Mahant v. York University, 2011 HRTO 831

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edelgard Mahant

Applicant

-and-

York University

Respondent

-and-

York University Faculty Association

Intervenor

INTERIM DECISION

Adjudicator: Mark Hart

Date: April 28, 2011

Citation: 2011 HRTO 831

Indexed as: Mahant v. York University

WRITTEN SUBMISSIONS

Edelgard Mahant, Applicant ) Self-represented

York University, Respondent ) Richard Charney and ) Rachel Silver, Counsel

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.s.O. 1990, c. H.19, as amended (the Code) dated June 18, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on February 21, 2007.

2The purpose of this Interim Decision is to address the applicant’s request that her witnesses be permitted to testify by phone.

3By Interim Decision dated March 16, 2011, 2011 HRTO 542, I reviewed the applicant’s proposed witnesses and allowed her to call three witnesses who had evidence relevant to the matters in issue in this proceeding, namely Roy Christensen, Karen Foss and Dr. Hans Michelmann.

4By letter dated April 14, 2011, the applicant advised that Mr. Christensen and Ms. Foss were located in Ottawa and that Dr. Michelmann was in Saskatoon, and requested that these witnesses be permitted to testify by phone. The Tribunal sought submissions from the parties in response to this request.

5The respondent objects to the applicant’s witnesses being permitted to testify by phone. The respondent first objects on the basis that it would be prejudiced in the conduct of its cross-examinations of these witnesses if they were permitted to testify by phone.

6While there certainly are some witnesses where it may be important to have an in-person cross-examination for the purpose of assessing the witness’ demeanour, I do not believe that this is the case with these witnesses, in relation to the evidence that they are being proffered to provide and the nature of the issues before me. This is not a case where these witnesses are being called to testify to a different version of some specific event that contradicts the evidence of a respondent witness. Rather, these witnesses are being called to provide evidence as to their experiences with the applicant in the areas I have identified in my previous Interim Decision, including her experience in working with the EU Delegation, her interactions with diplomats, her teaching, and her scholarly expertise. While I may hear a different assessment of the applicant from these witnesses than was portrayed in the respondent’s evidence, I do not believe that it is necessary for me to hear these witnesses in person in order to be able to weigh their evidence.

7The respondent next raises the issue that if the witnesses are testifying by phone, there will be no representative of the Tribunal there to ensure that the witness is not reviewing notes or documents that are not before the Tribunal while giving their testimony. This is a legitimate concern, but one that is routinely addressed by this Tribunal when hearing a witness’ evidence by phone. It is common, after affirming the witness, to ensure that no such materials are before the witness when she or he is giving evidence. I appreciate that the Tribunal and the parties are taking the witness at her or his word that no such material is before her or him, but in my experience that has not proven to be a real impediment in the receipt of such evidence.

8The respondent further objects on the basis that the applicant could summons these witnesses and require them to appear at the hearing in Toronto on May 19, 2011. While this is true, I am mindful of the cost and inconvenience of requiring witnesses to travel to Toronto from Ottawa and Saskatoon to give their evidence in person, and in my view it is appropriate to weigh this cost against the added value, if any, of having these witnesses provide their evidence in person. Given the nature of their proposed evidence and of the matters at issue in this case, I do not believe that the minimal value of having these witnesses appear in person at the hearing outweighs such cost and inconvenience.

9Finally, the respondent raises a concern that the witnesses will not have a copy of the exhibits before them, and in the alternative seeks an order requiring the applicant to provide each witness with a copy of all exhibits if they are allowed to testify by phone. To date, I have marked seven exhibits to this proceeding. While that may not sound like a large number of exhibits, two of these exhibits are two volume sets of documents submitted by the respondent (for a total of four volumes) which consist largely of the application materials submitted by the applicant and six other candidates for the position at issue. These documents alone run to some 1200 pages. Also marked as exhibits are the Application, the Response, documents filed by the applicant, the respondent’s statement of additional facts and response to remedy, and the respondent’s witness statements, which comprise several hundred more pages of material.

10In my view, it makes little sense to require the applicant to make three copies of all of this voluminous material so that each witness testifying by phone has all of this material before her or him, when it is unlikely that much if any of this material will be addressed in examination or cross-examination. None of these witnesses were on the selection committee and are not being proffered to assess the relative merits of the various candidates. Rather, they are being called to provide evidence regarding rather narrow aspects of some of the matters considered by some members of the hiring committee in assessing the applicant’s qualifications and experience.

11If there is specific material from the exhibits that the respondent intends to review with any of these witnesses, the respondent is to so notify the Tribunal and the applicant, and provide an electronic copy of the specific documents from the exhibits that it intends to review with each witness. The respondent is directed to do so by no later than Friday, May 13, 2011. The applicant shall ensure that the relevant materials are forwarded to each witness prior to the hearing on May 19, 2011.

12Finally, the respondent has requested a copy of the CV for each of the applicant’s witnesses. The applicant has objected to providing this material, as she did not request it of the respondent’s witnesses and as under the Tribunal’s Rules a CV is only required in relation to an expert witness. While the applicant is correct that a CV is only required for an expert witness, any party nonetheless has the right to seek disclosure of arguably relevant documents. In my view, the CVs for these witnesses are arguably relevant to the evidence that they are being called to provide. The fact that the applicant did not request disclosure of this material for the respondent’s witnesses does not have a bearing on its arguable relevance in relation to her witnesses. Accordingly, the applicant is directed to disclose to the respondent’s counsel and file with the Tribunal a copy of the CVs of her three witnesses by no later than May 6, 2011.