Hitchcock v. Lafarge Canada Inc., 2012 HRTO 490

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stanley Hitchcock

Applicant

-and-

Lafarge Canada Inc. and Christopher White

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: March 8, 2012

Citation: 2012 HRTO 490

Indexed as: Hitchcock v. Lafarge Canada Inc.

WRITTEN SUBMISSIONS

Stanley Hitchcock, Applicant ) Ian A. Wilson, Counsel

Lafarge Canada Inc. and ) Daniel R. McDonald, Counsel

Christopher White, Respondents )

INTRODUCTION

1This Application was filed on September 14, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and involves allegations of discrimination on the basis of disability in employment. This Interim Decision addresses the applicant’s request to have his physician testify at the hearing by teleconference.

Background

2In his Application, the applicant alleges that he was subjected to discrimination when the respondents failed to accommodate his disability-related absence, placed unreasonable requirements on him regarding the provision of medical documentation in relation to his absence, and subsequently terminated his employment. The applicant alleges that, prior to terminating his employment on October 24, 2008, the respondents required that he provide a medical certificate from his doctor supporting his absence by no later than the close of business on October 23, 2008; however, he explained to the respondents that he was not able to see his doctor until November 6, 2008.

3In their Response to the Application, the respondents assert that the applicant had a number of issues related to his performance and attendance, and that the applicant never made them aware of any issue requiring accommodation. The respondents further allege that his past record and his failure to provide reasonable medical evidence for his absences, in accordance with the collective agreement, gave rise to the termination of his employment. They assert that at no time did the applicant ever submit a medical certificate clarifying a need for any accommodation. They also assert that the applicant could not contact them because he was incarcerated for a variety of criminal offences.

THE APPLICANT’S REQUEST

4An in-person hearing in this matter commenced on January 26, 2012, and a second hearing date was scheduled for March 7, 2012. By letter dated February 15, 2012, the applicant’s counsel indicated that the applicant’s physician is available to provide evidence by way of a telephone conference call on March 7, 2012. By letter dated February 16, 2012, the respondents submitted that the applicant ought to be required to substantiate the basis of his request to have a material witness testify by telephone. In the circumstances, the Tribunal provided the parties with an opportunity to make written submissions with respect to the applicant’s physician testifying at the hearing by teleconference, as opposed to in person.

The parties’ positions

5In support of his request to have his physician testify by teleconference, the applicant submits that, given where his physician practices and resides, travel to and from the hearing in Toronto is approximately 300 kilometres, and that requiring his attendance will result in his physician missing an entire day of treating his patients and billing OHIP. The applicant also refers to the costs borne by him in having his physician attend the hearing in Toronto, and submits that there is no certainty his physician will be reached on March 7, 2012, given that the applicant’s cross-examination has not begun. He submits that this may result in his physician having to attend on multiple occasions.

6With respect to the issues in the Application, the applicant submits that the “dominant issue in the proceeding involves a ‘perceived’ disability”, and that the applicant will be calling evidence related only to the validity of the documents at Tabs 4, 5, 6, 17 and 23 of the applicant’s documents, and to confirm the truth of a letter at Tab 13 stating that the applicant’s physician was on vacation “from October 17 to October 26, 2008”.

7The respondents submit that the applicant seeks the extraordinary right to have his physician testify by telephone, but presents no extraordinary circumstance in support of his request. They submit that the essential premise of the applicant’s arguments in support of having his physician testify by telephone is the apparent financial cost of his attendance. They submit that economic concerns are insufficient to warrant the exceptional right to have a witness testify by telephone, particularly where the witness is central to the applicant’s case as in the present circumstances.

8The respondents also submit that the practicalities of the circumstances must be considered. They submit that the ability of counsel to take a witness through dense medical documentation and other evidence is severely hindered when the witness and counsel are not in the same room, and that the respondents should not be disadvantaged simply because the applicant finds it inconvenient to produce his witness.

