HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kenia Avendano
Applicant
-and-
Jacobson and Jacobson Mercantile Incorporated and Ken Georgopoulos
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Avendano v. Jacobson and Jacobson Mercantile Incorporated
WRITTEN SUBMISSIONS
Kenia Avendano, Applicant
John No, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex and sexual solicitations.
2This Interim Decision addresses the applicant’s request to have two witnesses testify by videoconference.
REQUEST FOR AN ORDER DURING PROCEEDINGS
3On August 14, 2013, the applicant filed a Request for an Order during Proceedings (“RFOP”). The RFOP states that the applicant intends to summons two witnesses, Kirby Kieswatter and Stephanie Reyes, but she has been unable to obtain mailing addresses for these two potential witnesses, only telephone numbers and email addresses. In an earlier Case Assessment Direction the Tribunal clarified that the Tribunal’s Rules require that a summons to a witness be served on a witness personally.
4The RFOP requests that Ms. Kieswatter be allowed to testify by videoconference as the applicant understands that Ms. Kieswatter resides in Vancouver and the applicant cannot afford to pay for her to fly to Toronto to testify. It appears the applicant is also requesting that Ms. Reyes be allowed to testify by videoconference although she does not indicate where Ms. Reyes may be living or why she would not be able to testify in person.
5The respondents have not filed a response to the applicant’s request.
6The decision on whether to allow a witness to testify by teleconference or videoconference rests with the Tribunal. The Tribunal has generally not allowed testimony by teleconference where the credibility of the witness is a significant issue or where the witness’ evidence is either extensive or key to the proceedings. See Zeividavi v. Catholic Immigration Services, 2011 HRTO 406. As noted in Zeividavi while the demeanour of a witness is not the sole basis for determining credibility, it may be one of a series of helpful indicators.
7The applicant’s request that Ms. Kieswatter be allowed to testify by videoconference is granted. While Ms. Kieswatter’s credibility will be an issue I am of the view that videoconferencing can address many of the concerns about demeanour that are raised in relation to a witness testifying by teleconference. Ms. Kieswatter’s location and the expected nature of her testimony are further circumstances that contribute to my decision to allow her to testify by videoconference.
8The applicant’s request that Ms. Reyes be allowed to testify by videoconference is denied. The applicant has not established why Ms. Reyes could not appear in person at the hearing.
9Videoconferencing requires the requesting party to find an appropriate videoconferencing facility (and such facilities are limited) and to arrange for the videoconference link-up to the Tribunal. The applicant will be required to arrange for the videoconferencing facility to contact the Tribunal at least one week prior to the hearing date in order that a test be carried out to confirm that a videoconference connection can be established. The applicant or videoconference facility can contact the Tribunal’s Registrar about when the test will be conducted and to arrange for the exchange of required contact information.
10Ms. Kieswatter will not be permitted to testify by teleconference in the event videoconferencing cannot be arranged.
Dated at Toronto, this 10th day of September, 2013.
“Signed by”
Eric Whist
Vice-chair