Curtis Hazel v. 624091 Alberta Ltd., o/a R & N Maintenance, 2013 HRTO 435

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Curtis Hazel Applicant

-and-

624091 Alberta Ltd., o/a R & N Maintenance Respondent

INTERIM DECISION

Adjudicator: Kathleen Martin Date: March 14, 2013 Citation: 2013 HRTO 435 Indexed as: Hazel v. 624091 Alberta Ltd.

APPEARANCES

Curtis Hazel, Applicant Maryth Yachnin, Counsel

624091 Alberta Ltd., Respondent David Cameletti, 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 on the basis of citizenship, disability and race and related grounds. The Application is scheduled for hearing on March 21 and 22, 2013. This Interim Decision issues directions regarding the applicant’s request to provide his and another witness’ evidence by telephone and the continuation of this matter.

Background

2The applicant is a resident and citizen of Trinidad. The Application arises out of the applicant’s employment as a temporary worker in Canada while part of the federal government’s Pilot Project for Occupations Requiring Lower Levels of Formal Training. While employed as a worker through this project, the applicant alleges that he was discriminated against in various ways including in his rate of pay, in being denied safety equipment and health insurance, in being fired because he was injured on the job and in being denied recall in the subsequent year.

3A Response has been filed denying the allegations. Among other things, the respondent denies that the applicant was injured while working and that an injury played any role in the respondent’s decision to terminate and not recall him to employment in the next year.

4On February 4, 2013, the applicant filed a Request For Order During Proceedings asking that he and two of his witnesses be permitted to testify by telephone as a form of accommodation (the Request was subsequently amended to one witness). The applicant states that he would have preferred Skype video conferencing but understands that the Tribunal does not permit the same. The applicant bases his request on the fact that he has no status in Canada as a migrant worker and is unable to attend the hearing in person. Thus the applicant submits there are Code-related grounds justifying his request to participate by telephone.

5Initially, the respondent did not oppose the Request within the 14-day period permitted for a response. The Registrar contacted the parties for the purpose of scheduling a conference call to address the Request. On March 6, 2013, the respondent filed a response opposing the Request.

6On March 13, 2013, a conference call was held and I heard further submissions from the parties.

7The applicant’s representative indicated that she was sceptical that the applicant could obtain a visitor’s visa to attend the hearing given that he would not have the resources required to do so, although she acknowledges that this option has not been fully explored. The applicant relies on material from Citizenship and Immigration Canada to highlight the difficulty in attending in person. This material sets out a number of conditions a person must meet to obtain a tourist visa for Canada including satisfying an immigration officer that the applicant has ties that would take the applicant back home and that the applicant has enough money for his stay. The material sets out the processing time required to obtain a visa: 50 days for an online application and 114 days for a paper application.

8If the Request is denied, the applicant’s representative asks that she be granted an adjournment for the purpose of further exploring the option of getting the applicant to Canada and the availability of video conferencing in Trinidad as another form of accommodation.

9The respondent expresses concern about the applicant not having exercised due diligence before today to explore attending in person or the availability of video conferencing. The respondent remains opposed to a hearing by teleconference and states that it is opposed to video conference. The respondent does not consent to the adjournment but states that if an adjournment is granted, it should not be long, some effort should be made to get the applicant to attend in person, and if that fails, then other alternatives should be explored.

DECISION

10Having considered all of the submissions made, I deny the Request at this time and adjourn the hearing. While I appreciate the respondent’s concern about the lack of due diligence, I am not convinced it would be fair, just and expeditious in all of the circumstances to deny the adjournment. At this time, the applicant does not have a right to enter Canada in order to attend the hearing and thus I find that in this particular case, this justifies an adjournment, particularly given the further directions I make concerning the applicant’s Request.

11The Tribunal’s general approach to participation at hearings is to require that the participants, especially parties, be available in person to testify and submit to cross-examination and also to be present in person to question other witnesses. The need for in-person evidence is important particularly where there are issues of credibility. However, there may be circumstances where the Tribunal will permit testimony by telephone or some other manner such as video conferencing where it is fair, just and expeditious to do so. In addition, a need for Code-related accommodation would also be seriously considered (see Caster v. George Brown College, 2009 HRTO 1515 at para. 5).

12At this time, there is insufficient information before me to conclude that the applicant is unable to attend in person or cannot attend without there being significant hurdles to his participation. By contrast, given the time to obtain a visa, which is unchallenged, I find that the applicant is unable to attend on the hearing dates next week.

13In the circumstances, I decline the Request to participate by telephone in the hearing next week subject to the applicant’s right to renew his Request at a later date. In the interim, the applicant is required to look into whether or not he can obtain a visitor’s visa, and if he cannot, or if there are significant barriers to doing so, the applicant shall investigate whether there is a facility to participate by video conference from Trinidad at a video conferencing facility which is compatible with the Tribunal’s system. The applicant may consult with the Registrar as to the Tribunal’s system. The applicant shall provide a written update of his efforts and either confirm his ability to attend in person or set out his request for accommodation to participate by videoconference (or otherwise if not available) with detailed reasons by May 13, 2013.

14The Tribunal directs:

• The hearing scheduled for March 21 and 22, 2013 is cancelled.
• The applicant and respondent shall advise the Tribunal in writing about their interest in mediation/adjudication on March 21, 2013, by March 18, 2013. Subject to the parties’ agreement to the same, the mediation portion of the mediation/adjudication shall proceed on March 21, 2013.
• By May 13, 2013, the applicant shall provide a written update to the Tribunal on whether or not he has or can obtain a visitor’s visa to enable him to participate in person and if he is unable to do so, detailed reasons as to why not; and a written update of the options for providing his testimony by video-conference at a video conferencing facility in Trinidad which is compatible with the Tribunal system. The applicant may consult with the Registrar as to the Tribunal’s system.
• By May 27, 2013, the respondent may file any response to the applicant’s submissions.

15A copy of the Mediation/Adjudication Agreement is attached to this Case Assessment Direction should the parties wish to participate in this process on March 21, 2013.