Dolny v. College of Massage Therapists of Ontario, 2016 HRTO 943

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Collin Dolny

Applicant

-and-

College of Massage Therapists of Ontario

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: July 19, 2016

Citation: 2016 HRTO 943

Indexed as: Dolny v. College of Massage Therapists of Ontario

WRITTEN SUBMISSIONS

Collin Dolny, Applicant

Self-represented

College of Massage Therapists of Ontario, Respondent

Anne Posno, Counsel

1The hearing of the merits of the Application began on May 24 and 25, 2016, and is scheduled to continue on July 27 and 28, 2016.

2On June 6, 2016, the applicant filed a request for accommodation of his disability-related needs during the hearing process. Specifically, he requested:

1. The Tribunal make an audio recording of the continuation of the hearing on July 27 and 28, 2016.

2. The Tribunal provide him with a transcript of the hearing that took place on May 24 and 25, 2016.

3. The Tribunal clearly instruct the respondent’s counsel to avoid "sharp practice", ask him questions in a slow, clear, methodical manner, and give him time to answer one question before proceeding to the next one.

4. The Tribunal order the respondent to submit any evidence it intends to rely upon at least 30 days before the hearing date.

3On June 10, 2016, the respondent filed a response to the applicant’s request, which stated:

1. The respondent has no objection to the hearing being audio recorded on July 27 and 28, 2016

2. The hearing on May 24 and 25, 2016 was not audio recorded, which precludes the possibility of a transcript.

3. The cross-examination of the applicant will continue to be conducted appropriately. During the hearing on May 24 and 25, 2016, the Tribunal disagreed with the applicant’s accusation that counsel was engaged in sharp practice. As soon as the applicant made a request, counsel agreed to slow down and to simplify the questions on cross-examination. Furthermore, the applicant’s request for regular breaks was fully accommodated without issue.

4. The respondent’s production of documents and witnesses were provided to the applicant months before the hearing, and excerpts from legislation and similar authoritative material were properly admitted into evidence when the applicant confirmed his knowledge of the material.

4On July 11, 2016, the applicant filed a request for an adjournment of the hearing on July 27 and 28, 2016 on the basis that it appeared that the Tribunal was not willing to grant his request for accommodation of his disability-related needs.

5The Tribunal makes the following orders and directions:

1. The Tribunal will make arrangements for the hearing to be audio recorded on July 27 and 28, 2016, and will provide a copy of the recording to both parties following the hearing.

2. The Tribunal cannot provide the applicant with a transcript of the hearing that took place on May 24 and 25, 2016 because the hearing was not audio recorded, and there is no such transcript. At the beginning of the hearing, I clearly informed the parties that the hearing was not being recorded, and if either party wanted the hearing to be recorded, a request would have to be made in accordance with the Tribunal’s Practice Direction on Recording Hearings. Neither party made such a request.

3. I issued directions about the cross-examination issue during the hearing on May 25, 2016. I did not observe the respondent’s counsel engaging in any sharp practice during her cross-examination of the applicant. However, I did observe that on a few occasions, she asked the applicant two questions in rapid succession, which did not allow him to fully respond to the first question and confused him. I directed counsel to allow the applicant to fully answer the first question before asking a second question. I also directed the applicant to ask for and take breaks as needed during the cross-examination. Both parties complied with these directions. If the applicant has further issues with the manner of cross-examination during the continuation of the hearing, he is entitled to object, and I will deal with any such issues at that time after hearing submissions from both parties.

4. The parties have already complied with their disclosure obligations pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure. If the respondent produces new documents or witnesses during the continuation of the hearing, the applicant is entitled to continue to object, and I will deal with any such issues at that time after hearing submissions from both parties.

5. The hearing scheduled for July 27 and 28, 2016 will proceed as scheduled and will not be adjourned.