Campbell v. Levy Law Professional Corporation, 2016 HRTO 121

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tamika Campbell

Applicant

-and-

Levy Law Professional Corporation

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: January 26, 2016 Citation: 2016 HRTO 121 Indexed as: Campbell v. Levy Law Professional Corporation

WRITTEN SUBMISSIONS

Tamika Campbell, Applicant Marisa Scotto di Luzio, Counsel

Levy Law Professional Corporation, Respondent No one appearing

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination with respect to employment because of race, colour and disability. This Interim Decision addresses a Request for an Order During Proceedings filed by the applicant on January 4, 2015. The respondent did not respond to this request and the deadline for doing so has passed.

The Request

Amendment

2In her request, the applicant seeks to amend the Application to add the prohibited ground of reprisal and also seeks the Tribunal's permission to have her physicians testify by teleconference. With respect to the request to amend the Application, the applicant made the following submissions. The applicant was not represented by legal counsel when she drafted the Application and did not understand what a "reprisal" is under the Code. Nonetheless, the Application alleges that the respondent dismissed the applicant after she complained about racist comments made to her in the workplace. Accordingly, the essential facts on which the applicant's reprisal allegation is based are set out in the Application and the respondent provided a non-discriminatory explanation for its decision to dismiss the applicant. The applicant does not seek to expand the scope of the Application by adding new facts and the respondent is not required to file an amended Response. The hearing is scheduled for February 16 and 17, 2016.

Analysis and Decision

3In determining requests to amend pleadings under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See Ewing v. Thunder Bay Police Services Board, 2011 HRTO 1066, Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926 and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

4Although the request to amend the Application comes late in the proceeding, the applicant does not seek to expand the Application by introducing new facts. Rather, the applicant seeks to characterize the respondent's alleged actions as a reprisal as well as discrimination. There is a basis for this characterization in the facts pleaded in the Application and I consider the amendment to be minor. The respondent has not identified any prejudice it will suffer if the request is granted.

Testimony by Teleconference

5The applicant made the following submissions. The respondent dismissed her in part because of the symptoms of her disability. The applicant's physicians will testify about the applicant's diagnosis, her symptoms and her treatment at the relevant time period. The applicant expects that her physicians' evidence will be consistent with their clinical notes, which have been disclosed. The respondent will not be prejudiced if the physicians testify by teleconference because the physicians' expected evidence does not raise credibility issues.

Analysis and Decision

6The general expectation is that witnesses in proceedings before the Tribunal will testify in person. However, the Tribunal may permit witnesses to testify by telephone where the nature and extent of their testimony makes this arrangement fair, just and expeditious: Pinkney v. Datex Billing Services, 2009 HRTO 1732 ("Pinkney").

7This is consistent with the Tribunal's power, pursuant to Rule 3.5 of the Tribunal's Rules of Procedure, to "conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate." The Tribunal's power to conduct telephone hearings is also informed by s. 5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"), which states:

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.

8The Tribunal has held that the burden is on the party opposing an electronic hearing to show that it may be significantly prejudiced if the hearing is held by telephone: Pinkney, supra.

9The applicant did not respond to the Request and therefore did not identify any prejudice to it if the applicant's physicians testify by teleconference or video conference. In any event, it does not appear that their credibility will be an issue, which might make their testimony by electronic means inappropriate. I note that the Tribunal had video conference capability and receiving evidence by video conference is preferable to teleconference. Applicant's counsel is directed to contact the Registrar to arrange for video conference for these witnesses. If a video conference is not possible, then the witnesses may testify by teleconference.

Order

10The Tribunal orders as follows:

1. The Application is amended to include the Code ground of reprisal; and,
2. The applicant's physicians may testify by video conference, or, if video conference is not possible, teleconference.