Nathaniel Cohen v. Synergex Corporation, 2013 HRTO 164

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nathaniel Cohen

Applicant

-and-

Synergex Corporation

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: January 30, 2013

Citation: 2013 HRTO 164

Indexed as: Cohen v. Synergex Corporation

1This is an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), alleging discrimination with respect to employment because of disability. In particular, the applicant alleges that the respondent employer terminated his employment because he took a disability-related leave from work. The respondent denies the applicant’s allegations. It contends that it terminated the applicant’s employment during his probationary period because of the applicant’s work performance.

2The purpose of this Interim Decision is to determine the applicant’s request that he be permitted to participate in the upcoming hearing of the Application by telephone; and to address the applicant’s objection to the respondent’s ability to call Kevin Daniels as a witness in this matter.

REQUEST TO PARTICIPATE IN HEARING BY TELEPHONE

3On June 28, 2012, the Tribunal sent the parties a Notice of Confirmation of Hearing confirming that the hearing of the Application would take place on February 22, 2013, in Toronto.

4The applicant has filed a Request for an Order during Proceedings asking that he be permitted to participate in the February 22, 2013 hearing by teleconference (“the Request”). The applicant submits that the reason for his request is that he is presently employed in Israel. The applicant submits that he cannot attend the hearing in person because he cannot leave his work and he cannot afford to travel to Canada for the hearing.

5The respondent has not filed a response to the Request.

6Rule 3.5 of the Tribunal’s Rules of Procedure provides that the Tribunal “may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate”.

7The Tribunal’s power to conduct electronic hearings, which includes hearings by telephone, is also subject to s.5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which provides that the Tribunal shall not hold an electronic hearing if a party satisfies the Tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice.

8In the circumstances of this case, I am not satisfied that it is appropriate to conduct the hearing of this matter by telephone.

9The ordinary expectation in hearings before the Tribunal is that participants, especially parties, will make themselves available in person to testify and submit to cross-examination and to question other witnesses. The Tribunal will sometimes permit witnesses to testify by telephone where the nature and extent of their evidence makes this appropriate. However, the Tribunal will generally not permit a witness to testify by telephone where the credibility of the witness is a significant issue, or where the evidence of the witness is extensive. Garofalo v. Cavalier Hair Stylists Shop, 2011 HRTO 907; Zeividavi v. Catholic Immigration Services, 2011 HRTO 406. This is so even when the reason for the request to testify by telephone is that the witness is living and/or working outside Ontario: Caster v. George Brown College, 2009 HRTO 1515; Pinkney v. Datex Billing Services, 2009 HRTO 1732; Zeividavi, above; Rumble v. TRW Kelsey-Hayes, 2010 HRTO 2106; Ketchum v. Serco DES, 2011 HRTO 1240.

10At the time the Request was initially made, it was not altogether clear whether the credibility of the applicant’s evidence would be a significant issue at the hearing of the Application. This was due largely to the sparse nature of the Response to the Application and the fact that the parties had yet to provide the Tribunal with the documents upon which they sought to rely at the hearing of the Application, a list of the witnesses they intended to call, or a summary of their witnesses’ anticipated evidence.

11I attempted to gain a better understanding of whether the applicant’s credibility would be an issue in the hearing by directing the respondent (in a December 7, 2012 Case Assessment Direction) to provide further particulars of the alleged problems with the applicant’s work performance. However, the respondent did not comply with that direction. Moreover, although documents submitted by the respondent in mid-January 2013 indicated a desire on the part of the respondent to call at least one witness to contradict the applicant’s evidence on a key point (i.e. Kevin Daniels), it continued to be unclear whether such witness would be located and called by the respondent to testify at the hearing.

12Accordingly, I convened a conference call in this matter on January 24, 2013, to address the Request and to clarify whether the respondent would be calling any witnesses at the hearing that might contradict the applicant and/or put his credibility in issue.

13During the January 24, 2013 teleconference, the respondent indicated that it had located its intended witness, Kevin Daniels, and that it intended to call Mr. Daniels to testify at the February 22, 2013 hearing. In addition, the respondent’s representative, David Aiello, indicated that he also had been involved in supervising the applicant during his employment and intended to testify at the upcoming hearing.

14In the circumstances, it is clear that the credibility of the applicant is likely to be a significant issue in this case. In particular, I note that the respondent alleges that the applicant’s employment was terminated because the applicant was not a good cook and he worked very slowly. The respondent further contends that its chief communications officer at the time, Kevin Daniels, spoke to the applicant on a number of occasions during the applicant’s employ about the alleged deficiencies in his work performance. The applicant disputes the respondent’s evidence on the above points. Among other things, the applicant contends that he never received any negative feedback about his work performance while in the respondent’s employ.

