Clarke v. Coutts Information Services Limited, 2012 HRTO 1339

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Clarke Applicant

-and-

Coutts Information Services Limited Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: July 6, 2012 Citation: 2012 HRTO 1339 Indexed as: Clarke v. Coutts Information Services Limited

WRITTEN SUBMISSIONS

Richard Clarke, Applicant ) Self-represented

Coutts Information Services ) Sari Springer, Counsel

Limited, Respondent )

INTRODUCTION

1The purpose of this Interim Decision is to deal with the respondent’s request that the Application be dismissed, and that one of its witnesses be allowed to testify electronically if the hearing goes ahead.

BACKGROUND

2On January 4, 2012, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing was scheduled for July 10 and 11, 2012, in St. Catharines.

3On June 27, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) which alerted the applicant to the fact that he had failed to comply with his obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents he intends to rely upon no later than 45 days prior to the hearing. The CAD directed the applicant to file the materials required under Rules 16 and 17 within one week of the date of the CAD, and warned him that if he failed to follow this direction, his Application may be dismissed as abandoned.

REQUEST TO DISMISS

4On July 5, 2012, the respondent filed a Request for an Order During Proceedings (“RFOP”) which requested that the Tribunal dismiss the Application as abandoned because the applicant did not comply with the direction in the CAD to comply with Rules 16 and 17.

5On June 27 and July 5, 2012, the applicant sent the Tribunal two brief e-mails, which confirmed that he would be attending the hearing. Both e-mails were copied to the respondent as per the Tribunal’s Rules. On June 27, 2012, the applicant also sent the Tribunal a longer e-mail, which was not copied to the respondent, contrary to the Tribunal’s Rules. The e-mail stated that he would not be calling any witnesses aside from himself, and that he would not be disclosing any further documents.

6The respondent’s Request to dismiss the Application as abandoned is denied. The applicant has confirmed that he will be attending the hearing, and provided a reasonable explanation for his apparent non-compliance with Rules 16 and 17.

REQUEST FOR A WITNESS TO TESTIFY ELECTRONICALLY

7On June 20, 2012, the respondent filed an RFOP which requested that one witness be allowed to testify by telephone or video. The respondent stated that the witness is in England and is unable to travel to Canada for the hearing because of circumstances beyond his control. The applicant did not file a Response to this Request, and the time for doing so has now passed.

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. The Tribunal’s power to conduct electronic hearings is also informed by s. 5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which states that a 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 applicant has not argued that allowing the witness to testify by telephone or video will cause him significant prejudice. As such, the Tribunal will allow the witness to testify by speaker phone.

10I understand from the Tribunal’s Registrar that the current hearing location in St. Catharines may not have adequate facilities for using a speaker phone. As such, the hearing may be changed to a different location in St. Catharines. Alternatively, if the parties are available to attend the hearing at the Tribunal’s Hearing Centre in Toronto, which has more sophisticated facilities, they should contact the Tribunal’s Registrar immediately.

ORDER

11The Tribunal makes the following orders and direction:

1. The respondent’s request to dismiss the Application as abandoned is denied.

2. The respondent’s request that a witness be allowed to testify by speaker phone is granted.

3. The parties shall contact the Tribunal’s Registrar immediately if they are available to attend the hearing in Toronto.