Bouchard v. 1894773 Ontario Inc. o/a Andy Meyers Lodge, 2016 HRTO 335

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: March 15, 2016 Citation: 2016 HRTO 335 Indexed as: Bouchard v. 1894773 Ontario Inc. o/a Andy Meyers Lodge

WRITTEN SUBMISSIONS

Andy Bouchard, Applicant Rhonda Howells, Representative

1894773 Ontario Inc. o/a Andy Meyers Lodge and Julian Kalka, Respondents Nicole Smith, 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 employment because of disability. This matter is scheduled for hearing on April 4 and 5, 2016 in Thunder Bay, Ontario.

2This Interim Decision addresses three Requests for an Order During Proceedings filed by the respondents. The first, filed on February 23, 2016, requests that the Tribunal permit most of its witnesses to testify by telephone. The second, filed on February 24, 2016, request that the Tribunal exclude from evidence a news release about the organizational respondent and its employees. The third, also filed on February 24, 2016, requests that the Tribunal order the applicant to produce documents regarding his claims for Employment Insurance. The applicant filed responses to these requests on March 7, 2016.

Request for Witnesses to Testify by Telephone

3The respondents request that the Tribunal permit all of their witnesses, with the exception of the personal respondent, to testify by telephone. The respondents submit that three of the witnesses reside in the United States of America (“USA”). Accordingly, requiring them to testify in person would impose great hardship on them because of the time required to travel to Thunder Bay. Two of the witnesses from the USA are also employers and their absence to testify would negatively affect the operation of their businesses. The respondents submit that the cost to them to bring the witnesses to the hearing from the USA will be significant.

4The respondents submit that the remainder of their witnesses reside in the Vermillon Bay/Dryden area, which is approximately 350 to 400 kilometres from Thunder Bay. The respondents submit that obliging them to take two days out of their schedules would be a hardship to them. Again, the respondents submit that the costs associated with having these witnesses testify in person would be a financial hardship for the respondents.

5The respondents submit that allowing its witnesses to testify by telephone would not prejudice the applicant, as his representative is familiar with evidence presented in this format.

6The applicant opposes the request to allow their witnesses to testify by telephone. The applicant submits that the expected evidence of the respondents’ witnesses is to contradict the applicant’s expected evidence; therefore, credibility is an issue. The applicant submits that observing the witnesses’ demeanour while testifying will assist in assessing credibility.

7The applicant submits that he does not recall three of the respondents’ witnesses, Messrs. Lappen, Redfield and Wurgler by name. The applicant submits that the respondents have not produced a witness statement from Ms. Lappen and that the statements of Messrs. Redfield and Wurgler do not contain information allowing the applicant to recall the incidents to which they refer or who they are. The applicant submits that he will be prejudiced if he is unable to see these witnesses as he has no knowledge of them.

8The applicant submits that five of the respondents’ witnesses are their employees and the respondents can accommodate their attendance at the hearing. The applicant submits that mere inconvenience and financial cost for the respondents should not trump the applicant’s right to face the respondents’ witnesses. The applicant noted that the respondents have not filed witness statements for two of their proposed witnesses, including Mr. Lappen, and cannot respond to the request for these witnesses to testify by telephone.

Analysis and Decision

9The 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.

10This 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.

11In my view, it is not appropriate, at this point, to determine the respondents’ request to have the witnesses in question testify by telephone. As noted above, two days of hearing have been scheduled on April 4 and 5, 2016. The applicant intends to present four witnesses and the individual respondent intends to testify in person. As a result, it is unlikely that there will be sufficient time to hear from any of the respondents’ other witnesses, particularly if the parties engage in Mediation/Adjudication (see below). Further hearing dates will almost certainly be required to complete the parties’ evidence. Accordingly, the respondent is not required to have the witnesses it requested to have testify by telephone in attendance at the hearing on April 4 and 5, 2016. However, Ryley Desautels and Dom Kondra, whose evidence appears to be limited and restricted to factual observations, should be available to testify by telephone in the afternoon of April 5, 2016, if time permits, and if I determine during the hearing that it is appropriate to allow them to testify by telephone.

