Adam Kusinski v. Marvin Basar Pharmacy Ltd., 2017 HRTO 1277

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adam Kusinski

Applicant

-and-

Marvin Basar Pharmacy Ltd.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel
Date: September 27, 2017
Citation: 2017 HRTO 1277
Indexed as: Kusinski v. Marvin Basar Pharmacy Ltd.

WRITTEN SUBMISSIONS

Adam Kusinski, Applicant

Self-represented

1The purpose of this Interim Decision is to address the applicant’s request that the hearing of this Application proceed by teleconference.

2The applicant filed an Application alleging discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended. Specifically, he alleged discrimination by the respondent when he returned a product to the respondent’s store. The matter is scheduled to be heard on December 8, 2017.

3The applicant requested that the hearing of this matter be held by teleconference as an accommodation for him and his witness. The applicant stated that he is not capable of attending a hearing at the Tribunal’s hearing center because he suffers from a learning disability, social anxiety, claustrophobia and a fear of heights. He also stated that his witness has family obligations and Post Traumatic Stress Disorder and therefore cannot travel far. The applicant stated that, if the hearing is not held by teleconference he will not be able to continue with his Application.

4The respondent opposed the applicant’s request. It submitted that the applicant’s request is suspicious, unreasonable and would cause prejudice to the respondent. In particular, the respondent noted that the applicant did not attach any medical documentation in support of his request. In addition, the respondent argued that it would be prejudiced by not being able to cross-examine the applicant and his witness in person.

Finding

5I do not find it appropriate to grant the applicant’s request.

6The Tribunal’s Rules of Procedure are to be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of matters before it (Rule 1.1). Rule 3.5 of the Tribunal’s Rules provides that the Tribunal may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate. However, I note that s. 5.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, provides that a tribunal shall not hold an electronic hearing (including by telephone) if a party satisfies the tribunal that holding an electronic rather than an oral hearing (a hearing in-person) is likely to cause the party significant prejudice.

7The Tribunal has consistently required anyone who is making a request on medical grounds to submit medical documentation in support of their request. This medical documentation must set out in detail the nature of the person’s medical restrictions and the accommodations that would be required to meet these restrictions. The applicant has provided no medical documentation in support of his request and therefore his request cannot be granted.

8Even if the applicant had submitted appropriate medical documentation in support of his request, I find that a teleconference hearing is not appropriate in this case.

9The Tribunal has allowed witnesses to testify by telephone conference in certain circumstances, depending upon the nature and extent of their evidence. However, the Tribunal generally does 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. See Zeividavi v. Catholic Immigration Services, 2011 HRTO 406 at para. 15.

10The parties in this case have different versions of the events at the center of the Application. Therefore, I will need to make findings of fact as to what occurred when the applicant attended at the respondent’s store. This will require me to assess the credibility of witnesses who testify before me and, in this case, this will require me to observe the witnesses as they testify. Therefore this is not a case where it is appropriate for witnesses to testify by telephone.

11In certain circumstances, the Tribunal may permit witnesses to testify by video conference using a “Skype” type program that has a secure connection. However, this would require the applicant to submit appropriate medical evidence to support his assertion that his disabilities and his witness’ disability are of such a degree as to render them incapable of attending an in-person hearing at the Tribunal’s hearing center. The medical evidence must clearly and precisely set out the disability-related restrictions and accommodation needs of the applicant and any witness who is requesting permission to testify by videoconference. In addition, both the applicant and his witness would require access to a computer with a camera that would permit them to testify by videoconference.

Order

12For the reasons set out above, the applicant’s request to hold this hearing by teleconference is denied. If the applicant intends to request permission for the hearing to proceed by videoconference, he must do so with appropriate supporting documentation as soon as possible and no later than 21 days from the date of this Interim Decision. If he does make such a request, he must do so by Request for Order During Proceedings (Form 10) and copy it to the respondent who then will have 14 days in with to respond to his request.