Harper v. Hospital for Sick Children, 2013 HRTO 1982

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deanna Harper

Applicant

-and-

Hospital for Sick Children

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: November 29, 2013 Citation: 2013 HRTO 1982 Indexed as: Harper v. Hospital for Sick Children

WRITTEN SUBMISSIONS

Hospital for Sick Children, Respondent

Robert Weir, Counsel

Introduction

1This Interim Decision addresses the Request for an Order During Proceedings (“RFOP”) filed by the respondent dated November 22, 2013. In the RFOP, the respondent requested that the Tribunal dismiss the Application as abandoned or, in the alternative, exclude the materials filed by the applicant and refuse to permit the applicant from calling Dr. Aly Rahim as a witness. In the further alternative, the respondent requested that the applicant not be permitted to have Dr. Rahim testify by affidavit.

Request to Dismiss/Exclude Applicant’s Materials

2The respondent requested that the Application be dismissed, or in the alternative that the applicant’s materials be excluded, due to the date on which they were filed.

3The Notice of Hearing advised the parties that they were required to make the disclosure required under Rules 16 and 17 of the Tribunal’s Rules of Procedure (“Rules) by November 1, 2013.

4By Case Assessment Direction (“CAD”) dated November 5, 2013, the Tribunal directed the applicant to make the disclosure required under Rules 16 and 17 within 7 days of the date of the CAD or her Application might be dismissed as abandoned. By CAD dated November 13, 2013, the Tribunal provided more specific directions to the applicant regarding her disclosure obligations. It directed her to file her materials within 7 days of the date of the CAD or her application would be dismissed as abandoned.

5On November 12, 2013, the applicant filed a bound copy of her materials at the Tribunal’s hearing center. This copy was not processed immediately as the applicant was advised that parties must provide two hard copies of their materials, at least one of which is unbound. The applicant filed an unbound copy of her Applicant’s Documents Brief on November 20, 2013. She also filed her Supplemental Applicant’s Documents Brief that same day.

6Since all of the applicant’s materials were filed within 7 days of the Tribunal’s November 13, 2013 CAD, the Tribunal denies the respondent’s request that it dismiss the Application. For the same reason, it also denies the respondent’s alternative request to exclude the applicant’s materials.

Dr. Rahim’s Testimony

7The respondent submits that Dr. Rahim should not be permitted to testify by affidavit since she would not be available for cross-examination.

8The Tribunal has held that it will only allow a witness to testify by affidavit in the most exceptional circumstances. See Fish v. National Steel Car Limited, 2012 HRTO 1930 at para. 12. This is especially the case where the witness is expected to provide evidence on contested issues. The only reason the applicant provided for why Dr. Rahim would not testify in person was because she is not available during the month of December. In my view, this does not amount to an exceptional circumstance that would permit Dr. Rahim to testify by affidavit.

9However, under the Tribunal’s Rules the Tribunal has the power to permit witnesses to testify by telephone. The applicant is directed to advise the Tribunal whether Dr. Rahim would be available to testify by telephone at any point on December 16, 17, or 18, 2013. If so, the Tribunal will receive submissions from the parties as to whether it is appropriate for the Tribunal to hear Dr. Rahim’s evidence by telephone.

ORDER

10The Tribunal orders as follows:

a. The respondent’s request to dismiss the Application is denied. Its request to exclude the applicant’s materials is also denied.

b. By December 4, 2013, the applicant must advise the Tribunal in writing, with a copy to the respondent, whether Dr. Rahim would be available to testify by telephone at any point on December 16, 17, or 18, 2013.

c. If Dr. Rahim is available to testify on one of those dates, the applicant shall advise the Tribunal of the date and time during which Dr. Rahim would be available to testify. She shall also provide written submissions supporting a request for Dr. Rahim to testify by telephone. These submissions must also be filed by December 4, 2013.

d. If the applicant advises that Dr. Rahim is available to testify at any point on December 16, 17, or 18, 2013, the respondent may provide written responding submissions on whether or not Dr. Rahim should be permitted to testify by telephone. These submissions must be filed by December 9, 2013.