Tamra Baker v. Twiggs Coffee Roasters, 2013 HRTO 2010

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tamra Baker

Applicant

-and-

Twiggs Coffee Roasters

Respondent

INTERIM DECISION

Adjudicator: Ruth Carey

Date: December 4, 2013

Citation: 2013 HRTO 2010

Indexed as: Baker v. Twiggs Coffee Roasters

WRITTEN SUBMISSIONS

Tamra Baker, Applicant

Jamie McGinnis, Counsel

Twiggs Coffee Roasters, Respondent

Joseph D. Kennedy, 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 employment because of sex. The applicant alleges her employment with the respondent was terminated because she was pregnant.

2The hearing of this Application commenced in North Bay on November 1, 2013.

3At the hearing the respondent stated that it was not going to call as a witness one of the individuals listed on its witness list. Instead it wished to rely on her affidavit. I explained to the respondent that in such circumstances the affidavit might not be admitted into evidence or alternatively might be given little or no weight. I also indicated that because of the witness’s importance to the issues in the Application, I was prepared to adjourn the hearing at the applicant’s request if the applicant wished to call the witness herself for the purposes of cross-examination. Applicant’s counsel then indicated she did wish an adjournment so the applicant could call the witness herself. As a result, I granted the adjournment request and on November 4, 2013, issued a Case Assessment Direction (“CAD”) confirming the directions given at the hearing including the following:

At the reconvening of the hearing, the applicant shall call as a witness [name of witness redacted] for the purpose of conducting cross-examination on her affidavit.

4The hearing is scheduled to reconvene in North Bay on December 18, 2013.

5On November 22, 2013, the applicant filed a Request for Order During Proceeding (“RFOP”) requesting that the Tribunal order the respondent to pay the witness conduct money for the witness’s attendance. The stated basis for this request is that it would be unfair for the applicant to bear the cost of calling a witness originally put forward as a proposed witness by the respondent. The RFOP submits: the witness was named by the respondent as a witness it intended to call; the respondent persists in its desire to have her affidavit entered into evidence; the cost of calling the witness is prohibitive given the applicant’s circumstances; and the witness’s appearance is imperative as her credibility is a material issue in the proceeding. On December 3, 2013 the respondent filed a Response to a Request for an Order (“the respondent’s response”) with the Tribunal objecting to the applicant’s RFOP.

6Disbursements such as witness fees are an item of costs. It is well established in the Tribunal’s jurisprudence that it does not have the authority to award costs. See for example: M.O. v. Ottawa Catholic District School Board, 2011 HRTO 1174; and MacDonald v. Downtown Health Club for Women, 2009 HRTO 1647. As a result, the RFOP must be denied.

7I would note that in the respondent’s response to the RFOP it indicates it would not object to the witness being called via telephone. As a result, if the applicant decides not to call the witness in person, the Tribunal will permit the applicant to call her via teleconference call. Alternatively, the applicant may elect to forgo calling the witness at all and confine herself to oral submissions at the hearing as to the admissibility of the witness’s affidavit and the weight to be given to it.

ORDERS AND DIRECTIONS

8The Tribunal makes the following orders and directions:

a. The applicant’s RFOP is denied;

b. The applicant shall be permitted to call the witness in question via teleconference;

c. As soon as possible and no later than December 13, 2013, the applicant should inform the Tribunal and the respondent of her intentions with respect to calling the witness.