Rocca v. Peel District School Board, 2009 HRTO 1041

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Rocca, by his litigation guardians, Nick Rocca and Debra Rocca Applicant

-and-

Peel District School Board, John Stegeman, Tony Pontes and Shirley-Ann Teal Respondents

INTERIM DECISION

Adjudicator: Lorne Slotnick Date: July 15, 2009 Citation: 2009 HRTO 1041 Indexed as: Rocca v. Peel District School Board

SUBMISSIONS BY

Matthew Rocca, by his litigation guardians, Nick Rocca and Debra Rocca: Harry Kopyto, Legal Agent

Peel District School Board, John Stegeman, Tony Pontes and Shirley-Ann Teal: Roy Filion and Laura Karabulut, Counsel

1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with a request by the applicant, through his litigation guardians, to audiotape all or part of the Case Resolution Conference hearing, which is scheduled for five days starting in September, 2009.

2The applicant’s litigation guardians state they wish to record all or portions of the hearing as an aide-memoire. They say they are not certain whether they will transcribe the tapes. They say the tapes would be made unobtrusively and for the sole purpose of conducting the hearing, and that they would not be played back at the hearing.

3The respondents oppose the request. In written submissions, they note that the Tribunal has no practice of recording its own proceedings, and argue that recording inevitably results in delay and formality, which undermine the Tribunal’s goal of expeditious hearings, which is a particular priority in applications under section 53(3). Respondents have referred me to two cases where tribunals have refused requests by parties to audiotape proceedings, saying such recording can be disruptive or intimidating at the hearing, and open to abuse outside the hearing by a party that might wish to use the recorded material for propaganda purposes in the news media or on the Internet, or to prepare a witness who has been excluded. See: Ontario Public Service Employees Union and Ontario (Ministry of Transportation, Finnan Grievance) [2009] O.G.S.B.A. No. 53 (Ont. Grievance Settlement Board) and Burman and Fellows Electrical Contracting Co. [1995] N.B.L.E.B.D. No. 7 (New Brunswick Labour and Employment Board). The written submissions of the respondents assert that they and some of their witnesses have indicated they would feel extreme discomfort in giving their evidence if audio taping by the applicant is permitted.

4The Tribunal has in the past granted requests by parties to audiotape proceedings, even where that request was not necessary to accommodate a disability. See for example Baylet v. Universal Workers Union, 2009 HRTO 700.

5A recording by a party is not part of the official record of the hearing. In fact, even in the exceptional case where the Tribunal itself makes a recording of the hearing, it does not become part of the record, as is made clear by Rule 5.7 of the Tribunal’s Rules of Procedure for this type of Application. That Rule reads as follows:

5.7 The Tribunal does not normally record or transcribe its proceedings. Where a case resolution conference or hearing is recorded the recording does not form part of the Tribunal’s record of proceedings including any record filed in respect of an application made under the Judicial Review Procedure Act.

6I see very little difference in substance between a party taking notes at a hearing – either on paper or using a computer -- and a party audio taping the hearing. In each case, the party is simply making his or her own personal record of the proceedings. The main difference lies in the uses to which an audio recording can be put, such as being broadcast publicly or posted on the Internet. These concerns are understandable but can be dealt with by imposing conditions on the recording. In this case, the applicants have stated they have no desire to use the material for anything but conduct of the hearing. I agree that allowing recording has the potential to create delays and disruption, but that will not always be the case. In my view, this potential problem can be handled if it arises by the Tribunal ordering an end to the taping if and when it becomes an obstruction at the hearing.

7I have already ordered an exclusion of witnesses at the hearing. It would be improper to discuss testimony with an excluded witness who has not yet testified, whether that discussion involved reading notes or playing an audio recording. I do not view the risk of this improper conduct as any higher with a recording. With respect to the respondents’ assertion that some of them or their witnesses would feel intimidated or uncomfortable testifying if their evidence were taped, it is not uncommon for witnesses at any hearing to be uneasy for a variety of reasons, but in my view, that is not a compelling reason to deny the request.

8For these reasons, and given the applicants’ statements regarding the limited uses to which they seek to put the tapes, I am prepared to allow either party to audiotape all or a portion of the hearing. However, before any party is allowed to begin taping, I will ask them to agree to the following conditions:

1. No portion of the tape is to be played back at the hearing.

2. No portion of the tape is to be played to any person who is not a party or counsel (including representative) in this Application.

3. Any tapes or transcripts of tapes are understood not to be part of the record of the hearing.

4. Any tapes made are to be used solely for conduct of the hearing, and no portion will be broadcast or posted publicly, or provided to anyone who is not a party or representative at the hearing. No transcript or purported transcript is to be provided to anyone who is not a party or representative at the hearing.

5. The Tribunal retains the right to halt the audio taping in the event that it causes delay or disruption, without hearing any further submissions on the matter.