Human Rights Tribunal of Ontario
B E T W E E N:
William Rumble Applicant
-and-
TRW Kelsey-Hayes Respondent
INTERIM DECISION
Adjudicator: Mark Hart Date: October 19, 2010 Citation: 2010 HRTO 2106 Indexed as: Rumble v. TRW Kelsey-Hayes
1This Application was filed under s. 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”) with respect to the applicant’s original complaint made to the Ontario Human Rights Commission on July 4, 2007. The applicant alleges discrimination in employment on the basis of disability due to chronic back problems.
2By Interim Decision dated July 15, 2010, Rumble v. National Automobile, Aerospace Transportation and General Workers Union of Canada, Local 636, 2010 HRTO 1535, the Tribunal denied the respondent’s request to dismiss this Application in part, and allowed the Application to proceed on its merits only with respect to the circumstances surrounding the applicant’s termination from employment on May 6, 2007 and the one year prior to that incident.
3Following release of this Decision, the Tribunal contacted the parties by letter dated August 25, 2010 to propose dates for the hearing in this matter.
4By letter dated September 10, 2010, the applicant stated that he would not financially be able to attend the hearing in person, but would be available for the hearing by telephone. The applicant currently resides in New Brunswick.
5The respondent takes the position that there are serious credibility issues involved in this case, such that there would be significant prejudice to the respondent if the applicant is not present for cross-examination. The respondent submits that the ordinary expectation is that hearing participants, especially parties, will make themselves available in person to testify and submit to cross-examination. The respondent notes that the applicant is raising a non-Code related reason for his inability to attend, namely financial considerations, which is not a sufficient reason to justify conducting the hearing in this matter by teleconference. The respondent accordingly requests that this Application be dismissed.
6As stated by this Tribunal in Pinkney v. Datex Billing Services, 2009 HRTO 1732:
Rule 5.5 of the Tribunal’s Rules of Procedures Governing Transitional Applications under section 53(3) and 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended provides that the Tribunal “may conduct…a hearing …in person, in writing, by telephone, or by other electronic means, as it considers appropriate.”
Section 5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 provides that the burden is on the party opposing to show that it may be caused significant prejudice if the hearing is held by telephone:
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.
I am not satisfied that it is appropriate to hold this hearing by telephone and therefore do not need to determine whether there is significant prejudice to the respondents. There are serious credibility issues involved. The ordinary expectation is that participants, especially parties, make themselves available in person to testify and submit to cross-examination and also be present in person to question other witnesses. There have been circumstances where the Tribunal has permitted witnesses to participate by telephone where the extent and nature of their testimony made such arrangements fair, just and expeditious.
In this case, the applicant has not submitted any reason for seeking to participate by telephone other than the expense associated with travelling and the inconvenience of absenting herself from work. These reasons fall far short of the type of circumstances that would justify the applicant’s request.
7Similarly, in this case, there are serious credibility issues to be determined, such that it would not be appropriate to allow the applicant to participate in this hearing by teleconference. As with the applicant in the Pinkney case, the applicant here has not submitted any reason to justify seeking to participate in the hearing by teleconference except for the expense involved in travelling, which falls far short of the type of circumstance that would justify granting his request.
8Within 20 calendar days of the date of this Interim Decision, the applicant shall confirm that he is prepared to attend the hearing in this matter in person. If the applicant does not provide this confirmation, this Application will be dismissed as abandoned.
9I am not seized.
Dated at Toronto, this 19th day of October, 2010.
“Signed by”
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Mark Hart Vice-chair