Cohen v. Law School Admission Council, 2013 HRTO 899

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: May 24, 2013

Citation: 2013 HRTO 899

Indexed as: Cohen v. Law School Admission Council

WRITTEN SUBMISSIONS

David Cohen, Applicant

Self-represented

Law School Admission Council, Respondent

Joan Van Tol, 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 order is in response to two Requests for Order During Proceedings (RFOP) filed by the applicant, dated April 16, 2013 and May 1, 2013. Both contain requests concerning scheduling of one of the applicant’s expert witnesses.

3Notice of Confirmation of Hearing was mailed to the parties on February 28, 2013. The hearing is scheduled to be held on October 2 and 3, 2013. E-mail correspondence filed with the RFOPs indicate one of the applicant’s proposed expert witnesses will be in Qatar on those dates but is prepared to make himself available to testify via teleconference on October 3, 2013 between the hours of 9 a.m. and 12 p.m. EST. The RFOPs request that this witness be permitted to testify via teleconference and in the alternative, that the hearing be adjourned to the last week of January, 2014.

4The only response to the RFOPs from the respondent was an e-mail saying it consented to adjourn the entire hearing.

5The Notice of Confirmation of the Hearing specifically states that requests for rescheduling are to be made within fourteen days of issuance of the Notice. Requests for adjournment after the fourteen day time limit are dealt with in accordance with the Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments” available on the Tribunal’s web site. It says in part:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

6The RFOPs do not cite any exceptional circumstances for adjourning the hearing; rather they indicate the applicant does not want to adjourn the hearing unless his expert witness is not permitted to testify via teleconference. Therefore, and pursuant to the Practice Direction, the consent of the respondent to adjourn the hearing is not relevant and the hearing will not be adjourned.

7With respect to the request for the witness to testify by teleconference, the Tribunal does, on occasion, permit witnesses to provide evidence in such a manner. As this witness is being tendered as an expert, issues of credibility are not likely to arise; and given that the respondent did not object to the requested order, “Dr. J” will be permitted to testify by teleconference. Given the time difference involved it also is reasonable to schedule his evidence to be heard on October 3, 2013 between the hours of 9:30 .m. and 12:30 p.m. EST.

8The RFOP dated May 1, 2013 also requests that the Tribunal schedule a specific time for the applicant’s second expert witness to testify in order to minimise the amount of time the applicant must pay that person to attend. No specific time is proposed. In the absence of a proposed specific time from the applicant, I do not believe it is appropriate for the Tribunal to select one for him as absent an order to the contrary from the Tribunal he has the right to call his evidence and witnesses in the order of his choice.

9The applicant is reminded of the obligation in Rule 17.3 of the Tribunal’s Rules to deliver to the respondent and file with the Tribunal a copy of any expert witness’ written report, or full summary of proposed evidence, and curriculum vitae, with his witness list no later than forty-five days prior to the hearing.

10The RFOP also includes a request for production of: proof of payments made by the applicant to the respondent; and the names of all of the individuals who took the LSAT test on February 8, 2010 at the same location and time as the applicant.

11The legal test for production of documents is not high. In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal stated at paragraphs 8 and 9:

The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra at para 41.

12The Application seeks as a remedy the return of fees paid to the respondent by the applicant so all documents pertaining to the amounts paid are arguably relevant and should be disclosed.

13With respect to the request for the names of other people who were taking the LSAT test on February 8, 2010 at the same site as the applicant, the request shall be denied. It would appear the applicant wants the names so he can contact them in order to identify potential witnesses. In the circumstances of this case and given the nature of the allegations, the prejudicial impact on the privacy of the individuals involved outweighs the probative value of its disclosure.

ORDER

14The Tribunal orders the following:

a. The hearing shall proceed as scheduled on October 2 and 3, 2013;

b. The applicant’s witness, “Dr. J”, may testify via teleconference on October 3, 2013 between 9 a.m. and 12 p.m. EST subject to any future rulings by the Tribunal with respect to relevance and admissibility of his proposed evidence; and

c. By June 28, 2013 the respondent shall deliver to the applicant a copy of all documents within its possession related to the applicant’s payments to the respondent.

d. All other aspects of the RFOP are denied.

15I am not seized of this matter.