Selvyn Wilson v. The Regional Municipality of York, 2009 HRTO 2159

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Selvyn Wilson Applicant

-and-

The Regional Municipality of York Respondent

-and-

Canadian Union of Public Employees, Local 905 Intervenor

DECISION

Adjudicator: Faisal Bhabha Date: December 11, 2009 Citation: 2009 HRTO 2159 Indexed as: Wilson v. York (Regional Municipality)

APPEARANCES BY

Selvyn Wilson, Applicant ) On His Own Behalf and ) Masoud Tchavoshi, Representative

The Regional Municipality of York, ) Stephen Maio, Counsel Respondent )

Canadian Union of Public Employees, ) Risa Pancer, Counsel Local 905, Intervenor )

1This is an Application filed on February 6, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The Application alleges discrimination in employment on the basis of disability. The hearing took place on December 1, 2009. This Decision deals with a request by the respondent for dismissal for failure to disclose a prima facie case, absence of particulars of the alleged discrimination and lack of evidence.

BACKGROUND

2The applicant worked for the respondent as a Health Care Aide-Casual from April 17, 2007 until he was terminated for cause on February 11, 2008. The applicant was a member of the Canadian Union of Public Employees, Local 905 ("CUPE"). His duties included providing care, support, assistance and supervision to residents of a not-for-profit facility funded by the Ministry of Health and Long Term Care and the Regional Municipality of York (the "Region"), and operated exclusively by the Region.

3In a previous Interim Decision, dated November 25, 2009, 2009 HRTO 2020, I denied a request by the applicant to adjourn the hearing date scheduled for December 1, 2009 and ordered the applicant to comply with his Rule 16 and 17 disclosure obligations immediately.

REQUEST TO ADJOURN

4At the outset of the hearing, Masoud Tchavoshi, a licensed paralegal and agent for the applicant's former counsel, S. Sean Hagler, renewed the applicant's request for an adjournment on the basis of more fulsome information. Mr. Tchavoshi indicated that while Mr. Hagler is no longer representing the applicant, he sought to make submissions on the applicant's behalf only on the issue of the adjournment.

5Both the respondent and intervenor argued Mr. Tchavoshi had no standing to represent the applicant given the fact that Mr. Hagler is no longer representing the applicant, but in the interest of time they consented to Mr. Tchavoshi making limited submissions.

6I agreed to allow the applicant an opportunity to provide additional or fresh information in support of his renewed request for an adjournment. Given the respondents' consent, I allowed Mr. Tchavoshi to argue on the applicant's behalf solely with respect to the issue of the adjournment.

7Mr. Tchavoshi made arguments related to the applicant's financial hardship, his challenges obtaining medical reports from his physicians, his desire to retain counsel anew, and the difficulty he had faced in locating desired witnesses and securing their cooperation. He alleged that all of these factors were beyond the applicant's control and therefore constituted "extraordinary circumstances" within the meaning of the Tribunal's jurisprudence. No evidence was submitted in support of these arguments.

8The respondent and the intervenor opposed the request, arguing that there were no new facts justifying a different result from the Interim Decision. They also argued that an adjournment would cause them further unnecessary delay and prejudice.

9I denied the applicant's request. The additional facts and submissions were not qualitatively different from those before me in considering the original adjournment request. I was not persuaded that the applicant's circumstances were extraordinary, or that refusing the adjournment would be inconsistent with established jurisprudence.

REQUEST TO DISMISS

10The applicant was not prepared to proceed with the hearing. He stated that he did not have any evidence to call and he did not take the stand himself. He stated that without the assistance of counsel or a representative, and without the granting of an adjournment, he was unable to proceed with the hearing on the merits.

11The respondent requested that the Application be dismissed without a hearing on the basis that, even assuming the facts set out in the Application to be true, it does not disclose a prima facie case of discrimination under the Code. Further, the respondent requested dismissal of the Application because the applicant failed to particularize his allegations or introduce any evidence in support of his allegations. The respondent disputed many key claims, including whether the applicant was in fact a person with a disability.

12In oral submissions opposing the dismissal of his Application, the applicant relied on similar submissions to his adjournment request. He indicated that he has been unable to obtain medical documentation detailing the nature of his alleged disability and supporting his claim that his disability necessitated workplace accommodation at the time in question. Further, the applicant stated that he had been unable to reach any of his witnesses to secure their commitment to give oral evidence in support of his case and to confirm their anticipated testimony. The applicant did not provide a persuasive explanation as to why the evidence has not yet been obtained, or a forecast of how or when it will be obtained. Furthermore, he did not explain why he or his counsel did not take steps to summons allegedly uncooperative witnesses.

13The applicant stated that his disability was a "suspicion" prior to the termination, but that he only obtained a "diagnosis" afterwards. The evidence he stated he anticipates obtaining from medical professionals will speak to his current health status and will comment, retrospectively, on the events giving rise to the termination. Any communication about disability-related needs prior to the termination (which the respondent outright denies) would therefore have been speculative and without contemporaneous medical support in any event. Meanwhile, there has been no compelling explanation for why the applicant is still, some 20 months after his allegedly discriminatory termination, unable to provide any medical documentation confirming that he was disabled at the time of the events giving rise to the Application.

14It is also relevant that the applicant was represented by counsel throughout these proceedings, at least until November 16, 2009, when Mr. Hagler advised the Tribunal that he is no longer representing the applicant. Counsel for the respondent noted in his submissions that Mr. Hagler was also involved in representing the applicant in other litigation arising out of the termination of his employment. It is reasonable to assume that relevant documentary evidence would have surfaced during those proceedings.

15In order for the Tribunal to adjudicate a complaint contained in an Application, an applicant must do more than simply file an application making allegations of a breach of the Code. The evidentiary burden rests on the applicant to persuade the Tribunal that his allegations are proved. This means that, in addition to alleging discrimination, the applicant must also furnish evidence to support those allegations.

16Filing an application engages the use of the Tribunal's administrative and adjudicative resources in the processing of the matter. Filing an application also results in the respondent having to invest resources and time to respond to the application and prepare for a hearing. For these reasons, it is necessary that parties treat the Tribunal's process seriously. It is reasonable for the Tribunal to expect applicants to demonstrate their commitment to their obligations under the process, and to hold them to those obligations.

17The applicant ought to have been prepared for his hearing. He had ample time and opportunity, as well as the expertise of counsel, to identify and obtain the necessary evidence to substantiate his allegations. I can only draw negative inferences from the fact that he appeared at the hearing with no evidence and unprepared to proceed with his case.

DECISION – NO EVIDENCE

18The applicant attended his hearing with no evidence and was unprepared to proceed. The hearing was scheduled because the applicant filed the Application. It was his day to establish the truth of his allegations. The nature of those allegations requires documentary evidence in order to be proved. Given the dispute about whether the applicant has a disability, the applicant knew that he must first establish he is a person with a disability. He must then establish that his disability required accommodation and that the respondent did not accommodate him up to the point of undue hardship and terminated his employment for discriminatory reasons. By failing to call any evidence, the applicant failed to advance his case and establish the underlying factual foundation for a finding of discrimination. Therefore, the Application cannot succeed and is accordingly dismissed for no evidence.