Bouchard v. 1894773 Ontario Inc., 2016 HRTO 183

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andy Bouchard

Applicant

-and-

1894773 Ontario Inc. o/a Andy Meyers Lodge and Julian Kalka

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: February 9, 2016

Citation: 2016 HRTO 183

Indexed as: Bouchard v. 1894773 Ontario Inc.

WRITTEN SUBMISSIONS

Andy Bouchard, Applicant

Rhonda Howells, Representative

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 disability. This matter is scheduled for hearing on April 4 and 5, 2016, in Thunder Bay, Ontario.

2This Interim Decision addresses a Request for an Order During Proceedings the applicant filed on January 10, 2016. The respondents did not file a response to the request and the time for doing so has passed. The applicant seeks an order permitting his physician, Dr. Gagnon, to testify electronically. The applicant submitted that Dr. Gagnon’s practice is located in Vermilion Bay, Ontario, which is approximately 400 kilometres from the hearing location. Dr. Gagnon is the only physician in Vermilion Bay and also has commitments to the hospital in Dryden, Ontario. The applicant submitted that requiring Dr. Gagnon to testify in person will require him to travel to Thunder Bay at the applicant’s expense. The applicant submitted that the respondents will suffer no prejudice if Dr. Gagnon testifies electronically.

Analysis and Decision

3The 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.

4This 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.

5The 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, above. The respondents did not respond to the Request and therefore did not identify any prejudice to them if the applicant’s physician testifies by electronic means.

Order

6The Tribunal orders as follows:

1. The applicant’s physician may testify electronically.

Direction

7The Registrar shall provide the necessary information to permit Dr. Gagnon to testify electronically, most likely by conference call. To facilitate scheduling, the applicant shall indicate, within 14 days of the date of this Interim Decision, when he expects Dr. Gagnon will testify.