Michael LeBlanc v. Toronto Transit Commission, 2011 HRTO 1634

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael LeBlanc

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM decision

Adjudicator: Douglas Sanderson

Date: August 31, 2011

Citation: 2011 HRTO 1634

Indexed as: LeBlanc v. Toronto Transit Commission

1This is an Application filed on December 7, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses the applicant’s assertion that his witnesses will testify by telephone conference and that one of his witnesses shall testify for only 30 minutes.

2For the reasons that follow, I find that the applicant may not present his witnesses by telephone conference. Rather, the applicant’s witnesses must attend the hearing in person and remain for such time as is required to complete their testimony.

Background

3The applicant was employed as a Dispatcher with the respondent. He states he suffers disabilities that negatively affected his attendance, but was seeking treatment with a view to improving his attendance. Rather than accommodate his disabilities, the applicant alleges the respondent discriminated against him by terminating his employment. The respondent denies the applicant suffered a disability requiring the accommodation he requested and alleges the applicant was dishonest regarding his absences and ability to perform work. The respondent asserts the applicant’s alleged dishonesty was grounds for dismissal for cause and denies any discrimination. The Tribunal has scheduled the hearing of this matter for September 28 and 29, 2011.

4The parties have made pre-hearing disclosure, pursuant to the Tribunal’s Rules of Procedure (the “Rules”) and direction in previous Interim Decisions from the Tribunal. On August 18, 2011, the applicant delivered his witness list, as is required by Rule 17.2. The applicant included the following assertion in this document:

I anticipate that everyone on my witness list will be testifying via telephone conference. With respect to Dr. Gawel, he has requested that the only time he can be made available would be on September 28th between the hours of 12:00 pm. and 12:30pm.

The respondents have not yet taken a position regarding this assertion, but given the short time before the hearing, I believe the issue must be addressed proactively.

5Rule 3.5 of the Rules states the Tribunal “may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate.” While the Tribunal may permit testimony by telephone, witnesses are generally expected to attend hearings in person to testify. The Tribunal’s approach to this issue is set out in Pinkney v. Datex Billing Services, 2009 HRTO 1732, at paragraph 6, as follows:

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.

The applicant provided no reasons for having his witnesses testify by telephone. Consequently, there is no basis upon which I can conclude that allowing the applicant’s witnesses to testify by telephone is appropriate. Given these circumstances, I direct the applicant to present his witnesses in person. I note that the Tribunal will provide parties with Summonses, upon request, in order to compel witnesses to attend. I also note that convenience will generally be insufficient reason to allow testimony by telephone.

6The applicant’s health is a central issue in this dispute and both parties have indicated that they expect to call medical evidence to support their respective cases. Dr. Gawel treated the applicant and is anticipated to testify regarding the applicant’s medical condition and any accommodation required as a result of that condition. The applicant states that Dr. Gawel is available for only 30 minutes on September 28, 2011, presumably by telephone. Given the nature of the case, Dr. Gawel’s testimony, including cross-examination, will almost certainly take considerably longer than 30 minutes. Consequently, such limited availability is unacceptable. If Dr. Gawel is to testify, he must attend in person for such time is required for him to complete his testimony, as must the applicant’s other witnesses.

7I note, however, that the applicant has proposed several witnesses and it seems likely that he will not complete his case in the two days currently scheduled. The applicant therefore has the option of calling his other witnesses to allow his medical witnesses to testify on continuation dates, the scheduling of which he can coordinate with the respondent and Registrar to ensure the witnesses are available.