Morrison v. Toronto Central Community Care Access Centre, 2016 HRTO 766

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Morrison Applicant

-and-

Toronto Central Community Care Access Centre Respondent

-and-

Canadian Office and Professional Employees Union Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: June 6, 2016 Citation: 2016 HRTO 766 Indexed as: Morrison v. Toronto Central Community Care Access Centre

WRITTEN SUBMISSIONS

Toronto Community Care Access Centre, Respondent Matthew Demeo, Counsel

1The hearing in this matter is scheduled for June 20 and 21, 2016. This Interim Decision deals with the respondent’s request that the Tribunal order the applicant to provide more detailed witness statements as well as certain documents referred to in the applicant’s witness list. I also address whether the applicant’s treating physicians will be permitted to testify by phone.

2The respondent filed a Request for Order During Proceedings (“RFOP”) in which it requested production of detailed witness statements from the applicant and raised the other issues dealt with below. The Tribunal abridged the time for the applicant’s response to the RFOP due to the proximity of the hearing date. The applicant did not file a response to the RFOP and the time for doing so has now passed.

APPLICANT’S WITNESS LIST

3The applicant filed a witness list listing seven witnesses she intends to call at the hearing. She has provided only one-line summaries of the topics that the witnesses are expected to address.

4The Tribunal’s Rules require parties to file detailed witness statements. As the Tribunal stated in C.D. v. Wal-Mart Canada, 2010 HRTO 426 at para. 7:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

5The applicant’s failure to provide detailed witness statements is particularly problematic in this case due to the lack of detailed particulars in her Application and her failure to provide much more in the way of particulars in response to the Tribunal’s directions to do so.

6The applicant must provide detailed witness statements that set out in detail the expected testimony of each of her intended witnesses. To be clear, each witness statement must set out the proposed evidence of each witness, including what exactly was said or done, who said or did it, where and when any alleged incidents occurred or statements were made.

Documents referred to in Witness List

7In the one-sentence summary provided for Dr. Kamille, the applicant refers to “reports, notes and letters bearing on this application”. In her summary provided for Dr. Teitle, the applicant refers to “reports, notes and letters that have been sent to [the respondent] regarding requests for accommodation since 2007.

8The respondent has indicated that it has no notes from Dr. Kamille in its medical file for the applicant. The applicant has not filed any notes, reports or letters from either doctor as part of the documents she intends to rely upon at the hearing.

9If the applicant intends to rely upon any reports, notes, or letters by either of these two doctors, she must file copies of them with the Tribunal immediately and copy the respondent. These doctors will not be permitted to refer to any reports, notes or letters that the applicant has not filed with the Tribunal and delivered to the respondent by the deadline set out in the Order section below.

10The respondent requested that the applicant produce the full name of Dr. Kamille and a curriculum vitae for him. I grant the respondent’s request for Dr. Kamille’s full name. I am not persuaded that a curriculum vitae is required. However, the respondent will be free to question Dr. Kamille as to his experience and area of specialty at the hearing.

In-person testimony

11Instead of filing a request to have the Tribunal permit her doctors to testify by phone, the applicant simply noted in her witness list that they would be testifying by phone. This is not a proper way of proceeding. Testimony at a merits hearing before the Tribunal is presumed to be given in person unless the Tribunal permits a witness to testify by some other means.

12Rule 3.5 states that the Tribunal may conduct hearings in person, in writing, by telephone or by other electronic means, as it deems appropriate. In addition, s. 5.2(2) of the *Statutory Powers Procedure Act*, R.S.O. 1990, c. S.22, as amended, 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.

13While the Tribunal has allowed witnesses to testify by phone in certain circumstances, it will generally not do so where the credibility of the witness is a significant issue, or where the evidence of the witness is extensive or key to the proceedings. Zeividavi v. Catholic Immigration Services, 2011 HRTO 406 at para. 15.

14Given that there do not appear to be any issues of credibility associated with Dr. Teitle’s testimony, I will permit him to testify by phone.

15By contrast, it appears that Dr. Kamille’s may raise significant credibility issues. As such, I am not prepared to allow him to testify by teleconference, and he must appear in person.

scope of evidence

16After having reviewed the applicant’s detailed witness statements, I may make further directions to ensure that witness testimony is limited to the timely issues raised in the Application.

order

17The Tribunal orders as follows:

a. Within 7 days of the date of his Interim Decision, the applicant must provide detailed witness statements that set out in detail the expected testimony of each of her intended witnesses. As noted above, each witness statement must set out the proposed evidence of each witness including what exactly was said or done, who said or did it, where and when any alleged incidents occurred or statements were made. The witness statement for Dr. Kamille must contain his full name.

b. Within 7 days of the date of this Interim Decision, the applicant must file any reports, notes, or letters by either of Dr. Kamille or Dr. Teitle that she intends to rely upon at the hearing or that either of these doctors intends to refer to at the hearing.

c. Within 7 days of the date of this Interim Decision, the applicant must provide a full name of Dr. Kamille to the respondent.

d. Dr. Kamille will be required to testify in person. Dr. Teitle will be permitted to testify by phone.