F.S. by his next friend M.S. v. Etobicoke Youth Soccer Club, 2014 HRTO 221

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

F.S. by his next friend M.S.

Applicant

-and-

Etobicoke Youth Soccer Club, Ontario Soccer Association, Toronto Soccer Association and Remo DiCarlo

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: February 18, 2014 Citation: 2014 HRTO 221 Indexed as: F.S. v. Etobicoke Youth Soccer Club

APPEARANCES

Ontario Soccer Association, Respondent

Jessica DiFederico, Counsel

1This is an Application filed on October 9, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to membership in a vocational association because of ancestry, place of origin, citizenship and ethnic origin. The Tribunal has also stated that the social area engaged by the facts of this Application appears to be goods, services and facilities. See F.S. by his next friend M.S. v. Etobicoke Youth Soccer Club, 2013 HRTO 1111. The hearing of this matter is scheduled for February 24 and 25, 2014.

2The applicant who identifies himself as Croatian alleges that the individual respondent, who was his coach at the time, uttered an ethnic slur about Croatians and that he was prevented from playing soccer after he and his parents complained about the individual respondent’s behaviour.

3On January 30, 2014, the respondents Ontario Soccer Association (the “OSA”) and Toronto Soccer Association filed a Request for an Order During Proceedings (the “Request”) in which they requested that one of their witnesses, Joyce Stewart, be allowed to testify by affidavit or telephone conference and that the other parties be allowed to cross examine her by telephone conference. By Case Assessment Direction dated February 5, 2014, the Tribunal abridged the time for responding to the Request and directed the applicant to file a Response to a Request for Order by February 10, 2014. As of the date of this Interim Decision, the applicant has not filed a response to the Request and the time for doing so has passed.

4In the Request, the respondents explained that Ms. Stewart resided in Barbados and submitted that she should be permitted to provide her evidence by affidavit or telephone conference. The respondents submitted that Ms. Stewart’s evidence is based on the correspondence between her and the applicant and that she will not be testifying to a different version of some specific event. In these circumstances, the respondents submitted that they do not expect that her evidence will be contradicted by other witnesses and that an in-person cross-examination to assess her demeanor and credibility is not necessary.

Analysis and Decision

5The general expectation is that witnesses in proceedings before the Tribunal will testify in person. However, the Tribunal may permit witnesses to testify by telephone where the nature and extent of their testimony makes this arrangement fair, just and expeditious: Pinkney v. Datex Billing Services, 2009 HRTO 1732.

6This is consistent with the Tribunal’s power, pursuant to Rule 3.5 of the Tribunal’s Rules of Procedure, to “conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate.” The Tribunal’s power to conduct telephone hearings is also informed by s. 5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), which states:

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.

7The Tribunal has held that the burden is on the party opposing an electronic hearing to show that it may be significantly prejudiced if the hearing is held by telephone: Pinkney, supra.

8The applicant did not respond to the Request and therefore did not identify any prejudice to him if Ms. Stewart does not testify in person at the hearing. The witness statement summarizing Ms. Stewart’s evidence indicates that her evidence will be based largely on the e-mail correspondence she received and sent in her dealings with the applicant’s mother. There also does not seem to be any dispute that the OSA, for whom Ms. Stewart was the Provincial Harassment Prevention/Volunteer Screening Officer, did not initiate an investigation into the applicant’s complaint. Ms. Stewart’s expected evidence will address the OSA’s reasons for this, but it does not appear that credibility will be an important concern regarding her testimony.

9Ms. Stewart will therefore be permitted to testify by telephone at the hearing of this matter. Ms. Stewart may adopt the summary of her expected evidence as her evidence in chief, followed by cross examination.

10The parties should correspond with one another as soon as possible in order to determine more precisely when Ms. Stewart ought to be available to give evidence in this matter. If the parties do not object, the Tribunal would be prepared to interrupt other witnesses’ testimony in order to allow Ms. Stewart to testify at a set time. In the event that the parties are unable to come to a mutually agreeable arrangement in this regard, either or both of them may write to the Tribunal seeking further direction.