Pourasadi v. Bentley Leathers Inc., 2016 HRTO 879

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robabeh Pourasadi

Applicant

-and-

Bentley Leathers Inc.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: July 4, 2016

Citation: 2016 HRTO 879

Indexed as: Pourasadi v. Bentley Leathers Inc.

WRITTEN SUBMISSIONS

Robabeh Pourasadi, Applicant

Marisa Scotto di Luzio, Counsel

Bentley Leathers Inc., Respondent

Jodi Gallagher Healy, Counsel

1Hearing dates for this Application are scheduled for July 18-19, 2016. These hearing dates will proceed as scheduled.

2This Interim Decision addresses the following issues:

a. the scope of the remaining issues in this case;

b. the applicant’s request to add two witnesses to her witness list;

c. the applicant’s request to add documents to her list of documents to be relied upon at the hearing; and

d. whether the evidence of the applicant’s witness, T.R., heard on the first day of the hearing is relevant to the issues that remain to be decided in this case.

remaining issues to be addressed in hearing

3In her Application, the applicant alleged that the respondent discriminated against her because of disability contrary to Code when it terminated her employment. The applicant was employed by the respondent as a Store Manager in the respondent’s Promenade store. During her employment, she developed a work-related injury to her right wrist. In her Application, she claimed that the respondent failed to provide reasonable accommodations for her disability up to the point of undue hardship. In her Application, the applicant alleged that the respondent “refused to provides accommodated duties for me, no matter what solution I put through to keep my job”.

4This Application has so far not followed the traditional trajectory through the Tribunal’s hearing process. The background to the Tribunal’s consideration of the Application thus far is set out in Interim Decision, 2015 HRTO 138. After hearing half a day of evidence, I sought submissions on a preliminary issue before continuing to hear the case on its merits, as it seemed to me that addressing this preliminary issue at the outset would allow for the rest of the hearing to proceed in a more focused manner.

5The applicant’s position is that the respondent did not properly consider possible accommodation options for her disability. The respondent’s position is that it met its duty to accommodate in this case. Earlier in this proceeding, I asked the applicant what accommodation options she is claiming the respondent should have considered that it did not. As reviewed in my Interim Decision, the applicant put forward a number of options that she claimed the respondent should have considered that would have reasonably accommodated her disability-related restrictions.

6The Interim Decision deals with two of the options put forward by the applicant. As set out in the Interim Decision, the applicant conceded that the Code does not require the respondent to have continued to schedule a second employee during the time that the applicant would normally have been working alone in case there was a need to perform duties that the applicant was incapable of performing.

7The Interim Decision also addresses a second form of accommodation that the applicant alleged that the respondent should have considered. That second form of accommodation was to permit the applicant to ask customers who wished to purchase an item that would require her to go outside her physical restrictions to return to the store at a time when another staff member could assist them. In the Interim Decision, I found that the duty to accommodate under the Code would not require the respondent to provide such a form of accommodation.

8A third accommodation option that the applicant claimed the respondent should have considered was to transfer her to a larger store. Although it is unclear at this point, this option appears to have been raised during the Workplace Safety and Insurance Board (“WSIB”) work transition process. Accordingly, the remaining issues in this case are the following:

a. Did the respondent breach the procedural component of the duty to accommodate by failing to canvass all available accommodation options?

b. Did the respondent breach the substantive component of the duty to accommodate the applicant’s disability-related restrictions by failing to transfer the applicant to a larger store with more staff available to assist her with duties she could not perform due to her disability-related restrictions?

c. If the respondent discriminated against the applicant by breaching its duty to accommodate the applicant’s disability-related restrictions, what is the appropriate remedy?

9These are the three issues remaining to be addressed in the hearing.

Applicant’s Request to add witnesses

10The applicant requested to add two witnesses to her list of witnesses for the case: (1) the applicant’s neurologist and (2) one of the applicant’s co-workers.

Timing of Request

11The respondent submitted that the applicant’s request should be dismissed as untimely and an abuse of process. I do not agree that the request should be dismissed on this basis. I agree that the applicant should have identified the additional two witnesses and the additional documents during the pre-hearing disclosure that was due prior to the first hearing day in this case. However, I see no basis on which to find that it is an abuse of process to put forward relevant evidence at this stage of the process. In my view, the respondent has had ample notice of the applicant’s request and ample time to respond to the proposed new evidence. For this reason, I find the decisions cited by the respondent are distinguishable in that they involve situations where a party sought to add witnesses or documents shortly before a hearing or on the first day of a hearing.

