Zaki v. Ontario (Community and Social Services), 2009 HRTO 2186

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ali Zaki

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services and Alodia Scott

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: December 16, 2009

Citation: 2009 HRTO 2186

Indexed as: Zaki v. Ontario (Community and Social Services)

APPEARANCES

Ali Zaki, Applicant ) No one appearing

Her Majesty the Queen in Right of Ontario ) as represented by the Ministry of Community ) Geoffrey Baker, Counsel and Social Services and Alodia Scott, Respondents )

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The hearing was scheduled for December 15, 2009. The applicant did not attend, although the respondents did.

2In this Interim Decision, I direct: (1) that the applicant provide medical documentation to substantiate his inability to attend the hearing and give the parties the opportunity to make submissions on whether the application should be dismissed as a result of the applicant’s failure to attend; and (2) direct that the applicant clarify his allegations and why he alleges that they fall within the Tribunal’s jurisdiction (power) to decide.

BACKGROUND

3The Application was filed on January 27, 2009, alleging discrimination through the termination of certain benefits under the Ontario Disability Support Program. Following a mediation that did not result in a settlement, the hearing was scheduled, by letter dated August 27, 2009, for December 15 and 16, 2009. On October 2, 2009, the Tribunal issued an Interim Decision dismissing the Application against two respondents: the Social Benefits Tribunal and one of its adjudicators: 2009 HRTO 1595. The Interim Decision also cancelled the second day of hearing.

4The Interim Decision noted (at para. 20) that the applicant’s allegations are primarily a challenge to the substance of the Ministry’s decision, and relate to whether the termination of his benefits was justified by the regulations under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, sched. B. The Interim Decision stated that to succeed in the Application at the Tribunal, the applicant would have to prove that termination of the ODSP benefit was discrimination within the meaning of the Code. It stated (at para. 21) that the applicant should be prepared to explain how he would prove that the termination of the benefit was a violation of the Code.

5Under Rules 16 and 17 of the Tribunal’s Rules, the parties must deliver and file copies of witness statements and documents they intend to rely upon no later than 45 days prior to the hearing. The applicant did not do so.

6The Tribunal wrote to Mr. Zaki by e-mail on December 4, 2009 as follows:

I am contacting you in advance of the hearing in this matter scheduled for December 15, 2009, 9:30 a.m. at 655 Bay Street, 14^th Floor, Toronto to ensure you are aware of the Tribunal’s Policy on Accessibility and Accommodation (…). Should you have any need for Code-related accommodation in order to be able to participate in this hearing, please advise me or the Tribunal’s Registrar (HRTO.Registrar@ontario.ca) in writing as soon as possible.

Please be aware that unless a request for accommodation or to participate in the hearing by telephone or in writing has been made in advance, parties are expected to attend the hearing in person. Where there has been no such request and an applicant does not attend the hearing the Tribunal may dismiss the application as abandoned.

7Counsel for the respondents wrote to the Tribunal by e-mail on December 8, 2009 as follows:

I now have carriage of this application for the corporate respondent... It is set for a hearing on December 15, 2009. We have not heard from the applicant since October 2009 when Vice-chair Wright issued his interim decision narrowing the scope of the application. The applicant has not provided a witness list or disclosed documents, for example, in accordance with the rules (we attached our relevant documents to our response). And our local ODSP office has not had any response from Mr. Zaki in respect of two letters attempting to schedule file review appointments with him for matters not related to the application.

Would it be possible and appropriate for you to try and contact Mr. Zaki to confirm whether he intends to proceed with his application on December 15^th? I would appreciate an update on the status of the hearing.

8On December 12, 2009, the Registrar wrote to the parties by e-mail and regular mail, as follows, and included respondents’ counsel’s e-mail of December 8:

The Tribunal has received the e-mail below from counsel for the respondent. In the circumstances, the applicant is requested to confirm whether he intends to proceed with his Application at the hearing on December 15, 2009.

9No response to any of this correspondence was received until December 14, 2009, at 4:28 p.m., when the applicant sent an e-mail to the Tribunal that was not copied to the respondents and reads as follows:

We have received today a paper copy of your email letter dated December 9, 2009, which copies an email from Mr. Baker (there is no date corresponding with Mr. Baker’s email).

For the purposes of Mr. Zaki’s Human Rights complaint, we wish it to be known that although Mr. Baker refers to “two letters attempting to schedule file review appointments” with Mr. Zaki, no such letters were received by Mr. Zaki.

This is another example of misdirection performed by the respondents.

