Cohen v. Law School Admission Council, 2013 HRTO 1854

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Cohen

Applicant

-and-

Law School Admission Council

Respondent

INTERIM DECISION

Adjudicator: Ruth Carey

Date: November 5, 2013

Citation: 2013 HRTO 1854

Indexed as: Cohen v. Law School Admission Council

WRITTEN SUBMISSIONS

Law School Admission Council, Respondent

Michael J. Torrance, Counsel

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 goods, services and facilities because of disability. It involves the administration of the Law School Admission Test (“LSAT”).

2This Application came before the Tribunal for two days of hearing on October 2 and October 3, 2013. It is scheduled to reconvene for one further day of hearing.

3By the end of the hearing day on October 3, 2013, the respondent had completed its examination-in-chief of its witness, Dr. Kim Dempsey; the applicant had not yet commenced his cross-examination. The respondent indicated at the hearing that it would be requesting Dr. Dempsey’s further testimony be given via teleconference. The applicant said he would oppose such a request so I directed the respondent to file and deliver a Request for Order During Proceedings (“RFOP”) if it wished to pursue an order permitting Dr. Dempsey to finish her testimony via teleconference. On October 16, 2013, the respondent filed and delivered its RFOP. The applicant did not file a response.

4The stated reason for the request in the RFOP is that the witness lives in the United States and must travel a considerable distance to attend an in-person hearing. She also has a busy schedule. For example, Dr. Dempsey is available to testify in person on January 17, 2014, but only available via teleconference on January 16, 2014. (The Tribunal has reserved both of those dates for the hearing until the request in the RFOP is resolved.) The RFOP also states that it is unlikely her evidence will give rise to credibility issues. Her testimony concerns the process the respondent goes through when it receives requests for accommodation by prospective test takers, and how it responded to the applicant’s request for accommodation.

5For the reasons stated below, the RFOP is granted. Dr. Dempsey will be permitted to finish giving her testimony via teleconference which means the hearing will reconvene and conclude on January 16, 2014, and the alternative date of January 17, 2014, will be cancelled.

ANALYSIS

6As stated in Pinkney v. Datex Billing Services, 2009 HRTO 1732, at para. 6:

The ordinary expectation is that participants, especially parties, make themselves available in person to testify and submit to cross-examination and also be present in person to question other witnesses. There have been circumstances where the Tribunal has permitted witnesses to participate by telephone where the extent and nature of their testimony made such arrangements fair, just and expeditious.

7As observed in Ivanescu v. Credit Valley Hospital, 2012 HRTO 1211 at paras. 17-18:

This is consistent with the Tribunal’s power, pursuant to Rule 3.5 of the Tribunal’s Rules of Procedure, to “conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate.” The Tribunal’s power to conduct telephone hearings is also informed by s. 5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), which states:

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 para. 5 of Pinkney, above, the Tribunal held that the burden is on the party opposing an electronic hearing to show that it may be significantly prejudiced if the hearing is held by telephone. This is because of the wording in s. 5.2(2) of the SPPA set out in the quote above. In this instance, the only person who might oppose the RFOP on the basis of prejudice is the applicant but he chose not to respond to it.

9It seems to me that the most significant factor to consider in this instance is the nature of the dispute between the parties. There is little dispute about most of the key facts on which the Application is based; rather the primary questions to be resolved on this Application concern the law with respect to the accommodation process. This means Dr. Dempsey’s credibility is not likely to be in issue. Therefore, it would appear that allowing the balance of her testimony to be given by teleconference will not result in prejudice to the applicant.

ORDER

10The Tribunal makes the following order:

a. Dr. Dempsey may finish her testimony via teleconference when the hearing reconvenes on January 16, 2014;

b. The alternative hearing date of January 17, 2014, is cancelled.