Wattie v. Toronto District School Board, 2010 HRTO 2087

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kerr Wattie

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: October 15, 2010

Citation: 2010 HRTO 2087

Indexed as: Wattie v. Toronto District School Board

APPEARANCES

Kerr Wattie, Applicant ) Cara Wilkie, Counsel

Toronto District School Board, Respondent ) Grant Bowers, Counsel

1This is an Application made under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated May 8, 2009. The underlying amended complaint was filed with the Ontario Human Rights Commission (the “Commission”) on July 11, 2007.

2The hearing into this Application commenced, as scheduled, on October 6, 2010, at which time a number of preliminary issues and the parties’ availability for additional hearing dates were canvassed.

3The purpose of this Interim Decision is to confirm matters agreed to by the parties and to provide direction on a number of outstanding procedural issues on which I heard submissions on October 6, 2010, pursuant to a Case Assessment Direction issued in advance of the hearing date.

4The applicant is unable to communicate without assistance. He is represented by his litigation guardian in this Application, and by counsel. Among the matters canvassed on October 6, 2010, and on which his counsel made submissions, is his request for communications accommodation during the hearing process.

Additional Dates

5The parties estimate that 10 to 12 hearing days may be needed. The Tribunal will schedule eight days of hearing and has canvassed the parties’ availability. The eight hearing days will be set based on the dates in January and February 2011 provided by the parties and keeping in mind that the applicant cannot attend two days in a row and not more than two days in any one week. A Notice of Hearing will be sent out by the Registrar confirming the dates set for the resumption of the hearing.

Bifurcation

6The applicant confirmed that although he is no longer alleging a systemic breach by the respondent, he intends to seek remedies for future compliance of a systemic nature if a breach is established. The parties seek, on consent, to have the hearing into this Application bifurcated.

7The request to bifurcate is granted. In the event that a breach of the Code is established, the Tribunal will provide additional direction to the parties regarding the process to be followed for that portion of the hearing that focuses on the issue of remedy.

Audio Recording

8The Tribunal has made arrangements for an audio recording of the proceedings but cannot guarantee its quality and reliability. Although there was some disagreement in advance of the hearing regarding the use of this recording, the parties agreed on October 6, 2010, that the audio recording would not form part of the record of proceedings.

9The recording will be available to the parties at the end of each week of hearing. The parties should make arrangements with the Hearing Centre Coordinator to receive a copy of the recordings of each week’s hearings or to receive a copy of the full recording at the end of the hearing.

Order Excluding Witnesses

10The parties agree to an order excluding witnesses with the exception of the applicant, his litigation guardian and Judi Misener for the respondent.

Testimony By Phone

11The applicant requests, with the consent of the respondent, that two of his witnesses be permitted to testify by phone. The request is granted and the applicant is directed to ensure all necessary documents will be sent to the witnesses in advance of their appearance by telephone.

Additional Witness Statements

12Although both parties had filed witness statements in advance of the October 6, 2010 hearing date, the respondent has agreed to serve on the applicant and file additional and more detailed statements for Judi Misener, Nancy Darnell, Eugenia Rependa, Kathy Pelaia and Kathy Owen by November 1, 2010. In addition, the respondent has agreed to either serve and file a more detailed witness statement for its witness, Candace Yanchyshyn, or to provide an update on efforts to locate Ms. Yanchyshyn by November 15, 2010.

Outstanding Disclosure Issue

13The applicant indicates that he wishes to renew his request for disclosure of all information and documents regarding the availability and provision of communication assistants in the TDSB. That group would include sign language interpreters, deaf/blind intervenors and other communication assistants. The applicant takes the position that these documents are arguably relevant to the issues in dispute.

14At the hearing, the applicant was directed to make his request and any submissions on this matter in writing no later than two weeks from October 6. The respondent was directed to provide its submissions no later than two weeks from the date of receipt of the applicant’s materials.

Communication Assistant

15As part of his request for accommodation, the applicant seeks to give his testimony, which goes to the issues of breach as well as remedy, with the support and assistance of a communication assistant of his choosing.

16The applicant is described by his litigation guardian as having cerebral palsy, spastic quadriplegia, a cortical visual impairment, a number of allergies, a complex communication disorder and experiencing multiple seizures.

17Counsel for the applicant submits that he communicates in a variety of ways. They include use of the VOCA (voice communication output aid), a method of communication called “auditory scanning” and with the support of a communication assistant. Counsel argues that the communication assistant he needs to use in order to participate in this proceeding must be one who is familiar with all his medical conditions and who has worked with him and can, therefore, for example, distinguish between non-response and an “absence seizure”, among other things. The applicant argues that for the reasons given, an assistant picked from a general roster of persons trained to use the VOCA device alone would not be able to perform the task required.

18The applicant points to the Tribunal’s Policy on Accessibility and Accommodation, in particular, to the following passage:

When requested to accommodate Code-related needs, the Tribunal will provide visual interpretation services, such as American Sign Language (ASL) and langue des signes québécoise (LSQ), real time captioning, intervenors to interpret in-person communication, and audio recordings of its hearings. Persons with disabilities may also provide a qualified interpreter or intervenor of their choice.

