Corbett v. Sguassero, 2013 HRTO 92

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jacquie Corbett

Applicant

-and-

Rino Bruno Sguassero

Respondent

INTERIM DECISION

Adjudicator: Kathleen Martin Date: January 17, 2013 Citation: 2013 HRTO 92 Indexed as: Corbett v. Sguassero

WRITTEN SUBMISSIONS

Jacquie Corbett, Applicant Mindy Noble, Counsel

Rino Bruno Sguassero, Respondent No one appearing

Introduction

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 housing on the basis of disability and sex. This Interim Decision addresses a Request for Order During Proceedings filed by the applicant for an order that her doctor be permitted to testify by teleconference (the “Request”) as well as providing directions regarding the hearing.

BACKGROUND

2The Application arises out of the applicant’s tenancy at an apartment owned by the respondent.

3The applicant commenced living at the apartment in 1997. On or about April 1, 2010, the respondent became owner of the six-unit building. The applicant alleges that the respondent was rude and disrespectful to her and called her derogatory terms which she alleges was based on her sex and disabilities. Further, the applicant alleges that she asked the respondent to install safety grab bars for support and safety because of her disabilities (which are identified) and that the respondent did not comply with her request. Instead, the applicant alleges that the respondent made other inappropriate remarks, harassed her and ultimately served her with an eviction notice.

4A Response has been filed. Apart from a “rebuke” of “any hint of disrespect suggested in the allegations”, the Response is limited to a complaint about the applicant’s conduct and the reasons why the applicant was evicted (which the respondent appears to assert were for legitimate reasons including the applicant’s abuse of him and the “disruption of the peace and quiet along with the potential danger of their lifestyle to the [other] tenants”).

5On December 7, 2012, the applicant filed the Request. The applicant asks that her doctor who authored the medical note given to the respondent in support of her request for safety grab bars be permitted to testify by teleconference call. The applicant states that her doctor’s evidence is not extensive and his credibility is not a significant issue.

6On the same date, the applicant also filed her disclosure (the documents she seeks to rely on and her witness statements). The disclosure includes a two-page medical report detailing the history of the applicant’s conditions and the doctor’s reasons for writing the medical note provided to the respondent.

7The respondent did not file his materials as required under Rules 16 and 17 or a Response to the Request within the time frame permitted under the Rules.

8On January 2, 2013, the Tribunal issued a Case Assessment Direction directing the respondent to file a response to the Request and requiring that the respondent immediately file its materials as required under Rules 16 and 17.

9On January 8, 2013, the respondent filed a one-page letter dated January 4, 2013, indicating that he had responded and that he has nothing else to submit. On the same date, the respondent filed a further letter dated January 6, 2013 with some documents attached. The respondent states that he is reiterating the contents of his Response “under duress” and states that he has no documents, witnesses or legal representations. The documents attached relate to events in 2002, other than a single letter from July 28, 2011 that appears to relate to a request to a family member of the applicant for return of a mailbox key.

10The respondent does not address the Request that the applicant’s doctor be permitted to testify by teleconference.

The Request to Hear the Doctor’s Testimony by Teleconference

11Rule 3.5 of the Tribunal’s Rules provides that the Tribunal may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate.

12The Tribunal has allowed witnesses to testify by telephone conference in certain circumstances depending on the nature and extent of the evidence. The Tribunal has generally not allowed testimony by teleconference where the credibility of the witness is a significant issue or where the witness’ evidence is either extensive or key to the proceeding. See, for example, Zeividavi v. Catholic Immigration Services, 2011 HRTO 406 at para. 15.

13In this case, based on the material filed and subject to paragraph 16 below, I grant the Request to permit the applicant’s doctor to testify by teleconference.

14The doctor’s evidence relates to a short medical note that was provided in or around August 16, 2010 to the respondent for the purpose of requesting accommodation and a further two-page report dated September 10, 2012, which details the applicant’s medical conditions and provides an explanation for why the doctor gave the applicant the medical note. The respondent has received the material and has not raised any objection to the applicant’s Request. In addition, upon my review of the material filed in connection with the Application (including the correspondence sent to the applicant from the respondent) and the Response, it is not apparent that the respondent challenges the information provided, although the respondent does indicate that he could not read some of the “prescription”, which I presume is a reference to the medical note. This can be clarified in the evidence. Further, it would appear that the respondent is not calling conflicting evidence related to the doctor’s proposed evidence – thus this is not a case where it may be critical to have a witness present in person in order to assess the credibility of the witness as against another witness offering conflicting evidence.

15In summary, having regard to all of these circumstances, I am of the view that there is little prejudice, if any, to the receipt of the evidence by teleconference subject to one qualification.

16The qualification relates to the issue of Dr. Li’s clinical notes. In the Request, the applicant indicated that she was in the process of obtaining Dr. Li’s clinical notes upon which the report was based and that such notes would be disclosed as soon as possible. The applicant is directed to confirm that the clinical notes have been provided to the respondent or to provide such notes immediately to the respondent and file a copy of the same with the Tribunal. If the respondent takes the position that the content, form and/or extent of the clinical notes impacts on the appropriateness of hearing the doctor’s evidence by teleconference, the respondent may raise his concerns at the outset of the hearing.

The Respondent’s Disclosure

17The respondent has submitted that he has no documents, witnesses or legal representation other than what has already been submitted.

18Upon a review of the respondent’s material, it is unclear how the documents submitted are relevant to the proceeding; namely, the issue of whether or not the applicant has been discriminated against on the basis of sex and disability as alleged in the Application. At the hearing, the respondent should be prepared to explain how the documents he has filed relate to the issues in the Application.

19In order to prepare for the hearing, the respondent may wish to review the Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario which is available on the Tribunal’s website at http://www.hrto.ca or by contacting the HRTO.

20A copy of the Tribunal’s Mediation/Adjudication Agreement is provided with this decision should the parties wish to participate in this process at the hearing.

21Subject to any further directions, the Tribunal directs:

i. The applicant may present her doctor’s evidence by teleconference call subject to the applicant confirming in writing that the clinical notes of the doctor have been provided to the respondent (such confirmation and a copy of the clinical notes to be filed with the Tribunal by January 18, 2013); and

ii. Upon request, the parties shall be prepared to make submissions of the relevance of the material filed by the respondent at the hearing.