Lan v. Huawei Technologies Canada Co., Ltd., 2014 HRTO 1529

Human Rights Tribunal of Ontario

B E T W E E N:

Wenfeng Lan Applicant

-and-

Huawei Technologies Canada Co., Ltd. Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: October 10, 2014 Citation: 2014 HRTO 1529 Indexed as: Lan v. Huawei Technologies Canada Co., Ltd.

WRITTEN SUBMISSIONS

Wenfeng Lan, Applicant No one appearing

Huawei Technologies Canada Co., Ltd., Respondent Madeleine Loewenberg, 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 age. This matter has been scheduled for hearing on October 14, 2014 before this writer.

2This Interim Decision addresses Requests for an Order During Proceedings filed by the respondent on July 10, 2014 and September 8, 2014. This writer drafted this Interim Decision shortly after the respondent filed the second Request. Unfortunately, the Interim Decision was not processed, due to inadvertence. The Tribunal regrets this error and apologizes for any inconvenience.

3In the Request of July 10, 2014, the respondent requests that two of its witnesses be permitted to testify by videoconference or, in the alternative, by telephone. The respondent submitted that one of the witnesses, Mr. Li, now works for the respondent's parent company and lives in China and that another witness, Mr. Wu, works for another affiliate of the respondent's parent company and lives in Saudi Arabia. The respondent submitted that the cost of requiring these witnesses will be disproportionate to the benefit of receiving their evidence in person, particularly if they are required to re-attend on subsequent hearing dates. The respondent submitted that the use of videoconferencing will eliminate any concerns regarding the Tribunal's ability to assess credibility and that the use of telephone will not unduly prejudice the applicant or prevent the Tribunal from assessing credibility. On September 8, 2014, the respondents filed a similar request in respect of another of its witnesses, Mr. Lei, who now lives in Panama.

4The applicant did not file a Response to a Request for an Order to either request and the time for doing so has passed. The respondent noted, however, that it requested the applicant's consent to present evidence by video/teleconference and the applicant declined to give it.

Analysis and Decision

5Section 5.2(1) and 5.1(2) of the Statutory Powers Procedures Act, R.S.O. 1990, c., S.22 states as follows:

5.2(1) A tribunal whose rules made under section 25.1 deal with electronic hearings may hold an electronic hearing in a proceeding.

(2) The tribunal shall not hold an electronic hearing if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice.

6Rule 3.5 of the Tribunal's Rules of Procedure (the "Rules") states as follows:

The Tribunal may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate. However, no Application that is within the jurisdiction of the Tribunal will be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with these Rules.

7In Ivanescu v. Credit Valley Hospital, 2012 HRTO 1211, the Tribunal noted that the general expectation is that witnesses in proceedings before the Tribunal will testify in person. However, the Tribunal also noted that the burden is on the party opposing an electronic hearing to show that receiving evidence electronically is likely to cause that party significant prejudice. While it appears that the applicant opposes the respondent's request, he has not provided any reason to conclude that taking these witnesses by video or telephone conference call will cause him significant prejudice. I also agree with the Tribunal's statement in Ivanescu, above, that the inability to observe a witness' demeanour when testifying by telephone is not a compelling reason to require a witness to testify in person. This concern will obviously be eliminated if video conferencing is available. Accordingly, I am satisfied that it is appropriate for Mr. Li, Mr. Wu and Mr. Lei to testify by video conference or by telephone.

8Having reviewed the materials the parties filed with the Tribunal, it is unlikely, in my view, that the hearing of this matter will be completed in the day currently scheduled. The applicant's testimony, including cross examination will likely take a significant portion of the day and the parties may also engage in Mediation/Adjudication if they wish. Consequently, it is not certain if or when the respondent will begin its case on the first day, which poses difficulties with respect to scheduling video or telephone conference calls. In my view, it is prudent to have Mr. Li, Mr. Wu and Mr. Lei testify on continuation date(s) when their attendance by conference call can be precisely scheduled. Accordingly, Mr. Li, Mr. Wu and Mr. Lei will not be required on the first day of hearing, but the respondent should have its other witnesses available to testify.

Mediation/Adjudication

9As noted above, Mediation/Adjudication pursuant to Rule 15A of the Rules is available to the parties during the hearing should the parties wish to attempt to settle the matter without further litigation. As is my normal practice, I shall offer Mediation/Adjudication to the parties at the outset of the hearing and, accordingly, the parties should consider in advance of the hearing whether they are willing to participate in Mediation/Adjudication.

Order

10The respondent's Request is granted, as described above. The Tribunal shall endeavour to have Mr. Li, Mr. Wu and Mr. Lei testify by videoconference, but if videoconferencing is not available, then they may testify by telephone. The respondent shall coordinate with the Tribunal's Scheduling Department to arrange the conference calls for these witnesses.