Erica Tanny v. Coventry Connections Inc. o/a Blue Line Taxi, 2016 HRTO 1416

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Erica Tanny Applicant

-and-

Coventry Connections Inc. o/a Blue Line Taxi Respondent

INTERIM DECISION

Adjudicator: Jennifer Khurana Date: November 2, 2016 Citation: 2016 HRTO 1416 Indexed as: Tanny v Coventry Connections Inc.

WRITTEN SUBMISSIONS

Erica Tanny, Applicant Self-represented

Coventry Connections Inc., o/a Blue Line Taxi, Respondent Porter Heffernan, Counsel

1The hearing of this Application commenced on June 6 in Ottawa and is to be continued on November 6 and 7, 2016.

BACKGROUND

2The applicant proposes to call Leslie Bruce, an occupational therapist, as an expert witness to provide evidence with respect to the applicant’s wheelchair, the manner in which it is stowed and used in regular sedan taxi cabs, and the applicant’s concerns regarding the use of accessible minivans. She submits that Ms. Bruce is an expert in various areas including the design features and stowage of mobility devices, in the factors enhancing or limiting the functional use by persons with disabilities, and through her experience as an occupational therapist. The applicant provided a copy of Ms. Bruce’s curriculum vitae and her witness statement as part of her disclosure obligations.

3The respondent opposes having Ms. Bruce qualified as an expert and asks that the Tribunal exclude her evidence. The parties provided submissions on Ms. Bruce’s proposed evidence at my request.

4While I accept that Ms. Bruce will testify at the hearing and agree to qualify her as an expert, I find that the scope of her evidence should be limited as set out below. I will provide full reasons in my final decision as required and appropriate.

PROPOSED EVIDENCE OF MS. BRUCE AND SCOPE OF HER TESTIMONY

5I find some of the issues in dispute in this proceeding sufficiently related to Ms. Bruce’s field of expertise as an Occupational Therapist with knowledge related to the Assistive Devices Program, including the cost and repair of mobility devices.

6The applicant alleges, among other things, that two of the drivers dispatched to her residence refused to allow her to transport the main body or seat of her collapsible wheelchair in the back seat of their taxis. The applicant testified on the first day of hearing that that the body of her wheelchair can be transported on the back seat without the wheels or any mechanical part touching the seat or subjecting it to damage. The applicant also testified about the cost and potential hardship she would face if her customised wheelchair were to be damaged in the trunk of a vehicle and explained that this is why she insists that it be transported on the back seat only.

7Part of the respondent’s defence is that it is not reasonable for the applicant to expect drivers to transport her mobility device in precisely the manner she prefers. The respondent appears to suggest that it is reasonable for its drivers to stow the applicant’s wheelchair in the trunk of the car and to refuse the applicant’s request to have the body of the chair travel with her in the backseat, particularly in light of concerns about maintaining the cleanliness of the cars.

8To the extent that Ms. Bruce’s proposed testimony will address the cost, damage, repair and process when a mobility device is damaged, I find her evidence relevant and will allow it. The parties dispute the reasonableness of the applicant’s request to travel with her wheelchair with her on the backseat, and Ms. Bruce appears to have relevant experience with other clients using similar devices and these devices being damaged in a vehicle.

9I do, however, agree with the respondent that much of Ms. Bruce’s proposed evidence is not necessary in light of the evidence the Tribunal has already heard and the issues in dispute. The respondent does not appear to dispute that the applicant can independently disassemble and stow her wheelchair, and the respondent acknowledges that the applicant provided a demonstration of this process at the hearing. I therefore do not need to hear Ms. Bruce’s testimony or observations with respect to the applicant’s use and stowing of the device. I also agree that the Tribunal does not need to hear Ms. Bruce’s proposed evidence with respect to the “over-the-seat” method of transporting the chair in a vehicle, which was already described in detail by the applicant in her testimony.

10The respondent also does not appear to dispute that the applicant is not required to travel in an accessible vehicle, whether a side-door or rear-door minivan. Email correspondence submitted by the respondent between the applicant and the respondent manager of fleet operations confirms the respondent’s policy regarding collapsible wheelchairs and that it will not force a particular type of vehicle on a customer if it is unnecessary. I therefore do not find Ms. Bruce’s proposed evidence on safety concerns with respect to accessible minivans, tie-downs, and using rigid wheelchairs as seats during transportation to be relevant. Similarly, the Tribunal also does not need to hear testimony from Ms. Bruce about the “RESNA recommendations” regarding the incidence of injury in crashes in using a wheelchair as a seat.

11While I will proceed to hear and consider the proposed expert evidence provided by Ms. Bruce, I will only hear evidence on the following topic listed in the witness statement submitted by the applicant:

• Ms. Bruce’s experience with the damage which can occur with trunk/improper stowage and the cost/difficulty of replacing a custom wheelchair frame;

12To the extent that the respondent disputes that Ms. Bruce’s field of expertise as an occupational therapist is sufficiently related to issue of the reasonableness of the applicant’s requests to transport the body of her mobility device, I will hear submissions from the parties about the weight to be given to Ms. Bruce’s evidence.

ORDER AND DIRECTION

13The applicant’s proposed witness, Ms. Leslie Bruce, is qualified as an expert. The evidence she proposed to give will be allowed at the hearing as set out in paragraph [11] above.