A recent decision of the BC Human Rights Tribunal emphasizes the high threshold an applicant must meet in order to have a witness give evidence by way of video or telephone. The decision arose out of a complaint alleging discrimination in employment on the ground of sex, contrary to the Human Rights Code. Prior to the hearing, the respondent applied to have a witness give evidence by way of video or telephone. The Tribunal has discretion under section 27 of the Codeto hear evidence in this manner.
In deciding whether to exercise that discretion, the Tribunal must weigh the prejudice to the witness in attending in person against any prejudice to the complainant. The Tribunal found the three factors affecting this analysis were: (1) the reason the party is bringing the application, (2) the importance to both parties and the Tribunal of being able to test and assess the credibility of a witness, and (3) whether the decision will impact on the integrity of human rights processes.
The respondent’s reasons for making the application were that the witness lived in Winnipeg and was attending graduate studies there. However, the Tribunal noted that the respondent had not argued that the expense of having the witness fly to Vancouver would be prohibitive or that the witness would suffer from a disruption of her studies. There was no evidence before the Tribunal that a dismissal of the application would result in the witness not attending the hearing. The complainant on the other hand, argued that the integrity of the Tribunal’s processes would be compromised by allowing the application because the complainant would not have a full opportunity to cross examine the witness and assess credibility.
In denying the application, the Tribunal agreed with the complainant that credibility would be a significant issue and that the complainant could be prejudiced by not being able to cross-examine the witness in person. Finally, the Tribunal noted the practical difficulties with having the witness attend and give evidence remotely. The Tribunal does not have the capacity for videoconferencing and it was not clear what affect an order allowing a videoconference could have on an exclusion of witness order. The Tribunal concluded that allowing the witness to testify by telephone or video would impair its ability to conduct the hearing in a procedurally fair and efficient manner, and dismissed the respondent’s application.
If you have any questions concerning the information presented in this article, please contact Lindsie M. Thomson, Partner.