, if reasonably practicable, her evidence be taken by way of video conferencing. No inquiries had been made by the Commission at that time as to the practicability of taking Ms Furey’s evidence by way of video conferencing.
2Accordingly, I ordered that Ms Furey would be permitted to provide evidence electronically during the hearing, upon conditions which included:
(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 ...
(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.
Further Evidence
3Pursuant to the above Order, the Commission filed the affidavit of Christine Tess Sheldon, sworn January 20, 2005. Ms. Sheldon, a student-at-law in the Legal Services Branch of the Commission made approximately 30 telephone calls, sent approximately 15 e-mails, and communicated with approximately 15 different individuals or facilities in an effort to arrange for video conference services for transmission from Iqaluit, Nunavut, to Toronto.
4Paragraphs 12 and 13 of the affidavit summarize the results of the Commission’s extensive inquiries:
The total cost for a three-hour video conference, based on these providers in Iqaluit and Toronto, would include both the cost of the video conference transmission from Iqaluit ($1320.00 if TeleHealth provides the service; $1350.00 if NorthWest Tel provides the service) and the video conference reception service in Toronto ($620.00 if Telus provides the service at one of its designated locations; $2,000.00 if Telus provides a mobile service; $575.00 if the Canadian Hearing Society provides the service). Based on their figures, a video conference between Iqaluit and Toronto would cost a minimum of $1895.00. Long distance charges may also apply.
In all of my communications, as set out in this affidavit, it was made clear that the actual compatibility between the “outgoing” video conference transmission in Iqaluit and the “incoming” video conference reception in Toronto -- that is, the actual ability of the transmission services in Iqaluit to communicate with the reception services in Toronto -- could not be confirmed without a trial or test. It is my understanding that, until such testing is undertaken, there is no guarantee that the video transmissions between Toronto and Iqaluit are compatible.
Submissions
5On January 21, 2005, a further hearing was conducted, by telephone conference call, to consider what further Order, if any, should follow. In particular, the parties made submissions as to the import of the affidavit evidence filed by the Commission. No party sought to cross-examine Ms. Sheldon on the affidavit, or tender further evidence on this issue.
6The Commission submitted that the financial costs associated with video conferencing, together with some residual uncertainty about the ability of the transmission services in Iqaluit to communicate with the reception services in Toronto, made it reasonably impracticable to take Ms Furey’s evidence by way of video conferencing. The complainant supported the Commission’s position.
7The respondent submitted that the Commission’s own evidence demonstrates that it is reasonable practicable to take Ms Furey’s evidence by way of video conferencing. He submitted that costs should not determine reasonable practicability, and in any event, the costs associated with video conferencing (particularly when balanced against the countervailing interests involved) were not such as to demonstrate reasonable impracticability.
8Counsel for both the Commission and the respondent revisited a number of the submissions that had been made earlier on this issue. Those submissions were largely summarized in the Interim Decision dated December 22, 2004 and need not be repeated here.
Decision
9The costs associated with taking Ms Furey’s evidence by way of video conferencing are substantial. For a three-hour conference call, the costs would total at least $1895.00, excluding possible long distance charges (which will be incurred even for telephone conferencing) and any costs associated with a trial or test of the transmission and reception services. Indeed, these costs are comparable to those that would have been incurred had Ms Furey been required to attend Southern Ontario to testify in person.
10The estimated costs are based upon the assumption that Ms Furey will only be required to testify for a total of three hours. It may turn out that her evidence can be completed in three hours or less. However, there is a significant level of uncertainty associated with her evidence. First, its admissibility is in dispute. Given the basis for the challenge to its admissibility, this likely means that Ms Furey’s testimony will be heard, at least in part, by way of voir dire, with further evidence from her possibly to follow, in the event that the testimony is admissible.
11Second, the issue of privilege has been raised concerning some or all of her communications with the complainant. A schedule has been set for the exchange of written submissions on the issue of privilege. However, as I indicated to the parties, the resolution of this issue may again require that evidence be tendered, possibly from Ms Furey.
12Third, I have been advised recently that some or all of the communications between Ms Furey and the complainant were taped, and that these taped communications have not been preserved. This, too, I am told, may generate a further dispute, which again could involve testimony from Ms Furey. Put simply, it cannot be said with confidence that her testimony will proceed continuously, or be completed within a particular time frame.
13In my Interim Decision, particularly in paragraph 32, I outlined some of the considerations that should inform the exercise of discretion by this Tribunal in determining whether evidence will be taken electronically, and if so, in what form. Those considerations have figured prominently in my decision. Having regard to all of the relevant circumstances, I remain satisfied that the respondent will not be significantly prejudiced if Ms Furey’s evidence is taken electronically, whether by video or telephone conferencing. Contrary to the respondent’s very capable submissions, the costs associated with video conferencing should inform the exercise of my discretion. As I have noted, those costs are substantial, and may increase depending upon how the unresolved issues surrounding her evidence are litigated. Reasonable impracticability is not synonymous with impossibility. In my view, it would be reasonably impracticable to take Ms Furey’s evidence by way of video conferencing. As a result, she will be permitted to testify by way of telephone conferencing.
Miscellaneous Matters
14On January 21, 2005, I further addressed the issue of privilege concerning Ms Furey’s communications with the complainant. The complainant has agreed that I may review, without disclosure to the other parties, existing documentation concerning the contents of those communications, which will be provided to me in a sealed envelope. Counsel for the complainant has also undertaken to provide the other parties, most particularly the respondent, with as much information as possible (without effectively waiving any privilege) about the nature of, and circumstances surrounding, those communications to facilitate helpful submissions by all parties on the issue of privilege.
15Written submissions will be served on the parties and filed with the Tribunal according to the following schedule:
Complainant’s submissions On or before March 1, 2005
Commission’s submissions On or before March 8, 2005
Respondent’s submissions On or before March 15, 2005
No reply submissions are required.
16The parties will also advise the Tribunal in their written submissions whether they are also requesting an opportunity to tender further evidence, or make oral submissions, on the issue of privilege.
I am grateful to all counsel for their assistance to date.
ORDER
Ms Furey will be permitted to testify by way of telephone conferencing; and
Written submissions on the issue of privilege will be provided to the Tribunal in accordance with the schedule outlined above.
Dated at Toronto, this 1st day of February, 2005.
“Mark J. Sandler”
Mark J. Sandler
Member