HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pooya Pakarian Applicant

-and-

University of Toronto, University Health Network, Robert Chen, Michael Angel, and Aimee Nelson Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: February 17, 2011 Citation: 2011 HRTO 348 Indexed as: Pakarian v. Chen

APPEARANCES

Pooya Pakarian, Applicant ) Self-represented University of Toronto, Respondent ) Sari L. Springer, Counsel Robert Chen, Aimee Nelson and ) Elizabeth Grace, Counsel Michael Angel, Respondents ) University Health Network, Respondent ) Ranjan K. Agarwal, Counsel

INTRODUCTION

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated October 16, 2009, alleging discrimination, which is denied by the respondents. In a previous Interim Decision, 2010 HRTO 457, the Tribunal made a number of orders including directing that the matter be scheduled for two initial days of hearing.

ISSUE AND POSITION OF THE PARTIES

2On November 9, 2010, the applicant sent an email to the Registrar, copied to the parties, stating the following:

Canada is not my country of residence, and I have limitations in terms of visa and my financial status to move to Canada for the hearing. I need accommodation of my limitations for my participation in the hearing. Please consider that my visa limitation to come to Canada is a consequence of my nationality, which is protected by the laws enforced by the HRTO. Please advise me on how I can participate in the hearing considering my limitations.

3On November 25, 2010, the respondent University of Toronto filed a Request for Order During Proceedings seeking an Order that the applicant be compelled to attend the hearing in person and opposing the use of electronic technology, such as teleconferencing or videoconferencing, in these circumstances. The other respondents all filed submissions in support of the request.

4The applicant did not file responding submissions, though I have considered his position, as I understand it to be, based on his correspondence to the Tribunal and comments made during a case management teleconference held on November 30, 2010.

5In support of the Request, the respondents argue that the applicant’s personal attendance at the hearing to give evidence and to face cross-examination is necessary in order to ensure the fairness of the hearing. They submit that significant factual differences exist between the parties’ accounts, and that credibility assessments of oral evidence will be necessary in order for the Tribunal to make findings and reach a decision. They further argue that they will be significantly prejudiced in their ability to challenge the applicant’s allegations should he be permitted to testify by telephone.

6The applicant takes the opposite view of the importance of oral evidence; he argues that his case will be based almost entirely on documentary evidence (email correspondence). He plans to call no additional witnesses. In these circumstances, it appears that the need for credibility assessments will be minimal. The applicant resides in Iran and argues that the cost of travelling for the hearing is prohibitive and unnecessary. Additionally, the applicant states that he has no right to enter Canada and is uncertain whether he could obtain a visitor’s visa, though there is no indication that he has in fact applied for one, so this is purely speculative.

ANALYSIS AND DECISION

7Part IV of the Code deals with the Tribunal and proceedings before it. Section 41 provides that Part IV “and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that will facilitate fair, just and expeditious resolutions of the merits of the matters before it”. The discretion to determine its process is left with the Tribunal.

8Rule 3.5 of the Tribunal’s Rules provides that the Tribunal may conduct hearings in person, in writing, by telephone or by other electronic means as it considers appropriate. Rule 1.1 states that the Tribunal’s Rules will be liberally interpreted and applied to facilitate and accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it. Further, section 5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA) provides that a tribunal “shall not hold an electronic hearing if a party satisfies the Tribunal that holding an electronic hearing rather than an oral hearing is likely to cause the party significant prejudice.”

9It appears to me in these circumstances that permitting the use of electronic technology would promote an expeditious resolution of the merits of this matter. However, I must also consider whether it would be fair and just, in the light of all surrounding factors. The respondents rely mostly on the need for in-person cross-examination of the applicant, as a fundamental element of a fair hearing. Without the opportunity to cross-examine the applicant in person, the respondents argue they will be prejudiced in their ability to fully challenge the applicant’s evidence. The applicant maintains that his case will be proven on the strength of documentary evidence, and that his personal attendance is both unnecessary and a hardship.

