Blakely v. Queen’s University, 2011 HRTO 2308

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: December 23, 2011 Citation: 2011 HRTO 2308 Indexed as: Blakely v. Queen’s University

1This Interim Decision is written to address the admissibility into evidence of a report dated December 6, 1996, by a psychologist, Dr. D.J. Torney, which diagnoses the applicant as having a learning disability in written expression.

2The hearing in this matter commenced on October 24, 2011, and is scheduled to continue on January 13, 2012 and, if necessary, on January 20, 2012. At this point in the hearing, the applicant has concluded his evidence, including cross-examination. Cross-examination remains to be completed on one witness called by the applicant. The respondent has not commenced calling its evidence in response.

3The applicant was required under the Tribunal’s Rules to long ago have disclosed all arguably relevant documents to the respondent and to have filed with the Tribunal all documents upon which he intended to rely at the hearing. Dr. Torney’s report was not previously disclosed to the respondent in the context of this proceeding, although the applicant states that it was disclosed as part of materials filed in another proceeding before the Ontario Labour Relations Board, and was not filed prior to the hearing as a document upon which the applicant intended to rely. Dr. Torney’s report only came forward as part of certain submissions and requests made by the applicant on November 21, 2011.

4One of the central issues in this case is the applicant’s allegation that he experienced discrimination because of disability in being denied an adjunct instructor position. In his complaint which forms the basis of the Application before this Tribunal, the applicant alleges that he has a learning disability and that his disability was a factor in the denial of this position. Notwithstanding this allegation and prior to the filing of Dr. Torney’s report, the applicant had submitted no medical evidence to support the existence of a learning disability.

5In his evidence-in-chief at the hearing, the applicant did mention Dr. Torney’s report as diagnosing him with a learning disability. He also stated that he had told faculty in the Arts Department at the respondent University that he had a learning disability several years prior to the hiring decision at issue in this case. On cross-examination, it was put to the applicant that he had not submitted any medical documentation to support the existence of a diagnosed learning disability, and the applicant said that he could not recall what he had disclosed. It does not appear to be at issue that the applicant did not submit any such documentation to the respondent University at the time of the events at issue in this proceeding.

6The respondent takes the position that it would be prejudiced by the introduction of this report at this stage of the proceeding. Counsel has stated that Dr. Torney appears to have retired in 2000 and she has not been able to find any current contact information. As a result, Dr. Torney may not be available to testify to this report. In the absence of Dr. Torney’s actual evidence, the respondent objects to the admissibility of this report as hearsay. The respondent also notes that this report is now 15 years old, and as such may be of little relevance or reliability in answering the question as to whether, at the time of the events at issue, the applicant actually had a learning disability.

7I certainly appreciate the concerns expressed by respondent counsel. However, in my view, those are matters that can be taken into consideration by me as a matter of what, if any, weight I should give to Dr. Torney’s report as opposed to the issue of admissibility. I also appreciate the respondent’s concern about the extremely late filing of this report. However, I am mindful that the applicant is unrepresented by legal counsel and may have a learning disability that affects his memory and concentration. I also am mindful that, while the applicant has completed his evidence, he has not yet closed his case, so this is not a situation where the respondent has actually yet started calling its evidence.

8In my view, in balancing the competing interests at play in this situation, the more fair and just result is to allow Dr. Torney’s report into evidence. I will re-open cross-examination of the applicant to allow respondent counsel to ask any questions of him relating to or arising out of Dr. Torney’s report. With regard to the admissibility of Dr. Torney’s report in the absence of Dr. Torney being called as a witness in this proceeding, I note that I do have the discretion to admit hearsay evidence and that it is not uncommon for this Tribunal to receive and accept medical documentation into evidence without the doctor being required to testify. In my view, any concerns arising out of the absence of Dr. Torney’s oral evidence and the age of the report can be addressed by the respondent in its final submissions and can be taken into account by me in assessing what weight to be given to this evidence.

9Accordingly, for these reasons, I will admit the report of Dr. Torney into evidence and will mark is as Exhibit 6 to this proceeding.