Larisa Ilchenko v. Algonquin Careers Academy, 2012 HRTO 702

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Larisa Ilchenko

Applicant

-and-

Algonquin Careers Academy

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: April 5, 2012

Citation: 2012 HRTO 702

Indexed as: Ilchenko v. Algonquin Careers Academy

Written submissions

Larisa Ilchenko, Applicant ) On her own behalf

Algonquin Careers Academy, Respondent ) Des Soye, Represenataive

1On January 30, 2012, the applicant filed a Request for an Order During Proceedings (“Request”) asking that her doctor be permitted to testify by telephone conference call. She also asks that the respondent be directed to summons a former employee to testify at the next scheduled hearing date.

2For the reasons that follow, the Request is granted in part. Dr. Guardee may testify at the hearing by way of telephone conference call. The remainder of the Request is denied.

OVERVIEW

3The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination on the basis of ethnic origin and disability in the provision of goods, services or facilities. In essence, the Application relates to the applicant’s expulsion from the respondent’s paralegal program. She alleges that the respondent failed to accommodate her disability and that it treated her differently from other students on the basis of her ethnic origin.

4The respondent denies the allegations of discrimination. It states that the applicant was expelled because of poor academic performance, for handing in work that was not her own, and because she could not meet the requirements of a probationary period. The respondent denies that the applicant identified any physical disability or need for accommodation until March 2009. It states that it then provided appropriate accommodation; including giving the applicant an opportunity to rewrite assignments on which she has performed poorly.

5The Tribunal begain hearing this matter in January, 2012. At the outset of the hearing, the parties agreed to my proposal that the respondent’s evidence be heard first. When the hearing began in the afternoon of January 23, 2012, I heard the evidence of Carrie Lynn Barkley. On January 24, 2012, I heard from the respondent’s remaining witnesses, Audrey Kirk and Des Soye. I also heard evidence from Patricia Bellinger, who testified pursuant to a summons served upon her by the applicant.

6At the close of the hearing, the Tribunal set continuation dates in May 2012. At the hearing and in a Case Assessment Direction (“CAD”) dated January 31, 2012, I explained that the remaining hearing dates would serve to hear the applicant’s oral evidence, the evidence of her remaining proposed witnesses, and closing submissions.

7At the close of the hearing on January 24, 2012, the applicant asked that her doctor be permitted to testify by telephone conference. At the hearing and in the January 31 CAD, I directed the applicant to make a written request in this regard and I set out a timetable for the respondent to respond.

REQUEST THAT THE DOCTOR TESTIFY

8As I have indicated, the applicant asks that her doctor be permitted to testify at the hearing. The respondent objected to the Request because the applicant had not identified which of the several doctors she consulted she wished to call as a witness. The respondent also objected to the witness on the grounds that no witness statement has been provided and that the doctor’s name did not appear in the applicant’s list of witnesses.

9The applicant filed additional material, which she also provided to the Respondent. She provided the name of the proposed witness. She explained that, while she consulted a number of doctors within a particular clinic, all of her medical information would be in her treating physician’s medical files. She suggests that Dr. Gardee can speak to issues, generally, as her regular treating physician.

10The respondent reiterated its objection. It states that Dr. Gardee did not write any of the medical notes the applicant provided to the respondent. It also states that Dr. Gardee’s name does not appear on any of the applicant’s proposed witness lists.

11It is not entirely clear to me, based on the materials filed by the parties, that Dr Gardee’s proposed evidence would be of assistance to the Tribunal in determining the liability issues raised in proceeding. He does not appear to have drafted any of the medical notes the applicant provided to the respondent in support of her requests for accommodation. Further, it is not clear how he could provide useful evidence in regards to the notes taken by other physicans, even if they appear in a medical file he possesses.

12While the applicant also argues that Dr Gardee can speak to her health, generally, during the time she was a student with the respondent, it is not clear to me how this evidence will be of assistance to the Tribunal. This is because one of the key issues in the proceeding is whether, to the extent that she had health-related concerns, she communicated these to the respondent.

