HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Betts
Applicant
-and-
United Brotherhood of Carpenters and Joiners of America, Local 1256
Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Betts v. United Brotherhood of Carpenters and Joiners of America, Local 1256
1This Interim Decision addresses the applicant’s request to call the evidence of his two doctors by teleconference. The applicant filed a Form 10 Request for an Order During Proceedings and the respondent filed a Form 11 Response to a Request for an Order During Proceedings. The parties also made oral submissions on a case conference call.
2In his Request, the applicant noted that one of his doctors runs a busy family medicine practice in Corunna, and having to attend the hearing in Sarnia would mean he would have to close his office for a large part of a day.
3The applicant’s other doctor has offices in London, Chatham, Windsor and Sarnia, and resides in Blenheim. If he had to attend the hearing, he also would have to cancel appointments for a large part of the day.
4In both cases, the applicant submits, the ability to testify by teleconference will least interfere with the doctors’ professional responsibilities.
5The respondent objects to the evidence being called in this manner. The respondent submits that in this case there is an issue of credibility, particularly with respect to what the applicant told his doctors. The respondent submits it intends to go over with them the doctors’ records respecting their interactions with the applicant, as well as ask them about the notes of other doctors who have treated the applicant.
6The respondent states its principal difficulty is being able to ensure the doctors have the correct medical record and passage before them during questioning. In the respondent’s view, it will be more expeditious and efficient to have the doctors in the room to ensure they are referring to the correct information. The respondent submits that having each page of the medical records numbered to ensure that the parties and the doctors are able to find them easily will not alleviate the respondent’s concern. Given the significant number of medical records, it invites confusion if the doctors are not in the room so the parties can ensure they refer to the particular medical information they are asked to look at.
7The respondent submits it is willing to co-operate with the applicant to minimize any disruption to the doctors’ practices and notes that each of the doctors is in Sarnia at times.
8The applicant responds that the respondent’s issue is the applicant’s credibility, not the doctors’. Even though the doctors are in Sarnia on certain days, their presence depends on the needs of patients and it is difficult for the doctors to predict when they might be there.
Analysis and Decision
9The Tribunal is guided by the principle that its proceedings should be fair, just and expeditious. Inconveniencing witnesses runs contrary to this guiding principle. If these witnesses are required to attend in person, they will be required to shut down their practices for the better part of a day given the transportation time to and from Sarnia. Although each of them is in Sarnia at times, these times may not coincide with the dates set for the continuation of the hearing in this matter.
10As stated in Cann v. AS 4Finance Ltd., 2014 HRTO 1260 (“Cann”) (at para. 9):
. . . 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.
11Sometimes it is necessary to inconvenience witnesses to enable the parties to properly call and challenge testimonial evidence. I am not convinced that this is the case with respect to these witnesses. It is not the credibility of the doctors that is at issue in this case, but the credibility of the applicant. As pointed out in Cann (at para. 9):
[…] 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 [...]
12The respondent did not suggest that there is any concern about these witnesses testifying outside the visual scrutiny of the Tribunal. The respondent will be able to cross-examine the doctors about the information the applicant gave them. The respondent’s concern centred on the possible confusion with respect to what information the doctors will be directed to look at when testifying. In my view, this can be alleviated by the applicant delivering to the Tribunal, each of the doctors and the respondent identical books of the medical documents relevant to the doctors’ anticipated evidence. Those books must be bound and tabbed and have each page numbered.
ORDER
13The applicant’s request for his doctors to testify by telephone is granted.
14The applicant shall deliver to the Tribunal, the respondent and the doctors by no later than November 20, 2015 identical books of medical documents, which must be bound and tabbed and have each page numbered.
Dated at Toronto, this 20th day of October, 2015.
“Signed by”
Dawn J. Kershaw
Vice-chair