10I agree that the fairness of the process must account not only for prejudice to the respondents, but also hardship caused to the applicant, considering the need to ensure equal access to the Code’s enforcement mechanisms. This does not mean that the applicant should be relieved of all burdens related to enforcing his rights. All applicants, whether Canadian residents or not, can expect to incur some burden in accessing the Code and the Tribunal process. The weight of that burden is a factor to consider in determining what is procedurally fair, just and expeditious in the circumstances.

11The respondents directed my attention to many cases in which the Tribunal denied requests by applicants to hold electronic hearings, on account of their relocation outside of Ontario. See, for example: Pinkney v. Datex Billing Services, 2009 HRTO 1732; Haskins v. Religious Hospitaliers of Hotel Dieu of St. Joseph of the Diocese of London, 2010 HRTO 1550; Caster v. George Brown College, 2009 HRTO 1515; and Rumble v. TRW Kelsey-Hayes, 2010 HRTO 2106. In such cases, the hardship, if any, claimed by the requesting parties were travel costs, where the distances were significantly shorter than in this case. They also hinged on important oral evidence.

12I am persuaded that the circumstances here warrant a different result than in the cases relied upon by the respondents. In Caster, supra, at para. 5, the Tribunal recognized that it must seriously consider any accommodation dimension to an electronic hearing request. In a system that aspires to ensure access to justice, I agree that the Tribunal must be mindful of how its processes may differentially affect various classes of people, including non-citizens and non-residents.

13I am not persuaded that the respondents would be prejudiced by allowing the applicant to present his case electronically during the first stage of the hearing. Further, considering all the factors and surrounding circumstances, I am not persuaded at this point that compelling the applicant’s personal attendance at the hearing is required.

14The applicant will neither give oral evidence nor be subject to cross-examination at this stage. The parties remain in dispute as to whether there is the need for cross-examination of the applicant. Until and unless it becomes evident that the applicant’s personal attendance is necessary, both for cross-examination and to ensure a fair hearing, he shall be permitted to appear by teleconference.

15The purpose of the initial hearing is for the applicant to present his case. Upon the completion of the applicant’s case, the Tribunal will determine whether there is a basis to proceed to hear the respondents’ evidence. The parties will be invited to make oral argument with respect to this question.

16Regarding the applicant’s evidence in particular, his position is that he will establish his case mostly through documentary evidence. The most fair, just and expeditious way of proceeding, given that he will not personally attend, is for the applicant to present his complete case in-chief, in writing, prior to the hearing.

17The applicant is directed to deliver to the respondents, and file with the Tribunal, copies of all documents he intends to specifically rely on and make reference to 15 days prior to the hearing. These documents should be organized chronologically (in date order) with consecutively numbered pages. The applicant must also file, at the same time, a Statement of Evidence In-chief (“Statement”), of up to a maximum length of 20 pages. This will comprise his direct personal statements in support of his allegations. He will be required to solemnly affirm the truth of its contents at the hearing. The Statement should include express reference to any documents or emails he is relying on. The Statement should provide information that clearly and directly addresses the following questions:

1. Did any of the respondents, individually or together, subject the applicant to differential treatment on the basis of his background or place of origin? If so, what was the specific action or omission and how was it connected to his background or origin?

2. Did any of the respondents subject the applicant to sexual harassment within the meaning of the Code? If so, what were the specific incidents and how did they constitute sexual harassment?

18The applicant is not required at this point to give evidence as to the effects of the alleged discrimination or the remedy sought. The respondents are not required to file any evidence or submissions in advance of the hearing.

19At the hearing, the respondents will be given the opportunity to make submissions as to whether the applicant’s evidence discloses a prima facie case on the basis of uncontested evidence. They may also address the issue of the need for cross-examination, with reference to any contested facts that they believe depend on credibility assessments.

20Two days of hearing are not necessary for this preliminary review of the applicant’s evidence and legal argument with respect to the prima facie issue. One day only will be scheduled.

Dated at Toronto, this 17th, day of February, 2011.