Armstrong v. Workplace Safety and Insurance Board, 2016 HRTO 1468

Human Rights Tribunal of Ontario

B E T W E E N:

David Armstrong Applicant

-and-

Workplace Safety and Insurance Board and Chris Madden Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: November 15, 2016 Citation: 2016 HRTO 1468 Indexed as: Armstrong v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

David Armstrong, Applicant Self-represented

Workplace Safety and Insurance Board and Chris Madden, Respondent Erik Kupka, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination with respect to goods, services and facilities because of sex, including sexual harassment, sexual solicitation and reprisal.

2The Tribunal held one day of hearing in this matter on May 24, 2016. The applicant testified and the respondent began presenting its witnesses. Two further hearing dates have been scheduled on January 17 and 19, 2017. This Interim Decision addresses procedural requests made by the applicant and also his request for accommodation of disability related restrictions.

The Applicant's Request

3The applicant filed e-mail correspondence with the Tribunal on June 7 and August 4, 2016 and he also filed a Request for an Order During Proceedings on August 10, 2016. In these documents the applicant raised scheduling issues that have since been addressed. The applicant also requested that the Tribunal order the respondents to present as witnesses the authors of all of the documents contained in the respondents' document brief. The applicant submitted that he has the right to cross-examine these proposed witnesses because the documents contain inaccuracies. The applicant submitted that the respondent refused to make its employees available to be interviewed by the applicant and also refused to identify its employees that worked on the case. The applicant submitted that in these circumstances he was unable to identify the witnesses and also unable to indicate what their testimony would be, as is required by the Tribunal's Rules of Procedure ("the Rules").

4The respondents replied to the applicant's request in a letter dated June 16, 2016 and in a Response to a Request for an Order filed on August 19, 2016. The respondents submitted that the applicant has completed his cross-examination of one of the respondents' witnesses and is not entitled to question that witness further. The respondent submitted that the applicant may cross-examine any witness that the respondents call. The respondents submitted that they are not obliged to call witnesses that the Applicant may wish to cross-examine. The respondents submitted that the Application concerns an alleged incident of sexual harassment, and alleged reprisals as a result of the alleged harassment. The respondents submitted that their disclosure, including the applicant's WSIB file goes beyond the scope of the allegations of this Application.

Analysis and Decision

5The parties to an application to the Tribunal are generally entitled to choose the witnesses they wish to present. There is no free-standing right for a party to examine or cross-examine anyone he or she wishes, contrary to the applicant's assertion. The Tribunal will rarely recall a witness has after completion of his or her testimony. Pursuant to Rule 1.7(k) of the Tribunal's Rules of Procedure the Tribunal may, on the request of a party, direct another party to adduce evidence or produce a witness when that person is reasonably within that party's control. I am not satisfied that I should make such a direction. In my view, it is appropriate to make an order under Rule 1.7(k) when the requesting party provides a proper basis for concluding that the proposed witness can give relevant evidence that will assist the Tribunal. The applicant did not identify the witnesses he wishes to have produced or the evidence he expects they would give. The applicant's bare assertion that the documents contain inaccuracies is not a sufficient basis for making an order under Rule 1.7(k).

6I also note that the respondents' document brief contains the applicant's WSIB claim file, which contains the documentation regarding the applicant's claim for benefits under the Workplace Safety and Insurance Act. The Tribunal has no jurisdiction to assess the respondent's decisions regarding the applicant's entitlement to benefits. Consequently, whether there may be inaccuracies in these documents does not appear to be relevant to the issues before the Tribunal.

7Further, the respondent produced its document brief in December 2014 and the authors of the documents appear to be indicated on each document. Accordingly, the applicant has had ample time prior to the hearing to review the documents contained in the brief to determine whether there were documents he wanted to explore during the hearing and to take the appropriate steps to have witnesses appear at the hearing. Rule 17.2 of the Tribunal's Rule requires that each party provide a witness statement setting out each witness' expected evidence, which contemplates that a party may not have access to witnesses before a hearing.

8The applicant's request to require the respondent to produce witnesses is denied.

Accommodation Request

9The applicant submitted that his disability related restrictions require that answers to questions be given slowly and if necessary repeated to allow him to record the answers. The applicant submitted that he will also require time between questions in order to fully understand the responses. The applicant noted that he found it difficult to hear witnesses during the first day of hearing and stated that microphones may be necessary.

10The respondents stated that they did not oppose the applicant's request regarding accommodation.

11The applicant is entitled to accommodation of disability-related restrictions to permit him to participate in the hearing. The applicant's requests in this regard appear reasonable and are not opposed by the respondent. I note that the Tribunal's hearing rooms are equipped with microphones, but in any event the Tribunal shall ensure that the hearing proceeds at a pace that permits the applicant to participate fully.

12I note that the Tribunal has provided, at its expense, a Real Time Captioner for participants with similar restrictions. As the title suggests, a Real Time Captioner takes typed notes for the person requiring accommodation during the hearing and a hard copy of the notes can be provided. It appears that these services may assist the applicant and the Tribunal will retain a Real Time Captioner if he wishes.

Order

13The Tribunal orders as follows:

1. The applicant's request to require the respondents to produce witnesses is denied;
2. The Tribunal shall accommodate the applicants disability-related needs; and,
3. Within 14 days of the date of this Interim Decision, the applicant shall advise the Tribunal if he wishes the Tribunal to retain a Real Time Captioner to assist him during the hearing.