A.B. v. Western University, 2015 HRTO 354

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.B.

Applicant

-and-

Western University and Y.Z.

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: March 20, 2015

Citation: 2015 HRTO 354

Indexed as: A.B. v. Western University

WRITTEN SUBMISSIONS

A.B., Applicant

Jennifer Zdriluk and Wade Poziomka, Counsel

Western University and Y.Z., Respondents

Lisa Kwasek, Counsel

Introduction

1The hearing in this matter is scheduled for March 26 and 27, 2015.

2On March 17, 2015, the applicant filed a Request for Order During Proceedings seeking the following:

a. That the hearing be transcribed by a court reporter;

b. That the location of the hearing be moved from London to Toronto;

c. That Dr. Resnik be permitted to testify by telephone, on consent;

d. That Dr. Persad’s report be entered as a business record or if that request is denied, that he be permitted to testify by telephone;

e. That the Application be amended to include the ground of reprisal and the failure of the duty to investigate, and the remedies sought be amended;

f. That the respondents be ordered to produce requested arguably relevant documents.

3This Interim Decision addresses the first two requests. I have determined these requests in writing due to the difficulty in scheduling a teleconference because of my own hearing schedule.

Recording the Hearing

4The Tribunal’s Practice Direction on Recording Hearings governs the applicant’s request to record the hearing. It states the Tribunal may permit a party to have a court reporter record the hearing at the party’s expense. Where a court reporter is permitted, the party that has obtained the court reporter must normally have transcripts produced and provide copies to the Tribunal and the other parties at its own expense.

5I have no difficulty allowing a court reporter to record this hearing. This will provide the Tribunal and the parties with the most accurate record of the evidence.

6The applicant must provide transcripts, at her expense, to the Tribunal and the respondents, as provided for in the Practice Direction on Recording Hearings. These transcripts must be provided prior to final argument. This will ensure that the parties and the Tribunal have access to the most complete record of the evidence when making final argument. It will also ensure that I have the best record of the evidence when writing the decision. The transcripts will form part of the record of proceeding pursuant to section 20 of the Statutory Powers Procedure Act.

7I recognize that this is contrary to the applicant’s request that she not be required to order transcripts. In my view, if hearings are recorded, everyone should have access to the most accurate record of the hearing. It is somewhat unfair to ask the parties and the Tribunal to rely on their own notes when a better record is available. It also strikes me as unfair to save the best record of the hearing for judicial review, which the applicant suggests may be necessary.

Change of Venue

8The Tribunal has a standard approach of scheduling hearings in the closest regional centre to the location of the alleged discrimination. The Tribunal’s Practice Direction on Hearings in Regional Centres confirms that the Tribunal will hold hearings in other locations (or other regional centres) in order to accommodate Code-related or other needs of the parties and their witnesses. Any request for a change in location should be in writing to the Registrar of the Tribunal as soon as possible.

9In this case, the hearing was scheduled in the Tribunal’s regional centre in London because the events took place at Western University. By Notice of Hearing dated June 23, 2014, the hearing was scheduled for September 24 and 25, 2014 at the Landlord and Tenant Board at 150 Dufferin Avenue, in London.

10On July 24, 2014, the applicant’s counsel advised the Tribunal that he had been retained. He requested an adjournment of the September hearing dates because he was unavailable on those dates. Although the Tribunal’s general practice is not to allow adjournments because a party has retained legal counsel, an adjournment was given in this case.

11The hearing was subsequently rescheduled for March 26 and 27, 2015 by Notice of Hearing dated September 2, 2014. The location of the hearing remained in London.

12On March 17, 2015, the applicant requested a change of venue as an accommodation to the applicant. The applicant asserts that having the hearing in London would be detrimental to her health. She provided a letter from Dr. Resnick, her psychologist, dated March 2, 2015 in support of her request to change the venue of the hearing. In his letter, Dr. Resnick states:

[A.B.] is experiencing a significant increase in anxiety, stress and panic at the quickly approaching and threatening event of having to travel to and participate in the hearing held in London, Ontario, where the discrimination and harassment took place. The city of London is a trigger for her post traumatic stress because she associates the city of London with feelings of powerlessness, being trapped, and being discriminated against. As a result she intensely fears having to be there to participate in the hearing. She has experienced a spike in disturbing flashbacks and nightmares of particularly hurtful events which she constantly ruminates on as she worries about having to return to London to participate in the hearing.

