Dr. Ahmed Abdallah v. Maple Leaf College of Business and Technology, 2012 HRTO 1695

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dr. Ahmed Abdallah Applicant

-and-

Maple Leaf College of Business and Technology Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price Date: September 7, 2012 Citation: 2012 HRTO 1695 Indexed as: Abdallah v. Maple Leaf College of Business and Technology

1This is an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2The purpose of this Interim Decision is to determine the applicant’s request that he be permitted to participate in the upcoming hearing of the Application by telephone.

BACKGROUND

3By Notice of Confirmation of Hearing dated December 9, 2011, the Tribunal initially scheduled this matter to be heard on June 21, 2012.

4On December 22, 2011, the applicant emailed the Tribunal that he would be unable to attend the hearing on June 21, 2012, because he would be working overseas on that date. The applicant also inquired at that time whether he would be permitted to participate in the hearing by telephone.

5By email dated December 28, 2011, the Tribunal informed the applicant that he was required to attend the hearing of the Application in person, and that he could make a timely request that the hearing be rescheduled if he was unable to attend on the scheduled date.

6The applicant did this and the hearing was rescheduled to September 20, 2012, on the agreement of the parties. On April 16, 2012, the Tribunal sent the parties a Notice of Confirmation of Hearing confirming that the hearing of the Application would take place on September 20, 2012 in Toronto.

7On September 4, 2012, the applicant emailed the Tribunal asking that he be permitted to participate in the September 20, 2012 hearing by teleconference. The applicant submits that the reason for his request is that he is presently employed overseas as a university professor.

8The respondent opposes the applicant’s request.

DECISION

9Rule 3.5 of the Tribunal’s Rules of Procedure provides that the Tribunal “may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate”.

10The Tribunal’s power to conduct electronic hearings, which includes hearings by telephone, is also subject to s.5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which provides that 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.

11In the circumstances of this case, I am not satisfied that it is appropriate to conduct the hearing of this matter by telephone.

12The ordinary expectation in hearings before the Tribunal is that participants, especially parties, make themselves available in person to testify and submit to cross-examination and to question other witnesses. Caster v. George Brown College, 2009 HRTO 1515; Pinkney v. Datex Billing Services, 2009 HRTO 1732. The Tribunal will sometimes permit witnesses to testify by telephone where the nature and extent of their evidence makes this appropriate. However, the Tribunal will generally not permit a witness to testify by telephone where the credibility of the witness is a significant issue, or where the evidence of the witness is extensive or key to the proceedings. Garofalo v. Cavalier Hair Stylists Shop, 2011 HRTO 907; Zeividavi v. Catholic Immigration Services, 2011 HRTO 406. This is so even when the reason for the request to testify by telephone is that the witness is living and/or working outside Ontario: Caster, supra; Pinkney; supra; Zeividavi, supra; Rumble v. TRW Kelsey-Hayes, 2010 HRTO 2106; Ketchum v. Serco DES, 2011 HRTO 1240.

13In this case, the credibility of the applicant and other witnesses is a significant issue. This is a matter involving conversations between the applicant and staff and students of the respondent and the Tribunal will be required to make factual determinations based in large part on its assessment of the credibility of the witnesses’ oral evidence. The applicant’s presence at the hearing is necessary in order to ensure a fair opportunity for cross-examination of the applicant and to allow the Tribunal to fairly assess the credibility of all of the witnesses.

14The applicant’s request that he be permitted to participate in the hearing by telephone is denied.

15The applicant is directed to confirm to the Tribunal and the respondent in writing within seven (7) days of the date of this Interim Decision that he will be in attendance at the hearing on September 20, 2012. If such confirmation is not received, the Tribunal may consider the applicant to have abandoned the Application and dismiss it accordingly.