Cann v. AS 4Finance Ltd., 2014 HRTO 1260

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathan Cann

Applicant

-and-

AS 4Finance Ltd.

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: August 26, 2014

Citation: 2014 HRTO 1260

Indexed as: Cann v. AS 4Finance Ltd.

WRITTEN SUBMISSIONS

Jonathan Cann, Applicant

Brenda Culbert, Counsel

AS 4Finance Ltd., Respondent

Chantel Goldsmith, Counsel

1The purpose of this Interim Decision is to address the applicant’s Request for Order dated August 11, 2014 seeking: (1) an order from the Tribunal requiring the respondent to provide a list of documents upon which it intends to rely at the hearing; and (2) an order permitting the applicant’s family doctor to testify by teleconference on the first day of hearing on September 4, 2014.

2The respondent has filed a Response objecting to both requests, which I have reviewed and considered.

3With regard to the former request, Rule 16.2(a) of the Tribunal’s Rules of Procedure requires the parties to provide a list of documents upon which they intend to rely not later than 45 days prior to the first scheduled day of hearing. While the parties already will have made disclosure to each other of all arguably relevant documents in their possession by that time, the intent of this Rule is for the parties to notify the Tribunal and each other of the specific documents upon which they intend to rely at the hearing in order to better focus on the critical issues. In addition, while some parties may already have filed documents with their pleadings or when they make disclosure under Rule 16.1 (even though not required to do so), it is important for the Tribunal in order to properly prepare for and case manage a hearing to know from the parties which specific documents they intend to rely upon at the hearing itself and to have a copy of those documents.

4This case provides a good illustration of the intent of Rule 16.2(a). The respondent attached documents to its Response, and made disclosure pursuant to Rule 16.1(a) which was not filed with the Tribunal. Subsequently, in response to requests from the applicant and this Tribunal’s direction, it disclosed and filed two volumes of documents relating to the applicant and certain other employees. This has resulted in a large volume of documents having been disclosed to the applicant, some but not all of which have been filed with the Tribunal. The applicant and the Tribunal are entitled to know, and the respondent is required by Rule 16.2(a) to say, what specific documents from these materials it intends to rely upon at the hearing, and the respondent is required by Rile 16.3(b) to file a copy of these documents with the Tribunal.

5The respondent may say that it intends to rely upon all of the documents disclosed to the applicant to date. The two volumes of documents already filed with the Tribunal are already accompanied by a list. The documents attached to the Response consist largely of e-mails and are self-explanatory and do not require a list. The documents disclosed to the applicant pursuant to Rule 16.1 have not yet been filed with the Tribunal, and need to be accompanied by a list identifying what these documents are.

6On the other hand, if the respondent is only relying upon some but not all of the documents disclosed to the applicant and/or filed with the Tribunal, then the applicant and the Tribunal need to know this.

7My practice is to mark the pleadings, together with any attached documents, and the parties’ hearing documents as exhibits at the outset of the hearing, subject to any objection that may be raised as to the authenticity or admissibility of any particular document. My practice also is to review all documents to be relied upon by the parties in advance of the hearing, in order to understand the case and the issues and to better case manage the hearing in order to ensure that it proceeds expeditiously. Compliance by the parties with the Tribunal’s Rules is a critical component of being able to achieve these goals.

8Accordingly, by no later than Friday, August 29, 2014, the respondent is ordered to provide to the applicant and file with the Tribunal a list of the documents upon which it intends to rely at the hearing, and to file with the Tribunal a copy of any documents upon which it intends to rely which have not already been filed.

9With regard to the applicant’s latter request, it is not at all uncommon for doctors to testify by teleconference at a hearing. While I appreciate that witnesses are often inconvenienced by having to appear in person to testify and are thereby taken away from their work, it seems to me that medical professionals are in a somewhat different category owing to the nature of their work and the frequency with which they are called upon to testify in disability discrimination cases before this Tribunal. Further, in my experience, it is an exceedingly rare situation where I am called upon to assess the credibility of a medical professional, in the sense of whether or not they are telling the truth, as opposed to assessing such things as whether there is a sufficient medical and/or evidentiary basis to support any diagnoses, prognoses or recommendations they may have made. In my view, this can readily be accomplished by hearing the doctor’s evidence by teleconference, as I have done in many cases.

10Accordingly, the applicant’s request for his family doctor to testify by teleconference is granted. The applicant shall make arrangements with his family doctor regarding his availability. At least an hour should be scheduled to hear the doctor’s evidence. If necessary, the applicant’s examination or cross-examination can be suspended to accommodate the doctor’s schedule.

ORDER

11For the foregoing reasons, I hereby make the following order:

a. By no later than Friday, August 29, 2014, the respondent shall provide to the applicant and file with the Tribunal a list of the documents upon which it intends to rely at the hearing, and file with the Tribunal a copy of any documents upon which it intends to rely which have not already been filed; and

b. The applicant’s request for his family doctor to testify by teleconference is granted.