Mathew Blakely v. Queen’s University, 2011 HRTO 1600

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mathew Blakely

Applicant

-and-

Queen’s University

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: August 25, 2011

Citation: 2011 HRTO 1600

Indexed as: Blakely v. Queen’s University

1This Interim Decision is written to address the respondent’s request for one of its witnesses to testify by phone at the hearing on October 24, 2011.

2The applicant alleges that he experienced discrimination in employment because of disability contrary to ss. 5 and 9 of the Code and reprisal contrary to ss. 8 and 9 of the Code, arising out of the denial of a position as a Sessional Adjunct Instructor to teach a six-week module (Introduction to Drawing) in the 2007 spring term (May 7 to June 18, 2007).

3The decision to hire someone other than the applicant for this position was made by the Sessional Adjunct Committee in the Department of Art at the respondent university. The respondent proposes to call two witnesses to testify at the hearing, both of whom were members of this committee.

4One of these two witnesses, Sebastian Schütze, now resides out of the country. For this reason, the respondent requests that he be permitted to provide his testimony by phone.

5The applicant did not file any response to the respondent’s request, despite having been properly served.

6In my view, little prejudice would result from this witness providing his testimony by phone. The issue in this case pertains to whether the applicant’s disability or reprisal was a factor in the decision not to hire him for this position, which may include consideration of the credibility of the committee’s reasons for not hiring the applicant and for hiring the successful candidate. While this to a certain extent may require me to assess the credibility of the witnesses who testify before me, it is not the kind of credibility contest where witnesses are providing conflicting accounts as to what was said or done at any specific time. Rather, I may hear evidence from Mr. Schütze as to the reasons the committee made the decision it did and I may be called upon to assess the credibility of those reasons in the context of the surrounding evidence in order to determine whether in fact they are a pretext for disability discrimination or reprisal. Such an assessment, in my view, would not be significantly prejudiced by allowing Mr. Schütze to testify by phone, particularly where another committee member will be testifying before me in person.

7Accordingly, I hereby grant the respondent’s request and will allow Mr. Schütze to testify by phone at the hearing on October 24, 2011. The respondent should bring to the hearing a phone number where I may reach Mr. Schütze at the appropriate time. As I will be hearing the applicant’s evidence first, Mr. Schütze should ensure that he is available to give his evidence at least as of 11 a.m. on that day.