XY v. Housing Connections, 2012 HRTO 977

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

XY

Applicant

-and-

Housing Connections and City of Toronto

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Decision Date: May 15, 2012

Citation: 2012 HRTO 977

Indexed as: XY v. Housing Connections

APPEARANCES

XY, Applicant

Self-Represented

Housing Connections, Respondent

Gordon Steinberg, Representative

City of Toronto, Respondent

Andrea Denovan, Counsel

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 in housing on the basis of disability. In an earlier Interim Decision (2011 HRTO 1377), the applicant’s Request to Expedite was granted and the Tribunal determined that it was appropriate to refer to the applicant by the initials “XY”.

2The hearing in this Application has commenced and the applicant’s evidence has finished. On May 4, 2012, the third day of the hearing, and before the respondent Housing Connection’s witness began his testimony, the applicant requested for the first time that she wanted to record the hearing. She submitted that her request was to accommodate her learning disability and to give her an opportunity to review the evidence as she was having difficulty in processing some of the information during the hearing. She also stated that she wanted to rely upon the information in the recording as she plans to commence a civil action against one or more of the respondents and other parties based upon the evidence and documentation from the hearing.

3Both respondents objected to the recording being used in this fashion and being raised at this point in the hearing. Both sought to have restrictions placed upon the applicant’s usage of the recording. Further, the respondent Housing Connections submitted that it wanted additional time to reflect upon the applicant’s request to record the hearing, given that it had not been previously raised, and requested an adjournment so that it could consider her request and its position with respect to her request.

4The Tribunal issued an oral ruling as follows:

As the respondent Housing Connections has stated that it requires more time to consider the applicant’s request to tape record the proceedings, which she raised for the first time today, and given that the applicant has made this request as a form of accommodation and the respondent Housing Connections has stated that it has not had the ability to consider this request, at their request, I will adjourn today to give Housing Connections the ability to consider this issue. At the beginning of the next day, I will hear the parties’ submissions about the recording and restrictions being sought on the recording.

5The Tribunal also issued a Case Assessment Direction dated May 7, 2012, in which it stated that on the next scheduled hearing date, May 9, 2012, the parties should be prepared to discuss the following issues:

1. Whether the proceedings should be recorded, whether restrictions should be ordered by the Tribunal pertaining to the recording including disclosure, dissemination, copying and returning copies of the recordings to the Tribunal at the end of the hearing;

2. whether the hearing should be bifurcated such that the Tribunal first determine if the Application is or is not successful and if successful then the parties reconvene to address what remedies should be ordered;

3. in what format the respondents’ witnesses should testify, including testifying in-person or by telephone;

4. whether the final submissions should be presented in-person, orally over the telephone, or in writing;

5. what additional hearing days are required and whether they should be scheduled as full or half days, in-person or telephone; and

6. what, if any, further accommodation is required by the applicant.

6On May 9, 2012, the Tribunal heard the parties’ submissions on these issues.

Recording the hearing

The Applicant’s position

7The applicant’s position is as set out above. Further, she submits that if the tape recording is not permitted, that she either receive additional time between questions to review her materials or that a witness be recalled if she has additional questions that she forgot to ask. She realized that she would need to record the proceedings given the amount of time it took her to organize the exhibits during the second day of the hearing. She also claims that she is disadvantaged because she is not a lawyer and that the other parties have not requested any accommodation. She agrees that the information from these proceedings should be confidential and appeared to retract her statement that the recording would be used to ground a civil action against at least one of the respondents.

The Respondents’ positions

8Both respondents submit that they are disadvantaged by the timing of the applicant’s request because they did not have the benefit of the applicant’s evidence being recorded, yet she will have the respondents’ evidence recorded. Both respondents suggest, instead of tape recording, that the applicant bring another person with her to the hearing to take notes. Both respondents submit that the applicant is prohibited, in light of the Tribunal’s Rules of Procedure, from using the documentation and evidence obtained from a Tribunal proceeding for other purposes.

9Both respondents object to the applicant using a personal recording device to tape record the hearing and request, instead, that a court reporter be used with its costs borne by the applicant. In the alternative, they consent to the Tribunal using its recording device provided that various restrictions be placed upon the recording such as those ordered in Rocca v. Peel District School Board, 2009 HRTO 1041. Specifically, that the recording: not be removed from the Tribunal’s offices; be destroyed by all parties and the Tribunal after the hearing has concluded and a Decision issued or returned to the Tribunal; and be confidential for the purposes of this proceeding pursuant to an implied undertaking.

10Further, the respondent City of Toronto (“the City”) submits that despite its alternative position, set out above, it objects to the applicant recording at all and that the applicant did not earlier identify that she has a learning disability, and has not provided any medical documentation substantiating that she has one. Any request for accommodation should have been raised before her evidence, not at the conclusion of it. The City submits that the Tribunal should be concerned that the applicant’s requests are not an abuse of its processes, noting that if the confidentiality is breached, the City would have difficulties enforcing its violation or obtaining penalties. The City also submits that the applicant be given additional time between questions to review her materials, or ask that the answer be repeated rather than witnesses being recalled as that would give the applicant an opportunity to cross-examine twice.

Analysis

11The Tribunal’s Practice Direction on Recording Hearings states:

The Human Rights Tribunal of Ontario (the HRTO) has developed the following approach to recording hearings. The procedure outlined below provides general information only. It is not a rule within the meaning of the HRTO’s Rules of Procedure. The HRTO may vary the approach to recording hearings where appropriate.