12For example, in Escudero v. Ice Dreams Skating Academy, 2015 HRTO 482, the Tribunal was dealing with a situation where an applicant made a request for the production of documents just three weeks before a hearing. The Tribunal noted that the requests were intended to be a means for the applicant to obtain the names of possible additional witnesses who could be called at the hearing and documents that could be submitted as evidence. This situation is very different from the situation in the present case.

13In Agbalugo v. York University, 2011 HRTO 1316, the Tribunal was dealing with a situation where an applicant sought to add nine new witnesses shortly before a hearing. In that decision, the Tribunal stated that the applicant should not be permitted to use the passage of time to re-think, change, or expand the evidence he originally intended to rely upon. In that case, the Tribunal had adjourned the hearing three times due to the applicant’s medical condition. Although parties often refine their positions or strategies during the Tribunal’s process, I agree that an applicant should not be permitted to significantly change their strategy or add new issues midway through a Tribunal proceeding. It is for this reason that I have precisely set out the remaining issues to be addressed in this case in the previous section of this Interim Decision.

14For the above reasons, I do not find that it is an abuse of process for the applicant to seek to add witnesses or documents at this stage. As noted above, the process in this case has not followed the Tribunal’s usual process due the preliminary issues dealt with in my Interim Decision. The applicant’s request to add witnesses and documents was made with ample notice prior to the resumption of the hearing after the determination of these preliminary issues. In the circumstances of this case, I am not persuaded that the respondent is prejudiced by the timing of the applicant’s request.

Applicant’s neurologist – Dr. Wong

15The applicant’s neurologist will be permitted to testify in this case. I accept that he has relevant evidence to provide as he was the applicant’s treating physician at the relevant time. He also completed several medical forms related to the applicant’s WSIB claim. In my view, Dr. Wong has relevant evidence to provide in relation to the forms he filled out for the applicant during the time period relevant to this Application. He will only be permitted to testify to the restrictions identified in the medical information that the applicant provided to the respondent during the relevant time period.

16I am aware that the parties have a different view of whether the Functional Ability Forms (“FAFs”) submitted by the applicant to the respondent identified restrictions to the applicant’s right arm/hand only or to both arms/hands. If it appears to the respondent that Dr. Wong’s testimony conflicts with the FAFs submitted to the respondent, this is an issue on which the respondent will be able to cross-examine Dr. Wong. I agree with the respondent that an employer’s accommodation obligations are informed by the information provided by an employee at the time of the events in question. However, in certain circumstances, an employer may have a duty to make further inquiries to clarify information as part of their accommodation obligations. This is an issue on which both parties may make submissions at the hearing.

17In general, witnesses in Tribunal proceedings testify in person. However, the Tribunal may permit witnesses to testify by electronic methods where the nature and extent of their testimony makes this arrangement fair, just and expeditious. The 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 electronically. See: Ivanescu v. Credit Valley Hospital, 2012 HRTO 1211 and Pinkney v. Datex Billing Services, 2009 HRTO 1732.

18In several cases, the Tribunal has permitted physicians to testify electronically where credibility is not in issue. In my view, Dr. Wong’s credibility is not a significant issue in the case and the assessment of his credibility will not be substantially affected if he testifies electronically. It is preferable for Dr. Wong to testify by video link rather than telephone. The Tribunal uses a “skype” type program to permit witnesses to testify by video link. The program is accessible using any computer with a webcam. The applicant is directed to confirm that Dr. Wong has access to a computer with a webcam. If so, he must testify by video link. If not, he will be permitted to testify by telephone.

19The respondent argued that extensive documentation will be tendered during his evidence or in cross-examination and that this was a reason to require him to testify in person. I am not persuaded that this is the case. Counsel on this case have an admirable history of communicating effectively with each other and with the Tribunal. In my view, the parties can work together to ensure that Dr. Wong has the relevant documentation before him for purposes of testifying and being cross-examined in this case.

