Cymbalisty v. Wal-Mart Canada, 2009 HRTO 454

Human Rights Tribunal of Ontario

B E T W E E N:

Glenn Cymbalisty Applicant

-and-

Wal-Mart Canada Corporation Respondent

INTERIM DECISION

Adjudicator: Alan Whyte Date: April 16, 2009 Citation: 2009 HRTO 454 Indexed as: Cymbalisty v. Wal-Mart Canada

1This Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), was filed on September 3, 2008. The application alleges discrimination in employment on the basis of disability.

2This Interim Decision will address the applicant’s Request for an Order during Proceedings and the applicant’s Request to Expedite Proceedings, both dated March 20, 2009.

Background

3The applicant alleges that the termination of his employment on April 29, 2008 was based on his medical disability which had existed for a number of months as of that time. The applicant was diagnosed with cancer in February 2008 and thereafter underwent extensive medical treatment. He was only able to work off and on up to April 14, 2008 when he returned to work. Two weeks later, his employment was terminated.

4The applicant‘s benefits were also terminated effective April 29, 2008. At that time, the applicant was receiving significant medical treatment and experiencing significant medical expenses as a result. Since his termination, he has continued to receive extensive medical treatment and incur medical expenses for the treatment of his cancer. The applicant has filed medical evidence from his oncologist dated February 9, 2009 which confirms that he is currently on active treatment and will remain so indefinitely until the treatment is no longer effective, at which time he will become palliative.

5The Request to Expedite Proceedings emphasizes that the applicant has been forced to move to Winnipeg, Manitoba in order to receive medical treatment, from his former location in Fort Frances, Ontario. It alleges that the respondent terminated all of his benefits as of the date of termination, except for a brief period of time in May or June 2008. It points out that the respondent did not file its Response to this Application within the time limit contained in the Tribunal's Rules, and that it was not until the Tribunal issued an Interim Decision dated November 10, 2008 that the Response was filed. It notes that the Tribunal issued a further Interim Decision on December 2, 2008 directing the scheduling of mediation in this matter on an expedited basis. It alleges that due to the respondent's cancellation of the applicant’s benefits, he is unable to afford certain therapies which could be of assistance to him in dealing with his cancer, and that delay in bringing the case to hearing on a timely basis could literally be fatal. The applicant submits that if the hearing is not expedited, he may not be able to participate in or testify at the hearing, and in fact, may not survive until the hearing date. The applicant states that his prognosis is dire.

6The Request for an Order during Proceedings seeks a variety of relief including the following orders:

• amending the relief claimed in the Application;
• for production of records relating to the termination of employment of the applicant and the termination of the applicant’s benefits by the respondent;
• requiring the respondent and its insurer Manulife to produce all documents relevant to the cancellation of the applicant’s benefits;
• an order directing that the manager of the Wal-Mart location in Fort Frances attend before the Tribunal or an official examiner to provide evidence before the commencement of the hearing;
• that the applicant be allowed to attend (at the applicant’s option) before an official examiner to testify in advance of the hearing;
• for an examination of any other relevant records;
• that the Request for an Order during Proceedings be dealt with on an urgent basis;
• that the Request for an Order during Proceedings be heard together with the Request to Expedite Proceedings.

7The respondent has not filed a Response to either the Request to Expedite Proceedings or the Request for an Order during Proceedings and the time limits provided in the Tribunal's Rules for doing so have passed.

Decision

8In the circumstances, the Tribunal will deal with both Requests together and will decide the Request to Expedite Proceedings at this stage.

9A Request to Expedite Proceedings must describe 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. Further, in Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at paragraph 9, the Tribunal held as follows:

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.

10The Tribunal’s Rule 21.2 provides as follows;

A Request to Expedite an Application under Rule 21.1 must describe:

a) any urgent circumstances that may affect the fair and just resolution of the merits of the application;

b) the harm that would result if the request is denied; and

c) whether the other parties consent to the request.

11In my view, the applicant has put forward sufficient facts to meet the burden of showing that the circumstances of his case are truly urgent. It is clear that the applicant is undergoing serious medical treatment for his cancer condition, and will continue to do so for the foreseeable future. The applicant's prognosis is very poor and if the matter is not expedited, it is foreseeable that he may not be able to attend at the hearing for health reasons, or alternatively, may not survive until the hearing.

12The Tribunal therefore allows the Request to Expedite Proceedings and will schedule a teleconference on an expedited basis, to deal with the remaining forms of relief sought by the applicant in his Request for an Order during Proceedings. At the teleconference, the various forms of relief sought by the applicant will be considered and further directions regarding the processing of this Application may be given. The respondent is ordered to file its Response to the Request for an Order during Proceedings (Form 15) by no later than April 21, 2009.

13The Registrar is asked to schedule a teleconference as soon as possible after April 21, 2009.

14I am not seized of this matter.