Edwige Jean-Pierre v. Office of the Ontario Ombudsman, 2014 HRTO 1705

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edwige Jean-Pierre

Applicant

-and-

Office of the Ontario Ombudsman

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: November 26, 2014

Citation: 2014 HRTO 1705

Indexed as: Jean-Pierre v. Office of the Ontario Ombudsman

WRITTEN SUBMISSIONS

Edwige Jean-Pierre, Applicant

Corinne Muccilli, Counsel

Office of the Ontario Ombudsman, Respondent

Glenn Christie, Counsel

1This is an Application filed on September 19, 2012, alleging discrimination with respect to employment because of race, colour, ancestry and place of origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address the respondent’s request for one of its witnesses to testify by telephone when the hearing re-commences on December 1 and 2, 2014. This request is opposed by the applicant.

3There is no dispute between the parties that this Tribunal has jurisdiction to allow a witness to testify electronically, whether by telephone or video conference: see Johnson v. Ekonomidis, 2004 HRTO 18. The issue is whether allowing a witness to testify in this manner is likely to cause significant prejudice. In particular, this Tribunal will not generally allow a witness to testify electronically where the credibility of the witness is a significant issue in the proceeding or where the witness’ evidence is extensive or key to the proceeding: see Zeividavi v. Catholic Immigration Services, 2011 HRTO 406.

4In the instant case, the respondent has provided a medical note provided by the witness’ doctor stating: “this patient has an ongoing medical condition that leaves her unable to attend a hearing at the Human Rights Tribunal as a witness at this point in time”. The respondent states that it has been advised that the witness could give evidence by telephone.

5The applicant states that, where there is inadequate information concerning the ability of a witness to be present at the hearing, the proper course is for the hearing to be adjourned to explore the possibility of the witness being present to testify at the hearing, whether through some improvement to the witness’ medical condition or through accommodations that could be made to enable the witness to attend. While the applicant has relied upon a number of authorities in her submissions, I note that these authorities all relate to requests by an applicant, who is a party to the proceeding and bears the onus of proving a violation of the Code, who has been denied the ability to provide evidence electronically or in writing. In my view, different considerations apply when the person seeking to give evidence electronically is a witness and not a party to the proceeding.

6The applicant submits that the medical note submitted on behalf of the witness is inadequate, in that it does not indicate when the witness would be available to participate in the hearing in person or whether she would be able to do so with accommodations. I agree that the medical note is rather sparse. However, in my view, it is sufficient to support that the witness is unable to attend the scheduled hearing dates of December 1 and 2, 2014, during which it is expected that the hearing in this matter will be completed.

7The real issue in this case is whether, as the applicant contends, this situation calls for an adjournment of the hearing to obtain more complete information regarding the status of the witness, or whether, as the respondent contends, the hearing should proceed with this witness giving evidence electronically. In my view, this situation certainly does not necessitate the adjournment of the hearing in its entirety. There is no reason why the applicant and any witnesses she intends to call cannot proceed to testify at the resumption of the hearing. Further, the respondent has indicated that it intends to call three witnesses in addition to the witness who is unable to attend the hearing, and there is no reason that the hearing cannot proceed to hear the evidence of these three other witnesses.

8The question, in my view, is whether any substantial prejudice would be caused to the applicant if this one witness were to testify electronically. This requires an examination of this witness’ proposed evidence in the context of the issues to be addressed in this proceeding. The witness at issue is the person who sent the original e-mail that included the “slave for a day” comment and the accompanying graphic. There is no dispute about this. This witness also proposes to testify about a discussion with a co-worker who raised an issue with her about the use of the term “slave”, prompting the witness to send out a revised e-mail. Again, there does not appear to be any real dispute about this. In addition, the respondent further intends to call the co-worker who raised this issue to testify as a witness, and her proposed evidence is consistent.

9The witness at issue also proposes to testify about the other issue in this proceeding, which relates to a further e-mail sent out by her on July 24, 2012. The e-mail in question is in evidence before me. This witness’ evidence is that the July 24, 2012 e-mail had nothing to do with her prior e-mails, but arose from an unrelated issue about the conduct of the silent auction and a dispute amongst the committee members. The respondent proposes to call two other committee members to testify at the hearing, whose proposed evidence is consistent.

10The applicant submits that the evidence of the witness at issue goes to the central issues in this case, as she is the author of the two e-mails in question. She submits that the credibility of this witness must necessarily be assessed in relation to the witness’ motivation for drafting the e-mails in the way that she did, and that her credibility would be better assessed if she testified in person. While I certainly agree that the witness at issue is significant in the sense that she was the author of the two e-mails at issue, this is not a case where the applicant is alleging that she had some other verbal discussion with this witness about the issues in this proceeding where the content of any such verbal discussion is in dispute. Rather, the applicant’s case relies on the fact of the transmission of these e-mails and their impact on her to support the alleged violation of her rights under the Code. While the reason this witness drafted the e-mails in the way that she did may be explored in questioning, it is settled law that this witness’ motivation or intent in sending out the e-mail is not the critical issue in determining whether the applicant’s rights under the Code have been infringed. Rather, it is the impact or effect of the content of the e-mails, which is recorded in the documents themselves, on the applicant that is the critical issue before me.

11In my view, this witness’ credibility is not a key or significant issue in this proceeding. Further, her proposed evidence is not extensive and relates to a very limited number of documents. In these circumstances, I find that no substantial prejudice would be caused to the applicant by allowing this witness to testify by telephone. In the circumstances, I do not find that an adjournment of the hearing is appropriate or necessary, and the hearing will proceed as scheduled on December 1 and 2, 2014.

ORDER

12For the foregoing reasons, I hereby make the following order:

a. The respondent’s request for one of its witnesses to testify by telephone is granted; and

b. The applicant’s request for the hearing to be adjourned is denied and the hearing will proceed as scheduled on December 1 and 2, 2014.