Steeves v. Stratford Police Service, 2016 HRTO 1301

Human Rights Tribunal of Ontario

B E T W E E N:

Vincent Steeves Applicant

-and-

Stratford Police Service Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: October 6, 2016 Citation: 2016 HRTO 1301 Indexed as: Steeves v. Stratford Police Service

1This Interim Decision addresses the applicant’s request to call the evidence of his physiotherapist, Todd Taylor, by teleconference. The applicant filed a Form 10 Request for an Order During Proceedings and the respondent filed a Form 11 Response to a Request for an Order During Proceedings.

2The applicant notes Mr. Taylor treated him and had telephone contact with the applicant’s employer about the applicant’s return to work. Mr. Taylor now runs his own business in Ottawa. The applicant submits it would cause Mr. Taylor financial hardship, including having to pay for air travel, to have to travel to London to attend the hearing.

3The respondent objects to Mr. Taylor testifying by teleconference. It submits that s. 5.2(2) of the Statutory Powers Procedure Act 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.

4The respondent takes the position that it would be prejudicial to have Mr. Taylor testify by teleconference because it would deprive it of a fair opportunity to cross-examine him on an incident at the market on June 23, 2012 that it views as crucial because it concluded that the applicant embellished or falsified the facts when he reported the incident and his resultant injury.

5Mr. Taylor will testify with respect to his examination of the applicant both before and after the marketplace incident.

Analysis and Decision

6The 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 electronically. See: Ivanescu v. Credit Valley Hospital, 2012 HRTO 1211 (“Ivanescu”) and Pinkney v. Datex Billing Services, 2009 HRTO 1732 (“Pinkney”).

7In this case, the respondent did not explain how it would be deprived of a fair opportunity to cross-examine Mr. Taylor simply because his evidence would be given by telephone and not in person.

8The respondent also did not suggest any other concern about Mr. Taylor testifying outside the visual scrutiny of the Tribunal. The respondent refers to Pinkney as standing for the proposition that visual scrutiny is necessary. I disagree with that proposition, particularly since in my view a witness’s demeanour is not a reliable indicator of credibility. See also, Ivanescu at para. 21.

9With respect to this witness giving evidence with respect to a crucial event, I am not persuaded that this necessitates Mr. Taylor’s attendance in person. As the Tribunal stated in Ivanescu at paragraph 22:

[…] I am not persuaded that how the claimant’s doctor physically comports herself during her testimony will assist me in determining the credibility and reliability of her medical evidence. Nor am I persuaded that the respondent employer’s counsel will be impeded in her ability to conduct an effective cross-examination of the claimant’s doctor if she is unable to see her when she testifies.

10Sometimes it may be necessary to inconvenience witnesses to enable the parties to properly call and challenge testimonial evidence, but I am not convinced that this is the case with respect to this witness. Even if one accepts that credibility of a witness is a reason to have the witness testify in person, in this case in any event it is not the credibility of the physiotherapist that is at issue, but the credibility of the applicant. The respondent will be able to cross-examine Mr. Taylor about the information the applicant gave him. As pointed out in Cann (at para. 9):

[…] it is an exceedingly rare situation where I am called upon to assess the credibility of a medical professional, in the sense of whether or not they are telling the truth, as opposed to assessing such things as whether there is a sufficient medical and/or evidentiary basis to support any diagnoses, prognoses or recommendations they may have made. In my view, this can readily be accomplished by hearing the doctor’s evidence by teleconference [...]

11As stated in Cann v. AS 4Finance Ltd., 2014 HRTO 1260 (“Cann”) (at para. 9):

. . . it is not at all uncommon for doctors to testify by teleconference at a hearing. While I appreciate that witnesses are often inconvenienced by having to appear in person to testify and are thereby taken away from their work, it seems to me that medical professionals are in a somewhat different category owing to the nature of their work and the frequency with which they are called upon to testify in disability discrimination cases before this Tribunal.

12I am satisfied that permitting Mr. Taylor to testify by telephone is a fair, just and expeditious in this case.

ORDER

13The applicant’s request for Mr. Taylor to testify by telephone is granted.