HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Francine Kerdman

Applicant

-and-

The College of Family Physicians of Canada and Bernard Marlow

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: July 15, 2009

Citation: 2009 HRTO 1049

Indexed as: Kerdman v. College of Family Physicians of Canada

1This Interim Decision addresses a Request by the applicant to expedite the hearing of this matter pursuant to Rule 21 of the Tribunal’s Rules of Procedure for applications under Part IV of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”).

2The applicant filed an application with the Tribunal on September 9, 2008, alleging discrimination on the basis of disability in employment and reprisal contrary to the Code. The applicant states that she has various medical conditions which are outlined in her Application. Among other things, the applicant alleges that during her employment, she was denied necessary accommodations and that she was eventually terminated because the respondents resented the accommodations she sought.

3At the time the Application was filed, there was no Request to expedite. The Application was processed in accordance with the Tribunal’s usual procedures. A mediation was scheduled for January 9, 2009.

4The original date for mediation was adjourned on consent of the parties, as was a subsequent mediation date that had been scheduled on consent for March 23, 2009. At the time the second date was cancelled, the respondent clarified that it had requested the cancellation for personal reasons, the applicant did not oppose and the parties would canvass new dates shortly and contact the Tribunal to schedule a new date. By letter dated March 23, 2009, the applicant stated that while she was willing to seek other dates for mediation, she requested a hearing date be set so that no further delay be occasioned by the adjournment of the mediation dates.

5On June 16, 2009, the applicant wrote the Tribunal, stating that that the parties had been unable to find a mutually agreeable date for mediation and requested again that a hearing date be set.

6On June 25, 2009, the applicant filed the Request to Expedite. In support of her request, the applicant states that she has exhausted employment insurance benefits and her sources of income are limited to Ontario Works benefits and six weeks of sickness employment insurance benefits. She states that she remains unable to pay rent at her current address and her income has become so strained that her landlord has commenced eviction proceedings (an initial date for hearing of June 19, 2009, was adjourned and a replacement date is pending). The applicant states that she has no family support that she can rely on to obtain income or housing.

7With respect to the state of her health, the applicant states that she has several continuing medical conditions that necessitate accommodation both at work and in her daily personal life. She has set out what those medical conditions are and has provided detailed information indicating that they make her vulnerable to stress, causing significant pain and fatigue. As a result of her medical conditions, the applicant states that she experiences significant hardship in locating subsidized housing that is suitable to her and can accommodate her personal/medical needs. The applicant specifically references that she has made inquiries at two shelters, but since they only provide shared accommodation, she would be exposed to other individuals who may have illnesses particularly harmful to her since she has a weakened immune system and must take special care to avoid any infections. The applicant states that her physician has advised her that her health is too precarious to permit her to undertake a change in her residence at this time.

8The applicant also describes her efforts to mitigate by finding alternative work and the challenges she has faced in this regard.

9As a result of the foregoing, the applicant submits that a move from her current residence could cause her health to deteriorate significantly, which would in turn make any resolution of the matter unfair and unjust in that she would have suffered a decline in health through a loss of suitable housing that permits her to manage her health conditions – a loss that cannot be compensated through monetary damages.

10The respondent has not filed a response to the Request to Expedite.

DECISION

11The Tribunal’s Rules of Procedure provide for applications to be dealt with in an expedited manner in urgent circumstances. Rule 21.1 provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application and the harm that would result if the request is denied.

12In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9 the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

13Having regard to all of the circumstances, I grant the Request to expedite. The Application was filed on September 9, 2008, and, but for the adjourned mediation dates, would have moved through the Tribunal process to be closer to a resolution. It is apparent that since the Application was filed, the applicant’s personal circumstances have changed. I am satisfied that when considered together, the applicant’s continuing health issues, her need for accommodation in housing, the pending eviction proceedings and the possibility that a move will cause her health to deteriorate are circumstances that may affect the fair and just resolution of the merits of the Application.

14Further, while the respondent has not consented to the Request, it has not objected. Accordingly, there does not appear to be any issue of prejudice to the respondent.

15However, while I grant the Request to expedite, considering all the circumstances, I find it appropriate to schedule a conference call with the parties on an expedited basis to hear their submissions on the setting of early hearing dates; whether and in what way timelines should be abridged; and to canvass their interest in an expedited mediation.

[16] I order that the parties attend a telephone conference call on July 20, 2009, at 4:30 p.m. to address the issues set out in the preceding paragraph. If the parties wish to rely on any documents that have not already been exchanged and filed with the Tribunal, they must deliver them to one another, and file them with the Tribunal, no later than 5:00 p.m. on July 17, 2009.

[17] I am not seized of this matter.