Applicant’s co-worker

20The applicant requested permission to call Susana Colmaneres, one of her co-workers from the Promenade store, to testify in this case. This individual was one of the employees that the respondent scheduled to assist the applicant with work outside her physical restriction. In addition, this co-worker worked as a sales representative and assistant manager, primarily in the Fairview Mall store which is classified as a “AA” size store. The respondent opposed the addition of this witness on the basis that the Fairview Mall store differs from other “AA” stores such as the Bramalea City Center store. The respondent raised a number of points about the Fairview Mall location and argued that it would not be an appropriate location as an accommodation for the applicant’s disabilities.

21In my view, Ms. Colmaneres’ proposed evidence regarding the Promenade store is irrelevant to the remaining issues in this case which are set out above. However, I find that Ms. Colmaneres’ may have relevant evidence to provide in regards to the general differences between the staffing levels as between a store like the Promenade store and a larger AA store. I recognize that the respondent will bring evidence that the Fairview store would not have been an inappropriate accommodation for the applicant because it asserts that store managers are required to work alone for some portion of the day at that store. However, at this point, none of the information set out in the respondent’s submissions have been put in evidence at the hearing.

22I accept that Ms. Colmaneres has some relevant evidence to provide in relation to the following two issues: (1) the differences she observed between the Promenade store and a “AA” store such as the Fairview store and (2) any differences in how products are displayed as between smaller and larger stores. In my view, all of the objections made by the respondent to Ms. Colmaneres’ evidence are points that can be pursued in cross-examination or points on which I require evidence from the respondent’s witnesses.

Applicant’s Request to add documents

23The applicant requested permission to add 13 documents to her list of documents to be relied upon at the hearing. The respondent opposed the applicant’s request on the basis that the applicant did not file the documents within the pre-hearing disclosure timeframe provided under the Tribunal’s Rules of Procedure. The respondent also submitted that all the documents were previously available to the applicant and some of the documents already appear in the WSIB documents filed by the parties.

24As noted above, I am not persuaded that the respondent is prejudiced by the applicant’s late disclosure. It would seem that, prior to this proceeding, the respondent would have been in possession of, or familiar with, all of the documents recently filed by the applicant. The documents do not appear to be new documents that the respondent is seeing for the first time. In addition, as noted by the respondent, many of the documents are contained in the applicant’s WSIB file that has already been filed with the Tribunal. Finally, the respondent has had ample opportunity to review the documents and prepare its response to them prior to the continuation dates following my Interim Decision in this case.

25I find that all of the documents sought to be added by the applicant are arguably relevant with the possible exception of a report of store budget hours which appears to relate to the Promenade store. I will permit the applicant to add all documents to the list of documents she intends to rely upon at the hearing and hear any objections as to the relevance of any particular documents at the hearing.

Evidence of Applicant’s co-worker T.R.

26At the first hearing day, I heard evidence from T.R. who was one of the applicant’s co-workers at the Promenade store. I heard T.R.’s evidence in chief and part of her cross-examination before I identified the preliminary issues regarding accommodation options at the Promenade store addressed in my Interim Decision. T.R.’s testimony related to her work with the applicant in the Promenade store. Any evidence regarding the Promenade store is no longer relevant in light of the applicant’s concession and the ruling in my Interim Decision, which are both discussed above. Therefore, T.R.’s evidence will be struck from the record as it has no relevance to the issues identified above that remain to be addressed by the Tribunal.

Mediation-Adjudication

27At the outset of the hearing, I will ask the parties whether they are interested in resuming the mediation-adjudication in this case. In my view, such a process would be beneficial in the circumstances of this case. The parties may advise me of their willingness or unwillingness to take part in a mediation-adjudication either prior to, or at the outset of, the hearing.

Order

28For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to call Dr. Wong to testify is granted. However, his testimony must be limited to the issues set out in paras. 15-16. The applicant is directed to confirm whether Dr. Wong has access to a computer with a webcam. Within 7 days of this Interim Decision, she must advise the Tribunal, copying the respondent, whether he does or does not. I will send out further directions to the parties once I receive her response.

b. The applicant’s request to call Susana Colmaneres as a witness is granted. However, her testimony must be limited to the issues set out in paras. 21-22 above.

c. The applicant’ request to add the 13 documents recently submitted to her list of documents is granted. I will hear any objections as to the relevance of any particular documents at the hearing.

d. The evidence of the applicant’s co-worker T.R. is struck from the record.