Request to Exclude Evidence

12The respondent requested that the Tribunal exclude from evidence a Ministry of Natural Resources News Release, dated January 14, 2014. The document, which is included in the documents the applicant intends to rely upon, describes the outcome of several charges against the organizational respondent, its former owner and several of its employees and clients. The respondent submits that the charges were laid in 2009 and are irrelevant to these proceedings. The applicant submits that the document is relevant, reliable, necessary and fair to hear. The applicant submits that the respondent argues that the applicant caused the respondent to lose business. The applicant submits that news of the convictions involving the organizational respondent, its former owner, and employees resulted in loss of business.

Analysis and Decision

13The issue in this case is whether the respondents’ decision to dismiss the applicant amounts to a violation of the Code. The respondents’ position is that they dismissed the applicant because of the applicant’s defamatory and unprofessional conduct with clients that they state caused some clients not to return. Whether there were other factors that may have caused a decline in the respondents’ business is not relevant to this issue. Accordingly, at this point, the news release does not appear to be relevant. The applicant may revisit this issue if, during the course of the hearing, the relevance of this document becomes more apparent.

Production Request

14The respondents requested that the Tribunal order the applicant to produce copies of all documentation related to his Employment insurance claims from October 1, 2014 to present. The respondents submit that these documents are relevant to the applicant’s Employment Insurance loss claim. The applicant submits that he provided information regarding his Employment Insurance claim in the documents he intends to rely upon. The applicant also attached a document entitled “My Current Claim” setting out the applicant’s past claims history to his response to the request for order.

Analysis and Decision

15At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute.

16In my view, documents related to the applicant’s claim for Employment Insurance benefits are arguably relevant to the remedies the applicant seeks and should be disclosed. The applicant has disclosed some documents regarding his Employment Insurance claim, but it is not clear that he has disclosed all such documents in his possession. Accordingly, it is appropriate to direct the applicant to produce all documents in his possession regarding his Employment Insurance claim.

Orders

17The respondents are not required to have the witnesses they requested to have testify by telephone in attendance at the hearing. However, Ryley Desautels and Dom Kondra should be available to testify by telephone in the afternoon of April 5, 2016, if time permits, and if I determine during the hearing that it is appropriate to allow them to testify by telephone.

18The Ministry of Natural Resources News Release of January 14, 2014 does not appear to be relevant to any issue in these proceedings. The relevance of this document may be revisited during the hearing, if appropriate.

19Within seven days of the date of this Interim Decision, the applicant shall produce to the respondent all documents in his possession related to his claim(s) for Employment Insurance between October 1, 2014 to the date of this Interim Decision.

Other Matters

Testimony of the Applicant’s Physician

20In an earlier Interim Decision in this matter, 2016 HRTO 183, the Tribunal granted the applicant’s request to allow his physician to testify by telephone. By letter dated February 23, 2016, the applicant’s representative advised that the applicant’s physician shall be available to testify by telephone at 10 a.m. on April 5, 2016 and that he has made himself available to testify for one hour.

21Given the expected evidence of the applicant’s doctor, it is not unlikely that his testimony, including cross-examination, will require more than one hour. The general expectation is that a witness will continue to testify until the parties have completed their respective examinations, and, absent agreement of the parties or an order of the Tribunal, an arbitrary time limit for a witness’ testimony is not appropriate. The applicant must ensure that his physician is able to attend the hearing until his testimony is completed either on his agreement or by issuing a summons to him.

Mediation Adjudication

22I take this opportunity to advise the parties that I will offer the parties Mediation/Adjudication, pursuant to Rule 15A of the Tribunal’s Rules of Procedure, at the commencement of the hearing, as is my normal practice. I would be grateful if the parties would consider whether they are willing to attempt Mediation/Adjudication prior to the hearing.