HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gillian Smith
Applicant
-and-
Camis
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed As: Smith v. Camis
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and sex. The respondent has filed a Response denying the allegations in the Application.
2This matter was scheduled for hearing in Toronto on September 12, 2012. On September 6, 2012, the Tribunal received a Request for adjournment from the applicant because Dr. Patricia Francis, who had been summoned, was not available to attend the hearing. In an Interim Decision dated September 7, 2012, 2012 HRTO 1691, the Tribunal denied the applicant’s Request to adjourn and said that the hearing could proceed to at least hear the applicant’s evidence.
3On September 12, 2012, the Tribunal heard the evidence of the applicant. The Tribunal advised the parties that the hearing would be rescheduled to a date mutually convenient to the parties. The Tribunal advised the applicant’s representatives that it was their obligation to consult with Dr. Francis and to select a date that she was available to attend. The hearing is scheduled to resume on November 7, 2012, a date that was mutually agreed to by the parties.
4On October 25, 2012, the Tribunal received a Request for an Order During Proceedings seeking the following:
a. That the Tribunal order Dr. Francis to appear at the hearing on November 7, 2012; and
b. Alternatively, that the Tribunal “request such an order from the Superior Court”.
5The applicant has indicated that the respondent opposes this Request for order.
6For the reasons that follow, the applicant’s Request for Order is denied. In these circumstances it is not necessary that the respondent file any submissions.
The Law
7The authority and power of the Tribunal to compel the attendance of a witness at a hearing is pursuant to section 12 of the Statutory Powers and Procedures Act, (the “SPPA”), which states:
- (1) A tribunal may require any person, including a party, by summons,
(a) to give evidence on oath or affirmation at an oral or electronic hearing; and
(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal,
relevant to the subject-matter of the proceeding and admissible at a hearing.
(2) A summons issued under subsection (1) shall be in the prescribed form (in English or French) and,
(a) where the tribunal consists of one person, shall be signed by him or her;
(b) where the tribunal consists of more than one person, shall be signed by the chair of the tribunal or in such other manner as documents on behalf of the tribunal may be signed under the statute constituting the tribunal.
(3) The summons shall be served personally on the person summoned.
Fees and allowances
(3.1) The person summoned is entitled to receive the same fees or allowances for attending at or otherwise participating in the hearing as are paid to a person summoned to attend before the Superior Court of Justice.
Bench warrant
(4) A judge of the Superior Court of Justice may issue a warrant against a person if the judge is satisfied that,
(a) a summons was served on the person under this section;
(b) the person has failed to attend or to remain in attendance at the hearing (in the case of an oral hearing) or has failed otherwise to participate in the hearing (in the case of an electronic hearing) in accordance with the summons; and
(c) the person’s attendance or participation is material to the ends of justice.
(4.1) The warrant shall be in the prescribed form (in English or French), directed to any police officer, and shall require the person to be apprehended anywhere within Ontario, brought before the tribunal forthwith and,
(a) detained in custody as the judge may order until the person’s presence as a witness is no longer required; or
(b) in the judge’s discretion, released on a recognizance, with or without sureties, conditioned for attendance or participation to give evidence.
(5) Service of a summons may be proved by affidavit in an application to have a warrant issued under subsection (4).
(6) Where an application to have a warrant issued is made on behalf of a tribunal, the person constituting the tribunal or, if the tribunal consists of more than one person, the chair of the tribunal may certify to the judge the facts relied on to establish that the attendance or other participation of the person summoned is material to the ends of justice, and the judge may accept the certificate as proof of the facts.
(7) Where the application is made by a party to the proceeding, the facts relied on to establish that the attendance or other participation of the person is material to the ends of justice may be proved by the party’s affidavit.
Request for an Order compelling Dr. Francis to attend the hearing
8A witness who is personally served with a summons to witness and receives the appropriate conduct money is compelled to appear at the Tribunal to give evidence. Therefore, the Tribunal denies the applicant’s Request to issue an order to compel the attendance of Dr. Francis since there is no necessity and/or authority to issue such an Order.
Request for an Order that the Tribunal obtain a Bench Order from the Superior Court
9The applicant relies on sections 12(4) and 12(6) of the SPPA as authority for the Tribunal to request a bench order from the Superior Court. However, I note that in this case it is the applicant who seeks to have Dr. Francis testify at the hearing. In such circumstances, the applicant can bring her own application to the Superior Court pursuant to section 12(7) of the SPPA if she believes that she has met the preconditions of obtaining such an Order.
10I note, however, having reviewed the materials, that Dr. Francis only received $50.00 for her attendance, which does not appear to be the full amount she is owed as conduct money.
ORDER
11The applicant’s Request for Order is denied.
12However, I wish to caution Dr. Francis that there may be significant legal consequences for her refusal to attend the hearing and to give evidence if she has indeed been properly summoned. This includes the possibility that the applicant may seek to have her attendance enforced through a bench warrant. The Tribunal also has the authority to state a case to Divisional Court for contempt of its proceedings, when a properly summoned witness fails to attend a hearing without lawful excuse.
13I note that I have received no submissions from the parties with respect to making arrangements to have Dr. Francis give her evidence via telephone conference. However, it would require the cooperation of Dr. Francis to make such arrangements.
14Since Dr. Francis was served with the Request for order, and is an interested party for the purposes of this Request for Order, she will be sent a copy of this Interim Decision.
Dated at Toronto, this 26th day of October, 2012.
“Signed by”
Geneviève Debané
Vice-chair