Also today, we received a letter from Mr. Tedesco, indicating that Mr. Zaki’s ODSP benefits have been terminated, presumably because Mr. Zaki has not been reviewed as described by the letters to which Mr. Baker referred.

Again, Mr. Zaki has not received the letters described by Mr. Baker.

In other words, today the respondents have informed Mr. Zaki that they (the respondents) have abruptly and unjustifiably terminated Mr. Zaki’s ODSP benefits. And this was precisely timed to coincide with Mr. Zaki’s scheduled Human Rights hearing tomorrow.

Further, the respondents are aware that Mr. Zaki’s disabilities are primarily psychiatric in nature, and that such carefully-timed stressors would harm Mr. Zaki’s ability to explain his position at the hearing.

Incidentally, Mr. Tedesco’s letter stipulates that Mr. Zaki “will not receive drug, dental, or other benefits.” And as could be understood by reasonable people, Mr. Zaki needs his psychiatric medicines, and depriving him of such would further interfere with Mr. Zaki’s ability to participate in the hearing.

We want this information to form part of Mr. Zaki’s Human Rights complaint.

The respondents are harassing Mr. Zaki in reprisal for making a Human Rights complaint, and they are interfering with Mr. Zaki’s ability to participate in the hearing.

For the time being, the respondents will get what they are seeking. Mr. Zaki’s disabilities have worsened from the unneeded stress that has been applied by the respondents, and he is currently extremely ill. Therefore, Mr. Zaki will not be able to attend the hearing tomorrow.

However, we want the hearing to be rescheduled, and we want the facts provided here to form part of the complaint.

This letter has been prepared on behalf of Mr. Ali Zaki and is endorsed by him.

Signed by

Ali Zaki

NEXT STEPS

1) Failure to Attend

10Generally, when an applicant does not attend a hearing that has not been adjourned, the Application will be dismissed as abandoned. However, in the circumstances, and after hearing submissions from counsel for the respondents, I determined that the applicant should have an opportunity to provide medical documentation to substantiate his inability to attend and the last-minute notification of his illness. Both are important to a decision on whether the Application should be dismissed at this stage. Accordingly, if the applicant wishes to pursue this Application he shall, by January 4, 2010, write to the Tribunal, with a copy to counsel for the respondents, and provide a letter from a registered medical practitioner that advises:

(a) Was the applicant medically able to participate in a Human Rights Tribunal of Ontario hearing on December 15, 2009?

(b) If the applicant was unable to participate in the December 15 hearing, when did such inability arise and, specifically, did it arise prior to December 14, 2009?

(c) Are there accommodations that would facilitate the applicant’s participation in the Tribunal’s proceedings?

(d) When is it expected that the applicant will be medically able to participate in the Tribunal’s proceedings?

If the applicant does not comply with this direction, the Application shall be dismissed as abandoned.

11If, after receipt of the medical letter, the respondents ask that the Application be dismissed as a result of the applicant’s non-attendance, they shall provide submissions in support of this request by January 11, 2010. The applicant may reply by January 18, 2010. The Tribunal will then consider, on the basis of the written submissions, whether the Application should be dismissed.

2) Whether the Application Alleges A Violation of the Code

12Counsel for the respondents also asked that the applicant be directed to clarify, in writing, exactly how he alleges that the respondents discriminated against him under the Code on the grounds alleged and the evidence he will use to prove this. As noted in the previous Interim Decision, the Tribunal has no power to decide whether the Ministry’s decision or interpretation of its regulations was the correct decision. It can only decide if there was discrimination on a prohibited ground in the Code in the denial of the benefit.

13I agree that such a written clarification is appropriate if the Application proceeds. Accordingly, the applicant must provide written submissions that explain why he alleges that the Ministry and the personal respondent Ms. Scott violated his rights under the Code and what evidence he will use to prove this. He shall explain, specifically, why he says that these allegations fall within the Tribunal’s powers (jurisdiction) under the Code. He shall do so by January 25, 2010.

14By February 8, 2010, the respondents may respond, in writing, and make submissions about whether the allegations fall within the jurisdiction of the Tribunal. The applicant may reply by February 15, 2010.

15Should the medical information provided by the applicant suggest a need for modification of the deadlines or the manner of providing this information the Tribunal will amend this direction at that time.

16Following receipt of the parties’ submissions on these issues, the Tribunal may decide the issue of whether the allegations fall within the Tribunal’s jurisdiction based upon the written submissions, or may order a conference call or a further hearing date.