HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Félix Amazan
Applicant
-and-
Toronto Catholic District School Board, Norma Rios and Sylvie Talarico
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Amazan v. Toronto District Catholic School Board
1As the parties are aware, the hearing of this matter is scheduled to continue on October 18 and 19, 2017. This Interim Decision addresses the respondents’ request regarding the testimony of one of their witnesses.
The Request
2By letter dated October 5, 2017, counsel for the respondents advised that Jose Cayanan, one of the respondents’ expected witnesses, was no longer employed by the organizational respondent, effective August 28, 2017. Counsel reported that Mr. Cayanan has begun new employment outside of the province, but that he is available to testify by telephone between 9 a.m. and 10 a.m. on October 18, 2017. Counsel reported that Mr. Cayanan is unwilling to ask for time off from his new employment and that there is a significant time zone difference between his new location and Ontario, both of which limit his availability to testify. Counsel therefore requested that the hearing on October 18, 2017 commence at 9 a.m. and that the Tribunal permit Mr. Cayanan to testify by telephone. Counsel filed a Statement of Delivery indicating that she delivered the letter to the applicant and the intervenor by e-mail.
3By letter dated October 5, 2017, the intervenor indicated that it consented to the respondents’ requests.
4The applicant responded to the respondents’ request by e-mail on October 11, 2017. The applicant submitted that he did not receive a request from the respondents to allow Mr. Cayanan to testify by telephone, but that the request came from the Tribunal. The applicant submitted that he had not received any updated medical information about Mr. Cayanan and that the Tribunal had failed to set a deadline on the respondents and intervenor to provide such information. The applicant submitted that he cannot respond to the request because he has not been provided with information about Mr. Cayanan’s illness.
Analysis and Decision
5I reiterate that the request regarding Mr. Cayanan’s testimony came from the respondents. On the face of the Statement of Delivery filed by respondents’ counsel, the request was delivered to the applicant using the same e-mail address that he employed to make his submissions on the issue. In light of the rapidly upcoming hearing dates, the Tribunal asked the applicant to respond to the request in an expedited manner, which it is entitled to do pursuant to Rule 1.7(a) of the Tribunal’s Rules of Procedure.
6The applicant is correct that no further medical information regarding Mr. Cayanan has been provided. However, the reason for the request to allow Mr. Cayanan to testify by telephone is that he no longer lives in the Province in Ontario, not medical reasons. It seems clear, in my view, that Mr. Cayanan is no longer asserting that he is unable to testify because of a medical condition. Accordingly, whether Mr. Cayanan has provided further medical information is in my opinion not a relevant consideration.
7The general expectation is that witnesses in proceedings before the Tribunal will testify in person. However, the Tribunal may permit witnesses to testify by telephone where the nature and extent of their testimony makes this arrangement fair, just and expeditious: Pinkney v. Datex Billing Services, 2009 HRTO 1732 (“Pinkey”).
8This is consistent with the Tribunal’s power, pursuant to Rule 3.5 of the Tribunal’s Rules of Procedure, to “conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate.” The Tribunal’s power to conduct telephone hearings is also informed by s. 5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which 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.
9The 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 by telephone: Pinkney, supra. The applicant did not identify any prejudice to him if Mr. Cayanan testifies by telephone.
10As I have noted previously, Mr. Cayanan appears to be able to give direct evidence about a key event in these proceedings, i.e., the incident between the applicant and Norma Rios; therefore, it appears that his evidence will assist the Tribunal. Mr. Cayanan’s evidence is important, but it concerns a brief interaction between the applicant and Ms. Rios. Consequently, Mr. Cayanan’s evidence should be brief and therefore suitable for telephone evidence. Practically, allowing Mr. Cayanan to testify by telephone may be the only way to obtain his evidence.
11Given the limited extent of Mr. Cayanan’s evidence, it is my expectation that one hour shall be sufficient to complete his testimony, including cross-examination. The Tribunal shall consider recalling Mr. Cayanan at a later date if, after one hour, it appears that he can provide further relevant evidence. Pursuant to Rule 1.7(m) of the Tribunal’s Rules of Procedure, I will undertake the initial questioning of Mr. Cayanan. Counsel for the respondents shall then have an opportunity to ask any supplemental questions, followed by the applicant’s cross-examination and any re-examination.
Order
12The Tribunal orders as follows:
The hearing on October 18, 2017 shall commence at 9 a.m.;
Mr. Cayanan shall testify by telephone on October 18, 2017;
The Tribunal shall provide a conference call number that respondents’ counsel shall provide to Mr. Cayanan; and,
The examination of Mr. Cayanan shall be conducted as described in paragraph 11, above.
Dated at Toronto, this 13th day of October, 2017.
“Signed by”
Douglas Sanderson
Vice-chair