13I note, however, the applicant’s argument that Dr. Guardee can speak to the effect of her expulsion on her health. Given this, I think it is appropriate for Dr. Guardee to testify in this proceeding. At the hearing, I may provide direction as to the scope of his evidence, in particular regarding the scope of any proposed evidence concerning the opinions or advice provided to the applicant by other physicians.

14While I accept that the applicant has not complied with the Tribunal’s Rules, which require her to disclose the names of proposed witnesses in advance of the hearing, it does not appear that the respondent is prejudiced by this failure or that this would warrant excluding the doctor’s evidence. In reaching this conclusion, I am influenced by the limited scope of Dr.Guardee’s expected evidence and by the fact that respondent may have an opportunity to call reply evidence to address any new information that becomes available through Dr. Guardee’s testimony.

15Accordingly, if the applicant wishes to call Dr. Guardee as a witness, she may do so, provided that, within one week of the date of this Interim Decision, she delivers to the respondent and files with the Tribunal a statement of his expected evidence pursuant to Rule 17 of the Tribunal’s Rules of Procedure. The statement of Dr. Guardee’s expected evidence must specify to what extent, if any, Dr. Guardee was directly involved in identifying and recommending accommodation measures for the applicant during her studies. It must also specify whether he provided any medical documentation to this effect. If Dr. Guardee intends to rely on any clinical notes and records or any other documents that have not been disclosed to the respondent and filed with the Triubnal, the applicant must attach these documents to the statement of expected evidence and deliver them to the respondent and the Tribunal. At the next day of hearing, the Tribunal may hear submissions on the admissibility of any such document.

TESTIMONY BY TELEPHONE

16The applicant asks that Dr. Guardee testify by telephone. The respondent objects on the grounds that this would interfere with its right to fully cross-examine him.

17As I explained in Zeividavi v. Catholic Immigration Services, 2011 HRTO 406, participants in a Tribunal proceeding, especially parties, are ordinarily expected to be available in person to testify and submit to cross-examination. See also Haskins v. Religious Hospitaliers of Hotel Dieu of St. Joseph of the Diocese of London, 2010 HRTO 1550 and Pinkney v. Datex Billing Services, 2009 HRTO 1732.

18The Tribunal has, however, allowed witnesses to testify by telephone conference call in certain circumstances, depending upon the nature and extent of their evidence and whether it is expected to engage significant issues of credibility: see, for example, Hoberg v. National Hockey League, 2010 HRTO 1805, White v. 529204 Ontario, 2011 HRTO 1814 and CAW - Canada v. Presteve Foods, 2010 HRTO 79. However, the Tribunal will not generally allow testimony by telephone conference where the credibility of the witness is a significant issue or where that witness’ evidence is extensive or key to the proceedings. See Zeividavi, supra.

19In this case, given the limited scope of Dr. Guardee’s evidence, I am prepared to allow him to give his evidence by telephone. At this stage of the proceeding, it is not apparent to me that Dr. Guardee’s credibility will be a signiciant issue, particularly in light of the limited scope of his evidence. Once Dr. Guardee has testified in-chief and depending on the nature of the evidence he provides, it may be appropriate to hear submissions from the respondent as to whether there are significant credibility issues and whether the cross-examination should take place in-person. However, I am not satisfied at this stage of the proceedings that allowing Dr. Guardee to testify by telephone will impede the respondent’s ability to cross-examine him.

20For all of these reasons, Dr. Guardee may provide his evidence by telephone conference call on one of the schedule hearing dates.

SUMMONS

21The applicant has also asked that the respondent be directed to summons a former employee to testify at the hearing. The applicant has not provided any details or submissions in support of this aspect of her Request.

22There does not appear to be any basis to support an order directing the respondent to summons a particular witness. Having already summonsed a witness in the context of this proceeding, the applicant is aware that, if she wishes to have a summons issued, she may contact the Registrar. Information regarding summons is set out at Rule 3 of the Tribunal’s Rules of Procedure.

23At the hearing, the Tribunal may address whether the evidence of this or any other proposed witness is relevant or necessary in the circumstances.

SUMMARY

24The applicant’s Request that Dr. Guardee be permitted to testlify by telephone conference is granted provided that the applicant provides with the Tribunal’s direction, as set out at paragraph 15.

25The applicant’s Reques that the respondent be directed to summons a former employee is denied.