A.B. v. Joe Singer Shoes Limited, 2016 HRTO 1105

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.B.

Applicant

-and-

Joe Singer Shoes Limited, Paul Singer and Buy-A-Hammer Investments Inc.

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: August 22, 2016

Citation: 2016 HRTO 1105

Indexed as: A.B. v. Joe Singer Shoes Limited

WRITTEN SUBMISSIONS

A.B., Applicant

Emily Shepard, Counsel

Joe Singer Shoes Limited, Paul Singer and Buy-A-Hammer Investments Inc., Respondents

Arnold Zweig, Counsel

Introduction

1This Application alleges reprisal and discrimination with respect to employment because of race, colour, place of origin, ethnic origin, disability, sex, sexual solicitation or advances, family and marital status and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2An Interim Decision, 2016 HRTO 1083, dated August 15, 2016 (“prior Interim Decision”) was issued granting hearing accommodations to the applicant. Due to administrative error, when the Tribunal made this Interim Order it did not have before it the respondents’ Form 11 Response to a Request for an Order.

3I have now considered all of the parties’ submissions, and my Interim Decision follows.

Hearing Accommodation

4The applicant requests hearing accommodations as follows:

a. That she be permitted to testify, in the presence of a support person and her counsel, via video technology from a different hearing room than where the personal respondent is, with the applicant not able to see the personal respondent but with the personal respondent and his counsel able to see her; and

b. That she be permitted to take breaks as required.

5The respondents object to the applicant being permitted to testify via videoconference from a separate room.

6The respondents submit:

a. It is not conclusive that the applicant’s disability is related to her allegations against the personal respondent, and instead may be due to other cognitive impairments such as post-concussion syndrome or acquired brain injury;

b. The opinions of the applicant’s psychiatrist and psychologist are based solely on the applicant’s unproven allegations, and the applicant has not yet provided any detailed facts to substantiate the particulars of her allegations;

c. The applicant submitted that she already demonstrated that her post-traumatic stress disorder required accommodation in the criminal trial and it rendered her unable to testify but provided no information about whether or not she sought accommodations in the criminal arena;

d. The applicant has been unable or unwilling to provide details or discuss the particulars of her allegations with her psychologist and psychiatrist, and the personal respondent has had to live under the cloud of being accused of sexually assaulting the applicant without a chance to confront her allegations.

7The respondents submit it is crucial for them to be able to put documents to the applicant in an orderly and timely manner.

8The respondents further submit that the Tribunal should remember this is a case of discrimination, not a criminal or civil trial of assault and battery, and it is not being heard before a jury. Therefore the Tribunal should be wary and guarded in making this a criminal or civil trial centred on sexual abuse.

9The respondents rely on Durocher v. The Empty Plate Eatery Inc., 2016 HRTO 581 (“Durocher”) and Chopra v. Dalton, 2016 HRTO 385 (“Chopra”) for the proposition that the Tribunal expects parties to testify in person, particularly when credibility is an issue.

Analysis and Decision

10As set out in my prior Interim Decision, the applicant’s psychiatrist provided a May 31, 2016 report that stated in part:

[The applicant’s] symptoms include memory disturbance, worsening anxiety, sadness and low energy, hypervigilance and anxiety. She has always found it extremely anxiety provoking talking about her initial trauma at her former place of work. I think she would clearly be unable to keep her composure and cognitive clarity if she had to be in the same room as her former employer.

11I also stated in paragraph 13 of my prior Interim Decision that the applicant “suffers from major depressive disorder and post-traumatic stress disorder, which she alleges resulted from the personal respondent’s actions against her” [emphasis added].

12In making my finding that the applicant should be afforded hearing accommodations, I have not predetermined whether or not the applicant’s disability resulted from the personal respondent’s alleged actions. I also did not consider this as anything other than a discrimination case in which Rule A5.1 states:

A5.1 A party, representative, witness or support person is entitled to accommodation of Human Rights Code-related needs by the tribunal and should notify the tribunal as soon as possible if accommodation is required.

13The respondents point out, as in Durocher v. The Empty Plate Eatery Inc., 2016 HRTO 581 at paragraph 6:

This Tribunal has stated that its ordinary expectation is that participants, especially parties, make themselves available in person to testify and submit to cross-examination and also be present in person to question other witnesses. This is particularly the case where, as here, there are serious issues of credibility to determine. This Tribunal generally has not considered the expense of travelling to a hearing to be a sufficient justification for allowing a party to participate by video or teleconference: see Haskins v. Religious Hospitaliers of Hotel Dieu of St. Joseph of the Diocese of London, 2010 HRTO 1550; Pinkney v. Datex Billing Services, 2009 HRTO 1732.

14In Durocher, the issue was whether the applicant was going to attend a hearing by telephone or videoconference instead of travelling from another province. In Chopra, the applicant expressed an unwillingness to be in the same room as the respondents. In neither case was there a request for a disability-related accommodation. In fact in Chopra, the Tribunal made it clear that the applicant provided no Code-related reasons to support her request that she not be required to attend in person.

15In this case, whether or not the personal respondent is found to have committed the acts the applicant alleges he has, the applicant’s psychiatrist and psychologist both have provided medical opinions about the difficulties the applicant will have testifying in the same room as the personal respondent.

16As I stated in the prior Interim Decision, it is necessary that the Tribunal have enough information to be satisfied not only that accommodation is requested for needs related to the Code, but also that there is enough specificity to suggest and assess an appropriate accommodation in the circumstances. Having sufficient information about the applicant’s medical needs as they relate specifically to restrictions on her ability to participate in the hearing process allows the Tribunal to assess options for accommodation that also take into account balancing the interests of other parties who may be directly affected by changes to the hearing process. The Tribunal requires information that will satisfy it that a request for accommodation is linked to the applicant’s disability, rather than simply being the applicant’s preference. See, for example: Gravelle v. Giorgio's No Frills, 2012 HRTO 1643.

17In this case, there is sufficient evidence of the applicant’s requirement of being permitted to testify via videoconferencing from a room separate from the personal respondent despite the respondents’ objections. In my view, whether or not the applicant requested hearing accommodations for the criminal trial or whether she has yet been able to discuss details of the alleged acts with her psychologist or psychiatrist is irrelevant to whether there are sufficient grounds to grant the hearing accommodations requested. The accommodation is granted.

18The respondents raise an issue with respect to how they will be able to put documents to the applicant in a separate room. All parties are expected to deliver to the each other and to the Tribunal bound books of hearing documents, preferably tabbed with the pages numbered. The respondents should ensure that they deliver, in advance of the hearing, such a book or books to the applicant and to the Tribunal in order that the applicant and the Tribunal will be able to easily find any documents to which the respondents wish to refer the applicant.

19As indicated in the prior Interim Decision, the applicant will be permitted to take breaks as required. She also will be permitted to have a support person present with her.

order

20The Tribunal makes the following orders:

a. The orders set out in Interim Decision, 2016 HRTO 1083 remain in effect;

b. The respondents, by no later than August 22, 2016, shall deliver to the Tribunal (and to the applicant if not already delivered) their documents to be relied on at the hearing in a tabbed book with numbered pages to the Tribunal and file with the Tribunal a Form 23 Statement of Delivery evidencing delivery of them on the applicant.