Longueépée v. Wilfrid Laurier University, 2015 HRTO 1655

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roch Longueépée Applicant

-and-

Wilfrid Laurier University Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: December 8, 2015 Citation: 2015 HRTO 1655 Indexed as: Longueépée v. Wilfrid Laurier University

WRITTEN SUBMISSIONS

Roch Longueépée, Applicant David Baker, Counsel

Wilfrid Laurier University, Respondent D. Brent Labord and Matthew J. Mihailovich, Counsel

Introduction

1A hearing in this matter is proceeding on December 10 and 11, 2015, in Waterloo.

2This interim decision addresses the applicant’s request to have Dr. Ouchterlony testify by teleconference and his request that the Tribunal accept the report of Dr. Warriner and permit her to testify by teleconference as well. These requests were made in the applicant’s Request for Order During Proceedings dated November 19, 2015.

3The respondent opposes these requests.

Analysis

Dr. Ouchterlony

4Rule 3.5 of the Tribunal’s Rules provides that the Tribunal may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate.

5The Tribunal has allowed witnesses to testify by telephone conference in certain circumstances depending on the nature and extent of the evidence. Generally, 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.

6In reviewing the witness statement for Dr. Ouchterlony, it appears that her evidence is important to the issues in this case. Documents will likely be put to her, which cannot be done over the telephone, particularly during cross-examination. Her evidence may be extensive and complex, and not well suited to being given over the phone. As such, I am not prepared to allow Dr. Ouchterlony to testify by teleconference. I am however prepared to have her testify at a specific time to limit any inconvenience that she may experience attending the hearing in person.

Dr. Warriner

7Dr. Warriner completed a neuropsychological assessment on the applicant on June 25, 2015. Her report was provided to the respondent on September 15, 2015. On November 19, 2015, the applicant provided the report to the Tribunal and requested that Dr. Warriner be permitted to give evidence at the hearing.

8The respondent objects to this evidence. It submits the report was prepared two years after the applicant applied to be admitted to the university and is therefore not relevant to the issues in dispute. It submits further that the report should not be admitted this close to the commencement of the hearing.

9Rule 5.7 provides that where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 16 or 17, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings.

10I do not think substantial prejudice will result by the admission of this report. The respondent has had the report since the middle of September 2015 (although I recognize that it did not know that Dr. Warriner would be proposed as a witness). There will be no undue delay because it is unlikely that we will get to Dr. Warriner’s evidence, if allowed, this week. It is anticipated that there will be a gap between the scheduled hearing dates and any continuation dates that will be set. If the evidence is allowed, the respondent will have sufficient time to prepare.

11Having said that, it is unclear to me whether Dr. Warriner’s evidence is relevant to the issues in this case. I will make this determination after hearing the evidence of the applicant and Dr. Ouchterlony. The parties will be given the opportunity to make further submissions at that time.

Decision

12The hearing will proceed on December 10 and 11, 2015. I will hear the evidence of the applicant and Dr. Ouchterlony at that time. Dr. Ouchterlony must attend the hearing in person.

13A decision regarding the evidence of Dr. Warriner will be made at a later date.