15In order to determine the issues in this case, the Tribunal will likely be required to make factual determinations based in large part on its assessment of the credibility of the witnesses’ oral evidence. Among other things, the Tribunal will likely be required to determine the credibility of the applicant’s and the respondent’s witnesses’ evidence regarding the applicant’s work performance and/or whether the respondent ever criticized the applicant’s work performance during the course of his employment. In my view, the applicant’s presence at the hearing is necessary in order to allow the Tribunal to fairly assess the credibility of the witnesses.

16The applicant’s request that he be permitted to participate in the hearing by telephone is denied accordingly.

WITNESSES AND WITNESS STATEMENTS

17Pursuant to the Tribunal’s Rules of Procedure, the parties were required to exchange with one another and to file with the Tribunal the documents they intended to rely upon at the hearing of the Application, lists of their intended witnesses and a summary of their witnesses’ intended evidence by no later than January 8, 2013.

18On January 8, 2013, the applicant submitted the documents he intended to rely upon at the hearing. However, he did not provide a list of his intended witnesses or a summary of their anticipated evidence. The respondent did not provide any of the required materials by the January 8, 2013 deadline.

19Accordingly, in a January 10, 2013 Case Assessment Direction, I directed both parties to comply with their outstanding obligations pursuant to Rules 16.2 and 17.1 of the Tribunal’s Rules of Procedure by no later than January 17, 2013.

20In response to the January 10, 2013 Case Assessment Direction, the applicant emailed the Tribunal to state that he intended to testify at the hearing in accordance with the allegations contained in his Application. In addition, the applicant sought an extension of time for filing a list of any other witnesses he might wish to call and a summary of their intended evidence to February 5, 2013.

21On January 15, 2013, the respondent wrote to the Tribunal to state that it wishes to call Kevin Daniels, its former Chief Communications Officer, to testify as to alleged problems with the applicant’s work performance. The respondent also provided certain additional particulars about the alleged problems with the applicant’s work performance. As noted above, the respondent indicated during the January 24, 2013 conference call that it also wishes to call its representative, David Aiello, to testify at the hearing of the Application.

22During the January 24, 2013 conference call, the respondent consented to the applicant’s request for an extension of time for the filing of his witness list and witness statements. Accordingly, I extended the applicant’s deadline for the filing of a list of any additional witnesses he intends to call and a summary of their intended evidence to February 5, 2013.

23The applicant has no objection to the respondent’s representative, Mr. Aiello, testifying at the hearing of the Application. However, he objected during the January 24, 2013 conference call to the respondent calling Kevin Daniels to testify. The basis for the applicant’s objection is that the respondent did not comply with the Tribunal’s Rules of Procedure, which required the respondent to provide notice that it intended to call Mr. Daniels as a witness by January 8, 2013. That is true. However, the applicant was unable to identify any prejudice flowing from the fact that the respondent did not identify Mr. Daniels as a witness until January 15, 2013 (i.e. one week after the deadline established by the Tribunal’s Rules). In the absence of any such prejudice, in my view, it would not be appropriate to preclude the respondent from presenting potentially relevant evidence in its defence at the hearing of the Application. In the circumstances, the respondent will be permitted to call Mr. Daniels as a witness to attest to the allegations that the respondent has made.

24During the January 24, 2013 conference call, the applicant asked that the respondent provide a more detailed witness statement for Mr. Daniels. This request was granted on consent during the conference call and the respondent was directed to provide a more detailed witness statement for Mr. Daniels to the applicant and the Tribunal by January 31, 2013. I also directed the respondent to provide a more detailed witness statement for Mr. Aiello by January 31, 2013 if the materials the respondent has provided thus far do not fully summarize Mr. Aiello’s intended evidence.

REQUEST FOR ADJOURNMENT

25During the January 24, 2013 conference call, the applicant indicated that he might seek an adjournment of the February 22, 2013 hearing after consulting with legal counsel. As I stated during the conference call, the applicant is advised to review the Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments” before requesting an adjournment of the hearing. In the event that the applicant does intend to request an adjournment of the hearing, he should make such request to the Tribunal as soon as possible. The Tribunal will consider any adjournment request if and when it is filed.

26The Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments” is available on its website, www.hrto.ca.