Paul v. Tyco Security Products Canada Ltd., 2015 HRTO 1239

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Arun Paul

Applicant

-and-

Tyco Security Products Canada Ltd.

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: September 17, 2015

Citation: 2015 HRTO 1239

Indexed as: Paul v. Tyco Security Products Canada Ltd.

WRITTEN SUBMISSIONS

Arun Paul, Applicant

Brenda Culbert, Counsel

Tyco Security Products Canada Ltd., Respondent

Stefanie Di Francesco, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A hearing has been scheduled for September 30, 2015, but several preliminary requests have been made by the applicant. This Interim Decision deals with those requests and provides some further direction with respect to the hearing.

Request to amend Application

2The applicant has requested that the Application be amended to reflect the correct name of the respondent. The respondent’s counsel has confirmed that the name of the respondent as listed in the Application is not the legal name. Instead, it is Tyco Security Products Canada Ltd. The respondent consents to the name of the respondent being changed. In the circumstances, this amendment request is granted and the style of cause has been changed to reflect the correct name of the respondent.

3The applicant also requested that the Application be amended to indicate that the applicant is seeking monetary compensation for injury to dignity, feelings and self-respect in the amount of $30,000, and for lost wages in the amount of $20,674.80. The respondent consents, recognizing that these amendments will neither prolong the hearing nor prejudice the respondent. In the circumstances, the Tribunal grants the applicant’s request to amend the remedies section of the Application in this manner.

Request for production

4The applicant requests the production of 1) the consent form and fax confirmation from Dr. Sutton to Dr. Danial on or about June 17, 2014; and 2) all notes made by Dr. Sutton of his conversation with Dr. Danial on June 17, 2014.

5Communications between Dr. Sutton and Dr. Danial are key in the adjudication of this Application, and the parties must be aware how important and relevant any documents or notes that relate to those communications are. Unfortunately, the respondent states that it is making best efforts to obtain the documents the applicant requests, but they are in the possession of a third party, and the respondent has so far not been successful in obtaining them.

6The respondent is directed to immediately deliver to the applicant copies of its written communications to this third party relevant to its efforts to obtain the documents, or to file submissions as to why copies of its written communications cannot be shared with the applicant.

Request for medical witnesses to testify by teleconference

7The applicant has requested that Dr. Danial and Dr. Lisser be permitted to testify by teleconference because appearing in person would interfere with their busy practices. The respondent sees no merit to the reason for the request. The respondent opposes the request, taking the position that it will be prejudiced if the doctors do not appear in person.

8Generally, the Tribunal has not allowed testimony by teleconference where the credibility of the witness is a significant issue or where the witness’ evidence is extensive or key to the proceeding. See, for example, Zeividavi v. Catholic Immigration Services, 2011 HRTO 406.

9In this case, based on the material filed, I grant the request to permit Dr. Lisser to testify by teleconference. In my view, the doctor’s credibility is not a significant issue, and the assessment of his credibility will not be substantially affected if he testifies by teleconference.

10As to Dr. Danial, however, the credibility of his evidence is critical given the respondent’s anticipation that Dr. Sutton’s evidence will contradict Dr. Danial’s with respect to whether they had a discussion about the applicant and whether Dr. Danial told Dr. Sutton that he agreed the applicant did not necessarily need time off work. Consequently, it will be necessary to have both Dr. Danial and Dr. Sutton attend in person.

11The applicant must arrange with the Registrar to have Dr. Lisser testify by teleconference at 12:15 p.m. on September 30, 2015. Dr. Lisser must be available for as long as it takes to complete his testimony, which the respondent has predicted will be more than half an hour. The applicant must ensure for the hearing that Dr. Lisser, the respondent and the Tribunal have identical books of documents that are relevant to Dr. Lisser’s anticipated evidence. Those books must be bound and tabbed.

further directions

12The Tribunal will offer mediation-adjudication to the parties at the beginning of the hearing. If the parties do not wish to participate, or if it fails to resolve the matter, then the Tribunal will deal with any remaining requests. The applicant must be prepared to testify in the morning on the day of the hearing, should circumstances warrant the commencement of evidence. No other witnesses need attend in the morning.