Ahmad Zeividavi v. Catholic Immigration Services, 2011 HRTO 406

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ahmad Zeividavi

Applicant

-and-

Catholic Immigration Services

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: February 24, 2011

Citation: 2011 HRTO 406

Indexed as: Zeividavi v. Catholic Immigration Services

Written submissions

Ahmad Zeividavi, Applicant ) Kate Sellar, Counsel

Catholic Immigration Services, Respondent ) Porter Heffernan, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The matter has been set down for a one-day hearing in Ottawa.

2Counsel for the applicant has asked that the applicant and his witnesses be permitted to testify by telephone. The respondent objects to this Request.

3The purpose of this Interim Decision is to determine the applicant's request.

FACTUAL OVERVIEW

4In essence, the applicant alleges that the respondent refused to provide him with settlement support and housing services because he is blind. The applicant alleges that the respondent's staff told him and his girlfriend that they could not assist him because of his disability.

5The respondent filed a Response in which it denies the allegations of discrimination. It states that the applicant was denied services because the respondent had not received authorization to accept him in accordance with an agreement with Citizenship and Immigration Canada.

6The parties agree that the applicant and his girlfriend attended at the respondent's premises on June 20, 2009, and that they requested services for the applicant. As the applicant's first language is not English, his girlfriend translated the communications between the applicant and the respondent's staff.

7There is a factual dispute as to the content of the June 20, 2009 conversation. The applicant's girlfriend states that the respondent told her it could not provide service to the applicant because he was blind. The respondent denies stating that the applicant's disability was a factor in its decision to deny services. It states that its staff explained that the applicant could not spend the weekend there, but that he could return to make further inquiries the following Monday, June 22, 2009.

8There is also a dispute about what occurred on June 22, 2009. The applicant states that he re-attended at the respondent's premises and was again denied services. The respondent states that the applicant did not re-attend at any time after June 20, 2009.

REQUEST TO TESTIFY BY TELEPHONE

9The applicant asks that he and his witnesses be permitted to give evidence by telephone conference call. The applicant intends to testify with the assistance of an interpreter. He also seeks to call as witnesses his girlfriend and Jim Siemens, whom he says contacted the respondent on his behalf. The applicant states that he has permanently settled in British Columbia and that travel for him and his witnesses to Ottawa for the hearing would be prohibitive.

10The respondent objects to the Request. It states that credibility is the central issue in this case and that live evidence is essential both for the respondent to have a fair opportunity to cross-examine and for the Tribunal to weigh the credibility of all of the witnesses. The respondent argues that it will be significantly prejudiced if the applicant and his witnesses are permitted to testify by telephone conference.

11Rule 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.

12Section 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.

13The applicant accepts that the credibility of the witnesses will be a key issue at the hearing of this matter. He argues, however, that credibility cannot be gauged solely through a witness' demeanour. Other factors, including the consistency of the witness' evidence with the probabilities that surround the existing conditions are equally important: see Faryna v. Chorny [1952] D.L.R. 354 (B.C.C.A.).

14The applicant states that the Tribunal has allowed testimony by telephone in the past and that it would be appropriate for it to do so in these circumstances. He relies on Hoberg v. National Hockey League, 2010 HRTO 1805 and CAW - Canada v. Presteve Foods, 2010 HRTO 796.

15While the Tribunal has allowed witnesses to testify by telephone conference call in certain circumstances, depending upon the nature and extent of their evidence, it will not generally do so where the credibility of the witness is a significant issue or where that witness' evidence is extensive or key to the proceedings.

16For example, in CAW, supra, the Tribunal allowed witnesses who had already testified in person at the hearing to be recalled by telephone conference call. In that case, there was no objection or suggestion of prejudice: this was a process agreed to by all the parties.

17In Hoberg, supra, while the Tribunal agreed to hear the evidence of a witness by telephone conference call, the scope of the witness's evidence was limited and his credibility does not appear to have been a significant issue. Moreover, it is not clear that the respondent in that case objected to the evidence being provided by telephone conference call.

18The 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 and submit to cross-examination and also to be present in person to question other witnesses.

19This is particularly the case where, as here, the credibility of the witnesses will be key. While I accept that the demeanour of a witness is not the sole basis for determining credibility, it may be one of a series of helpful indicators. I am concerned that, in 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 without the applicant and his girlfriend's presence at the hearing.

20I note that the only reason submitted by the applicant for seeking to participate by teleconference or videoconference is the expense and inconvenience associated with travelling to the hearing.

21In my view, the applicant and his girlfriend's presence at the hearing is necessary to ensure a fair opportunity for cross-examination and to allow the Tribunal to fairly assess the credibility of all of the witnesses.

22As I have indicated, the applicant has also asked that Jim Siemens be allowed to testify by telephone. The respondent objects to this Request. At this stage of the proceedings, I am unable to evaluate the nature and extent of Mr. Siemens' evidence and I cannot determine whether it would be appropriate to allow him to testify by telephone.

23The Request to allow the applicant and his girlfriend to participate in the hearing by telephone conference is denied. The Tribunal may provide further direction regarding the testimony of Mr. Siemens once the parties have exchanged detailed statements of fact.

24I am not seized of this matter.