Jacqueline Hamilton-Clark v. Sunnybrook Hospital, Marie Newcombe, Sheila Robson, Carolyn Ring and Christine Ader, 2009 HRTO 470

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jacqueline Hamilton-Clark

Applicant

-and-

Sunnybrook Hospital, Marie Newcombe, Sheila Robson, Carolyn Ring and Christine Ader

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: April 21, 2009

Citation: 2009 HRTO 470

Indexed as: Hamilton-Clark v. Sunnybrook Hospital

1The applicant filed an Application with the Tribunal on March 17, 2009, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the ground of disability and reprisal for asserting her rights under the Code. The main issue is alleged refusal to accommodate or inadequate accommodation of the applicant’s inability to wear a mask when dealing with infectious patients in her work in the hospital.

2The applicant asks that the Application be expedited pursuant to Rule 21 of the Tribunal’s Rules of Procedure for applications under Part IV of the Code. In support of her Request to Expedite, the applicant alleged that the respondents had threatened to terminate her employment as of March 30, 2009 if she did not commence “cognitive behaviour therapy” by that date. The applicant also states that she is suffering from nightmares, anxiety, depression and panic attacks, and feeling harassed. She also asserts that all hospital-requested appointments are being deducted from her vacation bank, and that she worries that she will not have the vacation time she needs for her health.

3In its Response to the Request to Expedite, filed on April 5, 2009, the respondents deny that they had threatened to terminate the applicant’s employment as of March 30, 2009, and state that the applicant’s employment has not been terminated. The respondents assert that the applicant’s medical documentation contained a recommendation that the applicant undergo cognitive behavioural therapy, that the applicant did not follow this recommendation, preferring an alternative course of treatment. The respondents state that, if the applicant’s claustrophobia cannot be controlled by her preferred treatment, they will have to make further decisions but at present, they continue to accommodate the applicant by having another Radiation Therapist deal with infectious patients.

4In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, the Tribunal outlined the process of a proceeding before this Tribunal:

The Tribunal is committed to the fair, just and expeditious resolution of the merits of human rights applications, and its process is designed for timely resolution of all such disputes. A respondent must file a complete response within 35 days after a copy of the application was delivered to the respondent (Rule 8), and a reply may be filed within 14 days of when the response was sent to the applicant (Rule 9). With the agreement of the parties and the Tribunal, mediation will be scheduled shortly afterwards. If no mediation takes place or following an unsuccessful mediation, the Tribunal will send a confirmation of hearing to the parties, which triggers an obligation to disclose all arguably relevant documents within 21 days (Rule 16.1). A hearing will follow. The Tribunal expects most hearings to be completed within one year of an application being filed.

5The respondent’s Response to the Application is due on or before May 6, 2009. Both applicant and respondent have indicated their willingness to engage in mediation.

6Since Rule 21 does not provide for any specific changes to the Tribunal’s process if a request to expedite is granted, the Tribunal determines on a case-by-case basis what changes might be necessary to its processes in a particular expedited proceeding. Changes may include abridgement of Response, Reply, and disclosure timelines, setting early hearing dates, and, where the parties consent to mediate, scheduling rapid mediation dates. The Tribunal may also exercise its powers under the Code and Rule 1.7 to direct the hearing process to ensure a particularly expeditious decision.

7In these circumstances, I do not find that the facts are so urgent as to support giving this Application priority for Tribunal resources over other applications.

8The Tribunal will schedule a mediation in accordance with its usual practices.

9All time requirements under the Rules remain in effect, including the requirement for the respondent to deliver and file the Response to Application by May 6, 2009.

10I am not seized of this matter.