HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Mitchell

Applicant

-and-

Money Direct Financial Services Inc. and Marlene Campbell

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: January 8, 2015

Citation: 2015 HRTO 28

Indexed as: Mitchell v. Money Direct Financial Services

INTRODUCTION

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 19, 2013. The Application is scheduled to be heard by the Tribunal on January 16, 2015, in Toronto.

2By email correspondence dated December 29, 2014, the applicant requested that the hearing be conducted by teleconference. It appears that the applicant has moved to British Columbia. She submits that she started a new job in November 2014, and that she is not stable enough in her position to request time off work. She also submits that her financial situation does not allow her to purchase a return flight to attend the hearing in person.

3On January 6, 2015, the Tribunal asked the respondents to respond to the applicant’s request. By email correspondence dated January 7, 2015, the respondents indicated that they are opposed to the request. The respondents submit that there are important issues of credibility in this matter that the Tribunal will be required to determine. They also submit that their right to challenge the applicant’s evidence by way of an effective cross-examination would be significantly prejudiced if her evidence is given by telephone, and without the ability to fully observe the applicant and the manner in which her evidence is presented.

4This Interim Decision addresses the applicant’s request, which the Tribunal considers as a request that she be permitted to participate in the hearing by teleconference.

DECISION

5Rule 3.5 of the Tribunal’s Rules of Procedure provides that the Tribunal “may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate”.

6The Tribunal’s power to conduct electronic hearings, which includes hearings by telephone, is also subject to s. 5.2(2) of the Statutory Powers Procedure Act, R.S.O 1990, c. S.22, which provides that 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.

7In the present case, I am not satisfied that it would be appropriate to conduct the hearing, or have the applicant participate, by teleconference.

8As the Tribunal explained in Cohen v. Synergex Corporation, 2013 HRTO 164, the ordinary expectation in hearings before the Tribunal is that participants, especially parties, will make themselves available in person to testify and submit to cross-examination and to question other witnesses. The Tribunal will sometimes permit witnesses to testify by telephone where the nature and extent of their evidence makes this appropriate. However, the Tribunal will generally not permit a witness to testify by telephone where the credibility of the witness is a significant issue, or where the evidence of the witness is extensive. Garofalo v. Cavalier Hair Stylists Shop, 2011 HRTO 907 ; Zeividavi v. Catholic Immigration Services, 2011 HRTO 406. This is so even when the reason for the request to testify by telephone is that the witness is living and/or working outside Ontario: Caster v. George Brown College, 2009 HRTO 1515; Pinkney v. Datex Billing Services, 2009 HRTO 1732 ; Zeividavi, above; Rumble v. TRW Kelsey-Hayes, 2010 HRTO 2106 ; Ketchum v. Serco DES, 2011 HRTO 1240.

9Both the Application and the respondents’ Response contain somewhat lengthy narratives. Having reviewed the parties’ materials, it appears that there are some inconsistences on matters relating to key issues, such as what the applicant asked for as a form of Code-related accommodation, and what she was told in response. As a result, it appears that the credibility of the applicant, and of the respondent’s witnesses, will likely be a significant issue in this case.

10The parties have also provided the Tribunal with copies of documents that they intend to rely on at the hearing. Some of these documents contain writing that is difficult to read, and several documents consist of various email exchanges between the parties. In my view, it would be difficult to deal with these documents at the hearing, with the applicant participating by way of teleconference. It also appears that the parties’ evidence could take a full day to hear.

11In my view, the applicant’s presence at the hearing is necessary in order to allow for the Tribunal to fairly assess the credibility of the witnesses, and to appropriately deal with the parties’ documentary evidence.

12In the circumstances, the applicant’s request that she be permitted to participate in the hearing by teleconference is denied.

13The parties are asked to be prepared to stay late at the hearing, if possible, in order for the Tribunal to complete hearing the evidence, if necessary.