19Counsel argues that meaningful access will be denied to the applicant if he is unable to put his evidence before the Tribunal. While counsel acknowledges that the inquiries usually made regarding interpreters and the reliability of the evidence obtained through their use is not possible in this case, she points out that Ms. Walters, the proposed communications assistant, has had no prior involvement in this matter, would take an oath to accurately interpret what the applicant is communicating and someone with no knowledge of the effect of his seizure disorder on the applicant’s communications could not adequately assist him in communicating.

20The respondent, for its part, argues that the service being provided by the communication assistant being put forward by the applicant is not interpretation, but something else altogether that counsel for the respondent describes as “mediation”. There is no way, he submits, for the Tribunal to gauge the accuracy of the information being communicated by the assistant given the lack of an objective system of markers or independent accreditation and a common language being used that could be verified by a third party. The respondent argues that any assistant put forward by the applicant is, by definition, not independent and, as in the case of Ms. Walters, has an ongoing employment relationship with the applicant and his litigation guardian.

21The respondent questions how, given the challenges described by the applicant and the limitations with respect to communication, a detailed, three-page witness statement was prepared for this proceeding.

22The use of the communication assistant, their training and the methods used by them are central issues in the main hearing and the respondent submits these are fundamental questions on which the parties take different positions and suggests a voir dire be held on the issue.

23I agree that there is significant overlap between the issue at hand and the issues raised in the Application. The evidence of the experts retained by the applicant in support of his Application deals with the educational needs of students that use “augmentive and alternative communication” (AAC) and the role of communication assistants in supporting them. It is that same evidence that is submitted in support of this Request.

24In my view, however, holding a voir dire would unnecessarily prolong the hearing and would not be a fair, just and expeditious manner of proceeding.

25It is not apparent that any third party interpreter would be able to assist the applicant in his communications during the hearing. I will allow the applicant to give his evidence using the services of the communication assistant put forward by him, Ms. Walters, in order that he has meaningful access to this process. However, I will reserve my decision on the admissibility, reliability and weight to be given to the evidence obtained with the assistance of the communication assistant.

26In order to address the concerns expressed by both parties, in advance of the applicant giving his evidence, the parties will be given an opportunity to question Ms. Walters in respect of her past involvement in this proceeding, the training she has received and the methodology she uses in performing her tasks. Following the evidence given by Mr. Wattie, either party may request that Ms. Walters be recalled to ask any further questions that may have arisen and I will consider that request if it is made.

27Finally, the parties are also free to make submissions on the issues of admissibility, reliability and weight at the close of evidence at one or both stages of the hearing.

Applicant’s Testimony

28The applicant proposes that he be asked questions based on his witness statement and that all questioning be done by me as a form of accommodation of his disability. The applicant’s request is based on the assertion that his medical conditions put him at risk of having additional and more stress-induced seizures if he is subject to cross-examination in an adversarial setting. In support of this proposition, he submitted a report from a psychiatrist who has not treated the applicant but has knowledge of his medical conditions, whose opinion is that the stress of the hearing process would have a detrimental medical and psychological effect on someone like the applicant, particularly with respect to his seizure disorder.

29The psychiatrist’s report, which remains untested, suggests that Mr. Wattie testify in a separate space outside the main hearing room with questioning in a non-adversarial manner by the hearing adjudicator and not by counsel.

30The respondent argues that the Tribunal must balance the need to accommodate the applicant’s disability and his right to participate fully in this process with the respondent’s right to test the evidence and its right to make full answer and defence to the allegations it faces. It argues that the applicant is seeking an extraordinary procedure that would prejudice the respondent.

31As stated above, it also questions the method by which the witness statement may have been prepared on behalf of the applicant, given the stated difficulties in communication. Counsel for the applicant agrees that given the unusual circumstances of this Application, it would be appropriate to inquire into the method of preparation of the witness statement.

32The respondent has agreed that the questioning of the applicant can take place by videoconferencing, with the applicant in an appropriately dimmed, separate room, and that questions be put to the applicant through the hearing adjudicator. While the parties have discussed the possibility of agreeing on lines of questioning, I am not inclined to proceed in that manner and instead direct that the respondent submit any questions it wishes to put to the applicant in cross-examination to the Tribunal so that the questions can be asked by the hearing adjudicator.

33Based on the submissions and agreements of the parties and the extraordinary circumstances before me, I find that the most fair, just and expeditious way of proceeding is for me to conduct the questioning of the applicant. The questions will include an inquiry into how the applicant’s witness statement was prepared and will be based on the content of the witness statement filed by the applicant and on questions that the respondent wishes to be put to the applicant to test the evidence given by him.

34The respondent is directed to present its questions to the Tribunal three weeks in advance of the date on which the applicant is to testify. The questions need not be copied to the applicant. If additional questions arise during the course of the applicant’s testimony, I will hear from the respondent if it wishes to add to the questions already submitted.

35The parties are reminded that the initial part of the hearing will be limited to the question of whether a breach of the Code occurred and if the second portion of the hearing is convened, this process will be repeated.