13The respondents object to the change of venue because it would require counsel, the individual respondent and respondent witnesses to travel to Toronto. Counsel states the individual respondent has been adversely affected by the events underlying the Application and she would be required to be in Toronto without any support. The respondents question the bona fides of the change in venue request. They state the request was only made after the respondents refused to consent to Dr. Persad (a witness for the applicant) giving his evidence by teleconference. Finally, they object to the request being made at such a late date – ten days before the commencement of the hearing.

14I share the respondents’ concerns regarding the lateness of the change in venue request. The hearing was scheduled in London in June 2014. It was adjourned when the applicant’s counsel was retained in July 2014. A new Notice of Hearing was issued in September 2014 with the same hearing location. At no time in the last six months was a request made by the applicant to change the venue of the hearing. The Tribunal’s Practice Direction on Hearings in Regional Centres states requests to change a hearing location must be made as soon as possible.

15Dr. Resnick’s letter of March 2, 2015 raises the issue of applicant’s stress and anxiety about participating in the hearing. I understand why the applicant is experiencing stress in relation to the hearing scheduled for next week: hearings are extremely stressful for all participants.

16The more pressing issue is with respect to Dr. Resnick’s opinion that the City of London is a trigger for the applicant’s post-traumatic stress. While I have no difficulty accepting that a hearing at the Western University would be extremely challenging for the applicant, it is more difficult to accept that the City of London is a similar or equal trigger. Further, the opinion of Dr. Resnick that London is a trigger for the applicant is somewhat at odds with her request to be reinstated to her program at Western University (as part of her amended remedies).

17The Tribunal is committed to providing accommodation for needs related to, among other things, disability. It strikes me that there are other forms of accommodation that would help the applicant participate in this hearing short of changing the venue less than one week before the hearing. These accommodations could include having a support person attend the hearing with the applicant, allowing the applicant to have access to her therapist during the hearing breaks, and providing additional or longer hearing breaks.

18In my view, it is not fair, just or expeditious to try to change the location of this hearing less than one week before it is scheduled to commence. I would like to hear from the applicant at the commencement of the hearing regarding what I can do to help her participate in the hearing.

19Given the fact that the hearing is commencing next week, I have only addressed the requests that must be dealt with in advance of the hearing. The remaining requests will be dealt with at the hearing.

20Finally, I am in receipt of the applicant’s Request for Reconsideration of my interim decision dated February 17, 2015, 2015 HRTO 208. Reconsideration is only available from a “final decision” of this Tribunal pursuant to Rule 26.1 of the Tribunal’s Rules of Procedure. As this decision dealt with the applicant’s request to amend her Application and for production of documents, it does not constitute a final decision. The Request for Reconsideration is denied for this reason. See Taucar v. University of Western Ontario, 2015 HRTO 257.

ORDER

21The applicant’s request to have the hearing transcribed by a court reporter, at her expense, is allowed. The applicant must provide transcripts, at her expense, to the respondents and the Tribunal, prior to final argument being made. These transcripts will form part of the record of proceedings in this matter.

22The applicant’s request to change the venue of the hearing from London to Toronto is denied. The hearing will take place in London.

23One point of clarification regarding this order. It is likely that the two hearing days next week will be used to hear preliminary issues, opening statements and the applicant’s evidence. My ruling on change of venue does not preclude the applicant from requesting that her medical evidence be heard in Toronto. If that request is made, I will consider it and make a ruling on it next week.

24The applicant’s Request for Reconsideration is denied.

25The parties are advised of the Tribunal’s mediation/adjudication process set out in Rule 15A of the Tribunal’s Rules of Procedure. A copy of the Tribunal’s mediation/adjudication agreement is attached to this Interim Decision for the parties’ review. The Tribunal will offer this process at the commencement of the hearing on March 26, 2015. If the parties agree, the hearing will start with mediation/adjudication. If they do not agree, the hearing will commence with preliminary issues, followed by opening statements and the applicant’s evidence.