Chopra v. Dalton, 2016 HRTO 385

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paayal Chopra Applicant

-and-

Jennifer Dalton Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: March 24, 2016 Citation: 2016 HRTO 385 Indexed as: Chopra v. Dalton

WRITTEN SUBMISSIONS

Paayal Chopra, Applicant Self-represented

Jennifer Dalton, Respondent Joanna S. Rainbow, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") on July 9, 2015 that alleges discrimination with respect to the provision of goods and services.

2A hearing on the merits of the Application is scheduled for June 3, 2016 in Toronto.

3By email to the Tribunal dated February 18, 2016, the applicant requested that the hearing be converted to a telephone hearing from an in-person hearing. She stated that this request was "due to the fact I do not want to see these people". She also raised an issue with the legality of some of the documents that the respondent had disclosed as potentially relevant and stated, "I know these people will try to do more if I am actually in front of them".

4The respondent takes the position that, as outlined in the Tribunal's Guide to Preparing for a Hearing, parties are presumed to be ready and willing to attend a hearing and testify in-person. The respondent submits that the applicant must justify the need to convert the hearing to a telephone hearing and that she has not provided any compelling reasons to justify excusing her from providing her evidence in person.

5The respondent submits that she is represented by counsel so she will not have to speak directly to the applicant and that there is no reason to expect that counsel would treat the applicant any differently in-person than by telephone.

6The respondent further submits that the identity of the applicant prior to giving testimony may be important and may not be properly achieved on the telephone. In addition, credibility of the parties is an important issue in this case, and, in order to have a fair and expeditious hearing, the parties must attend in person.

ANALYSIS

7The applicant's request that the hearing proceed by teleconference raises issues as to how and whether this matter can proceed.

8Rule 3.5 of the Tribunal's Rules of Procedure state that the Tribunal may conduct hearings in person, in writing, by telephone, or by other electronic means, as it deems appropriate. Further, section 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, states:

Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.

9The Tribunal's general approach to participation at hearings is explained in Haskins v. Religious Hospitaliers of Hotel Dieu of St. Joseph of the Diocese of London, 2010 HRTO 1550 and Pinkney v. Datex Billing Services, 2009 HRTO 1732. Ordinarily, participants, especially parties, are expected to be available in person to testify, submit to cross-examination, and to question other witnesses.

10This is particularly the case where, as here, the credibility of the witnesses will be key: see Zeividavi v. Catholic Immigration Services, 2011 HRTO 406. Based on the pleadings, the parties' evidence is expected to differ in key areas. The determination of the issues raised in the Application will turn, to a large extent, on the Tribunal's assessment of the credibility of the witnesses, in particular that of the applicant and the respondent.

11In the circumstances of this case, where the outcome will turn on which witness or witnesses' version of the facts is preferred, it will be difficult for the Tribunal to fairly assess the credibility of all of the witnesses if they do not appear in-person. In my view, having the parties present in the hearing room when they provide evidence in chief and are cross-examined is essential for the Tribunal to weigh the credibility of the witnesses: see Zeividavi, above.

12In Zeividavi, the applicant's inability to attend the hearing was not Code-related. In that case, the applicant cited only expense and inconvenience in support of his request to testify by telephone or video.

13In this case, the applicant has not provided any Code-related reasons to support her request that she not be required to attend in person. One party stating that they do not want to see the other party cannot be a reason to justify excusing the parties from attending in-person to give evidence.

Order

14The applicant's request to convert the in-person hearing to a telephone hearing or to provide her evidence over the phone is denied.

15Within 20 calendar days of the date of this Interim Decision, the applicant shall confirm that she is prepared to attend the hearing in this matter in-person. If the applicant does not provide this confirmation, this Application may be dismissed as abandoned.

16I am not seized