The HRTO does not normally record or transcribe its proceedings. The HRTO will record a hearing when it is necessary to accommodate Code-related needs of the panel, a party or a representative who would otherwise be unable to participate in the hearing. Please contact the appropriate Registrar as soon as possible if you require accommodation.

Electronic recording of the hearing is subject to the discretion of the HRTO and to any terms set by the HRTO.

Self-recording and Transcription

Parties may record hearings using their own equipment and transcribe those recordings at their own expense with the consent of the panel, provided a copy of any recording or transcription is provided to the other parties and the HRTO. Such recordings or transcriptions do not form part of the HRTO’s record of proceedings including the record filed in respect of any application made under the Judicial Review Procedures Act.

Use of a Court Reporter

The HRTO may permit a party to have a court reporter to record the hearing at the party’s expense. Where the court reporter produces an official transcript the HRTO will require the party to provide copies to the panel and the other parties. Where an unofficial transcript is provided to a panel and the other parties it will normally be considered part of the HRTO’s record of proceedings and may be included in the record filed by the HRTO in respect of any application made under the Judicial Review Procedures Act.

12Rules 2.1, 3.3 and 3.7 of the Tribunal’s Rules of Procedure state:

2.1 Parties, representatives and witnesses are entitled to accommodation of Code-related needs by the Tribunal and should notify the Registrar as soon as possible if accommodation is required. The provisions of these Rules will be interpreted and applied in a manner that is consistent with the Human Rights Code.

3.3 Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

3.7 The Tribunal does not normally record or transcribe its proceedings.

13In this case, and seeing the applicant’s struggles with the exhibits during the second day of the hearing, I find it appropriate to allow the applicant’s request to record the hearing by using the Tribunal’s recording devices. The Tribunal will provide the parties, counsel and representative with the recording on computer disc. I find that the implied undertaking about the confidentiality of such recordings to be specifically set out in Rule 3.3 of the Tribunal’s Rules, as set out above.

14However, I also find it appropriate to place restrictions on the usage of the recordings, following Rocca, supra, at para. 3. Accordingly, I order:

1. No portion of the recording is to be played back at the hearing.

2. No portion of the recording is to be played to any person who is not a party, counsel or representative in this Application.

3. Any recording or transcripts of the recordings are understood not to be part of the record of the hearing.

4. Any recordings made are to be used solely for the conduct of the hearing, and no portion will be broadcast or posted publicly, or provided to anyone who is not a party, counsel or representative at the hearing. No transcript or purported transcript is to be provided to anyone who is not a party, counsel or representative at the hearing.

5. The Tribunal retains the right to halt the taping in the event that it causes delay or disruption, without hearing any further submissions on the matter.

6. The parties will return the computer disc to the Tribunal following the issuance of the final Decision.

Bifurcating the Hearing

The Respondents’ positions

15The City submits that the hearing should be bifurcated such that if a decision is issued by the Tribunal finding a violation of the Code that the hearing resume to hear the parties’ evidence and submissions on what remedies should be ordered. The City submits that it would be required to call additional witnesses with respect to the future compliance remedies that the applicant is seeking, specifically her suggestion that the City build a new building in which to house individuals with environmental sensitivities.

16As the applicant has already testified about the remedies she is seeking, the City submits that she could either rely upon her previous evidence or present new evidence about remedies she is seeking.

17The respondent Housing Connections does not oppose the City’s request to bifurcate.

The Applicant’s position

18The applicant opposes the City’s request stating that some of the remedies that she is requesting may no longer be available if the hearing is bifurcated.

Analysis

19In an earlier Case Assessment Direction dated January 23, 2012, and in arranging a conference call to address a number of preliminary issues, the Tribunal directed the applicant to be prepared to discuss the remedies, including public interest remedies, that she was seeking in the event that the Application is upheld. At a conference call held on February 3, 2012, the applicant agreed to provide an outline of the public interest remedies by February 29, 2012. The applicant subsequently provided an outline of the requested remedies and during the hearing, dated February 29, 2012, and testified about the remedies she is seeking if her Application is upheld.

20Given the above, I am concerned with the City’s suggestion that the hearing be bifurcated between liability and remedy particularly given that the Application has been scheduled as an expedited hearing.

21However, I do accept the City’s submissions that it will be required to present additional witnesses and extensive evidence in response to some of the remedies that the applicant is seeking if her Application is successful. Accordingly, I agree with the observation in Carasco v. University of Windsor, 2011 HRTO 1931 at para. 8 where the Tribunal stated: “It would not be a good use of the Tribunal’s or the parties’ resources to hear this evidence and argument unless and until such time as a finding of liability is made”.

22Accordingly, the hearing is bifurcated with respect to liability and the remedies that the applicant identified in her document entitled “Public Interest Remedies” dated February 29, 2012. Other remedies that the applicant is seeking, apart from those in her February 29, 2012 document, may continue to be addressed during the hearing and in the Decision.

The Format of the Respondents’ Witnesses

23During the hearing, it was agreed upon by the parties that the respondents’ witnesses testify in-person with the next witness being Ms. Moscovitz.

Final Submissions

24The parties submitted that they would not object to providing written submissions and it was agreed that how the final submissions would be presented and a timetable for such submissions could be addressed at a future hearing date.

Additional Hearing Dates

25At the hearing, the parties agreed on the following continuation dates: May 24 (1/2 day starting at 1:30 pm); June 4; June 6 (1/2 day from 9:00 am to 12:30 pm); June 13; June 20 and July 18, 2012. Under separate cover, the Tribunal will issue to the parties a Notice of Continued Hearing Dates.

Accommodations for the applicant

26The applicant states that she does not require any further accommodation at this time.