Ontario Labour Relations Board
File No.: 3404-99-ES, Employment Practices Branch File No. 40010158 Date: December 18, 2000
Between: Derrick Woodman, Applicant v. G.R.M. Contracting Ltd., Betty Ross, B. James Lange, Employment Standards Officer and Ministry of Labour, Responding Parties.
Before: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD
1The Board, by decision in this matter dated December 7, 2000 permitted the other parties to this proceeding to make submissions with respect to the applicant’s request that the Board convene an electronic hearing. The Board was also advised by the Registrar that there are telephone conference call facilities available which would allow the Vice-Chair presiding at the hearing and the parties to hear one another and the witnesses throughout the hearing, thus meeting the minimum standard prescribed by section 5.2(4) of the Statutory Powers Procedure Act, R. S. O. 1990, c. S. 22 if the Board were to exercise its discretion under Rule 53 of the Board’s Rules of Procedure to hold an electronic hearing in this matter.
2The responding parties, other than the Ministry of Labour and the Employment Standards Officer, objected to the Board conducting an electronic hearing. They wish to have the applicant present at the hearing.
3The Board described the applicant’s basis for seeking an electronic hearing at paragraph four of its December 7, 2000 decision which stated:
Counsel for the applicant seeks to have an electronic hearing on the grounds that the applicant has moved to Ottawa and is employed there. Counsel submits that imposing the burden of travelling to Toronto for the hearing in order that he attend the hearing in person would create an extreme hardship for him. In addition, counsel submits that this time of year is a very busy time for the applicant, who works evenings, so that an electronic hearing during the day would enable the applicant, in the words of his counsel, “to secure his current employment”.
It seems to me that the essence of the basis for the applicant’s request for an electronic hearing is that it is not convenient for the applicant, who has moved to Ottawa, to return to Toronto to attend the hearing.
4The Board prefers to hear and see witnesses giving their evidence when there are factual matters in dispute. Receiving the testimony of a witness in a hearing being conducted by telephone conference call does not permit the Board or the parties to be satisfied that the witness is not reviewing notes or is not being coached by someone who is present but does not say anything audible to everyone else participating in the conference call. Also, the ability to conduct an effective cross-examination would, in my view, be significantly impaired if it were done over the telephone. The Board does not receive affidavit evidence to prove facts in dispute in litigation before the Board because it is important for the Board to be able to assess credibility and observe the demeanour of witnesses in order for it to come to a proper decision.
5In my view, conducting an electronic hearing where oral testimony is to be adduced should only take place in extraordinary circumstances and where the Board can be assured that the witness giving evidence in another location is not being assisted, whether by another person who is present but cannot be seen or heard, or by having notes or other forms of an aide-mémoire to which the witness might refer. Furthermore, a party adverse in interest to the witness must have the ability to put documents or other exhibits to the witness in cross-examination during the course of a hearing. Conducting a hearing merely by telephone conference call does not allow that to take place. See, for example, the decision of the Adjudicator/Referee in Filet of Sole Sea Grill Limited, unreported, decision dated December 1, 2000, Board File No. 2365-96-ES (Trachuk) in which she wrote at paragraph 2:
The Adjudicator/Referee will not permit evidence to be presented by way of a telephone call. A witness must be present in the hearing room where she may be observed giving her testimony, where she may present any relevant documents and where she may be cross-examined in person.
Although being able to hear a witness is the minimum standard under section 5.2(4) of the Statutory Powers Procedure Act, I believe that it is not advisable for the Board to conduct an electronic hearing in which a witness is required to testify unless the Board can be assured that the witness is not being assisted while giving evidence and there is a facility for the witness and the parties in their various locations to receive and review documents and exhibits that may be tendered during the course of the hearing.
6In this case, the application relates to a claim that the applicant was an employee of one of either Betty Ross or G.R.M. Contracting Ltd. The Employment Standards Officer concluded that there was no employment relationship with the applicant. The resolution of this type of issue is often very fact specific and there may well be disagreement over the facts. Indeed, I note that the applicant, by his counsel, filed four pages of detailed submissions dated February 20, 2000 with his application, outlining the factual basis of the claim. Thus, it seems that this application will turn on my findings of fact concerning the relationship between the applicant and Betty Ross or G.R.M. Contracting Ltd. Although I have the discretion under Rule 53 of the Board’s Rules of Procedure to conduct an electronic hearing, I do not consider it advisable to do so in this case where the result of the application will depend, to a significant degree, on my findings of fact after hearing evidence that is likely to be in dispute.
7The motion by the applicant for an electronic hearing is dismissed. This matter will proceed before this panel of the Board on December 20, 2000 at the time and place set out in the notice of hearing issued by the Registrar dated October 11, 2000.
“Harry Freedman”
for the Board