9The respondents raise a further concern, submitting that there is a likelihood that the applicant has the ability and “know how” to effectively alter documents using graphic technologies. As one example, the respondents attached to their submissions a driver’s licence bearing the name “Stanley Hitchcock”. They submit that the applicant worked for the organizational respondent for several years under this alias, and it was only by way of criminal proceedings that the respondents learned that the applicant’s real name is Stanley Mercer. The respondents also submit that the applicant already attempted to enter documentary evidence at the first hearing date in this matter that was “rejected by the Tribunal as false.” I understand the respondents to be referring to the applicant entering copies of his calendar into evidence at the hearing on January 26, 2012, one page of which appears to have discrepancies with the original document that he also produced for examination at the hearing, in that the original document contains some additional entries.

10The respondents submit that without the applicant’s physician attending in person, the respondents and the Tribunal will have no way of knowing whether the documentation in front of the applicant’s physician during his testimony is the same as that produced to the respondents. Furthermore, they submit that, in the absence of the applicant’s physician attending in person, there is no way of knowing whether the applicant’s physician is even the individual actually testifying. They submit that it is only through evidence given in person that procedural safeguards can be preserved.

11In correspondence dated February 29, 2012, the applicant’s counsel indicated that the applicant would be in custody until at least March 13, 2012, and requested that the hearing be adjourned. By Case Assessment Direction dated March 2, 2012, the Tribunal adjourned the March 7, 2012 hearing date.

12In his correspondence dated February 29, 2012, the applicant also asserts that the respondents continue to unjustifiably smear his credibility and that of those around him, including his counsel, by “preposterously” asserting that the applicant’s physician cannot be identified unless he is physically present, and that the documentation presented to his physician may not be the same as that produced to the respondents. The applicant takes issue with, among other things, the implication that his physician’s original notes and records may have been altered in some fashion by his counsel’s office and then provided to the respondents. He also denies that he has a false driver’s licence altered using graphic techniques.

DECISION

13The Tribunal’s Rules of Procedure are to be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of matters before it (Rule 1.1). Rule 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. I also note, however, that s. 5.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, provides that a tribunal shall not hold an electronic hearing (including by telephone) if a party satisfies the tribunal that holding an electronic rather than an oral hearing (a hearing in person) is likely to cause the party significant prejudice.

14While the Tribunal has allowed witnesses to testify by telephone conference in certain circumstances, depending upon the nature and extent of their evidence, it will generally not do so where the credibility of the witness is a significant issue, or where the evidence of the witness is extensive or key to the proceedings. See Garofalo v. Cavalier Hair Stylists Shop, 2011 HRTO 907, at paras. 26-28, and Zeividavi v. Catholic Immigration Services, 2011 HRTO 406, at para. 15.

15In general, I do not agree with the respondents’ submissions that extraordinary circumstances are required to support a request to have a witness testify before the Tribunal by teleconference, or that economic concerns are insufficient to warrant having a witness testify by telephone.

16In any event, the proposed evidence of the applicant’s physician appears to be relevant to central issues in dispute in this Application. In addition, the copied medical documents that the applicant proposes to tender through his physician include rather lengthy and detailed handwritten and typed notes. The respondents have also indicated that they may wish to tender additional evidence through the applicant’s physician in cross-examination.

17In the circumstances, it appears that it would be impractical to have the applicant’s physician examined and cross-examined by teleconference, particularly having regard to the documentary evidence that the parties propose to tender through the applicant’s physician, and any concerns that may arise in relation to those documents at the hearing. In addition, the proposed evidence of the applicant’s physician appears to be rather extensive and key to the proceedings.

18While it is unfortunate that attending the hearing in person may require the applicant’s physician to be away from his practice for a longer period of time than if he testified by teleconference, in my view, considering all of the factors, it would neither be appropriate nor fair, just and expeditious to permit the applicant’s physician to testify by teleconference in the circumstance of this case.

19The applicant’s request to have his physician testify by teleconference at the hearing is denied.

20With respect to the applicant’s concern that his physician may have to attend on more than one occasion, the Tribunal notes that, pursuant to Rule 1.7(j) of the Tribunal’s Rules, the Tribunal may determine and direct the order in which evidence will be presented, in order to provide for the fair, just and expeditious resolution of any matter before it.