HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Samantha Scharf
Applicant
-and-
Electra Kiriakakis, Donna Kiriakakis, and Angelo Kiriakakis
Respondents
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Scharf v. Kiriakakis
1The purpose of this Interim Decision is to determine the applicant’s request that the hearing of the Application proceed based only on written materials.
OVERVIEW
2This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in housing on the basis of disability. She also alleges reprisal or threat of reprisal. In essence, the applicant alleges that the respondents failed to accommodate her environmental and chemical sensitivities. She states that she alerted the respondents to her disability-related needs. When she raised the need for specific accommodation measures, the applicant states that the respondents terminated her lease agreement.
3Each respondent has filed a separate Response denying the allegations of discrimination. They state that the applicant did not alert them to any disability or need for accommodation. She did, however, complain about odours emanating from the restaurant located just below the apartment. The respondents state that the applicant’s lease was not terminated, but that the applicant was given an opportunity to opt out of the lease, given her complaints about odours.
4In an email to the Tribunal (copied to the respondents) on October 17, 2011, the applicant requests that the hearing of this matter proceed based on written materials filed by the parties. She writes:
To ensure I am not disadvantaged due to medical limitations in said hearing proceeding, it is necessary to provide accommodation in that all the hearing process requires to be done via written submissions. I am not able to attend in person nor proceed via telephone.
5The applicant has provided medical reports indicating that she has chemical sensitivities. The medical reports appear to have been produced to her employer and they support a request that she be allowed to “tele-work”.
6The respondents’ counsel wrote to the Tribunal (copied to the applicant) on October 17, 2011. He requested clarification regarding the cancellation of the mediation scheduled in this matter. He also raises objections to the applicant communicating with administrative staff at the Tribunal without including the respondents.
ANALYSIS
7The applicant’s request that the hearing proceed based on written material only raises issues as to how and whether this matter can proceed.
8Rule 3.5 of the Tribunal’s Rules of Procedure state that the Tribunal may conduct hearings in person, in writing, by telephone, or by other electronic means, as it deems appropriate. Further, section 5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, states:
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.
9The Tribunal’s general approach to participation at hearings is explained in Haskins v. Religious Hospitaliers of Hotel Dieu of St. Joseph of the Diocese of London, 2010 HRTO 1550 and Pinkney v. Datex Billing Services, 2009 HRTO 1732. Ordinarily, participants, especially parties, are expected to be available in person to testify, submit to cross-examination, and to question other witnesses.
10This is particularly the case where, as here, the credibility of the witnesses will be key. See Zeividavi v. Catholic Immigration Services, 2011 HRTO 406. Based on the pleadings, the parties’ evidence is expected to differ in key areas. The determination of the issues raised in the Application will turn, to a large extent, on the Tribunal’s assessment of the credibility of the witnesses, in particular that of the applicant and the respondents.
11In the circumstances of this case, where the outcome will turn on which witness or witnesses’ version of the facts is preferred, the Tribunal could not fairly assess the credibility of all of the witnesses based on written materials. In my view, oral cross-examination is essential for the Tribunal to weigh the credibility of the witnesses.
12In the past, the Tribunal has held that, where credibility of the parties is key, the parties may be required to be physically present at the hearing in order for the Tribunal to fairly and effectively assess their evidence. See Zeividavi, supra. However, in Zeividavi, the applicant’s inability to attend the hearing was not Code-related. In that case, the applicant cited only expense and inconvenience in support of his request to testify by telephone or video.
13In this case, while the applicant has submitted some medical evidence, none of it suggests that she could not, at a minimum, attend the hearing by telephone. Indeed, the medical evidence she did provide recommends tele-work. I also note that, while the mediation was eventually cancelled at the applicant’s request, she had initially agreed to participate in a mediation by telephone.
14Further, while the applicant has stated that she is unable to attend a hearing in person, she has not attempted to identify her sensitivities for the Tribunal or give the Tribunal an opportunity to determine whether it can accommodate those sensitivities at an in-person hearing. While the medical evidence she provides states that she is not able to attend her workplace on a regular basis, it is not clear that the applicant would also, for disability-related reasons, be unable to attend a hearing as long as certain accommodation measures are in place.
DECISION AND NEXT STEPS
15I find that the hearing of this matter cannot proceed based only on written materials. I find also that, while the applicant has submitted some medical evidence regarding her disability, this evidence does not support her request for a hearing based on written materials only.
16Within 30 days of the date of this Interim Decision, if the applicant wishes to proceed with her Application, she must:
Advise the Tribunal and the respondents in writing what accommodation measures she requires in order to attend a hearing of this matter in-person; and
In the alternative, she must file with the Tribunal and deliver to the respondents a Request for an Order During Proceedings that she be allowed to testify and attend the hearing by telephone along with any medical evidence in support of this Request.
17Within 45 days of the date of this Interim Decision, the respondents may deliver to the applicant and file with the Tribunal written submissions in response.
18If the parties fail to deliver submissions as directed, the Tribunal may either determine the issue based on the materials filed or it may deem the Application to have been abandoned.
19I am not seized of this matter.
Dated at Toronto this 14th day of November, 2011.
”signed by”______________
Michelle Flaherty
Vice-chair