Hallett v. Ontario Health and Long-Term Care, 2009 HRTO 681

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kristen Hallett

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Health and Long-Term Care, Karen Stanley and Derrick Legere

Respondents

INTERIM decision

Adjudicator: Mark Hart

Date: May 26, 2009

Citation: 2009 HRTO 681

Indexed as: Hallett v. Ontario Health and Long-Term Care

wRITTEN SUBMISSIONS BY

Kristen Hallett, Applicant ) Chris Foulon, Counsel

Her Majesty the Queen in Right of Ontario ) as Represented by the Minister of Health ) Sari Teitelbaum, Counsel and Long-Term Care, Karen Stanley ) and Derrick Legere, Respondents )

1This is an Application dated August 28, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), alleging discrimination in employment and contract on the basis of disability.

2The purpose of this Interim Decision is to consider the respondents' request for deferral of the Application pending the conclusion of a civil action commenced by the applicant against other parties.

3In my previous decision in this and two related Applications dated April 6, 2009 (Hallett v. Grey Bruce Health Services, 2009 HRTO 403), I dismissed the two related Applications but allowed this Application to proceed. I also asked the parties to advise the Tribunal within 10 days of the date of that decision whether they were interested in participating in mediation, failing which dates would be set for disclosure and the filing of materials in preparation for the Case Resolution Conference on the merits in this matter. I further asked the applicant to advise whether she was prepared to withdraw the Application as against the personal respondents, and the applicant advised that she was withdrawing the Application as against George Smitherman.

4As noted in my previous decision, there is an outstanding civil action being pursued by the applicant against Grey Bruce Health Services and four physicians (the "Civil Action"). The respondents submit that the foundational issues in the human rights complaint against them are whether the physicians who belonged to the same practice group (the "Group Physicians") as the applicant discriminated against her and whether they failed to accommodate her, and these are also central issues in the Civil Action. The respondents request that the human rights hearing be scheduled following judgment in the civil action in order to avoid duplication of litigation on these issues.

5The applicant agrees that it would be appropriate to defer the actual hearing of this Application until the trial in the Civil Action has been completed. However, the applicant takes the position that the entire Application process need not come to a halt as a result, and that the parties should still proceed with mediation and disclosure of documents, so that the Application is "hearing ready" once the trial in the Civil Action is over.

6The respondents submit that disclosure should take place 45 days in advance of the hearing of the Application, which the respondents believe is provided for in the Tribunal's Rules. This is not correct. As a result of the transition from the old human rights system to the new system, the Tribunal currently has three different sets of Rules that apply to different kinds of proceedings. This is an Application filed under s. 53(3) of the Code, and Part II of the Tribunal's Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Human Rights Code (the "Transitional Rules") applies. Pursuant to this Part, the applicant is to make disclosure of all arguably relevant documents no later than 30 days after the mediation conference and the respondents are to make disclosure no later than 45 days after the mediation conference (Rule 9.3). Where one or more of the parties has declined to participate in mediation, the Tribunal generally has calculated the dates for disclosure from the time that mediation is declined or from the time the Tribunal issues a letter or decision to the parties advising them of their disclosure obligations.

7This does not mean that, in the specific circumstances of this case, it is appropriate to require disclosure prior to the conclusion of the Civil Action. In my view, there may be rulings or decisions made in the context of the Civil Action that could impact upon the arguable relevance of documents that are required to be disclosed under the Tribunal's Rules or some other development in the Civil Action may impact upon the parties' disclosure obligations. In addition, the hearing of applications under Section 53(3) of the Code can proceed very expeditiously, such that a hearing of this Application could be held within mere months of the conclusion of the Civil Action, even allowing time for disclosure under Rule 9.3 and the filing of pre-hearing materials with the Tribunal under Rules 9.1, 9.2 and 9.5. As a result, I have given little weight to the applicant's concern that the Application be "hearing ready" by the time the Civil Action is concluded.

8With regard to mediation, I note that the respondents have expressed that they are not willing to participate in mediation until after the conclusion of the Civil Action. Mediation is a voluntary process, and the Tribunal cannot compel a party to participate in mediation if they choose not to.

9As a result, this Application, including mediation and any other pre-hearing steps, shall be deferred pending the conclusion of the Civil Action. If the applicant intends to proceed with this Application following the conclusion of the Civil Action, the applicant is directed to contact the Registrar – Transition no later than 60 days after the conclusion of the Civil Action to make a request to proceed with this Application, and shall indicate the date the Civil Action concluded and include a copy of any decisions or orders in the Civil Action.

10Finally, for the purpose of this Application, the parties have agreed to be bound by the findings of fact made in the Civil Action on the issues of whether the Group Physicians discriminated against the applicant on the ground of disability, whether they failed to accommodate her disability, and their defence of undue hardship, if any.

ORDER

11For all of the foregoing reasons, I make the following order:

1. The respondents' request for deferral of this Application, including mediation and any other pre-hearing steps, is granted; and
2. If the applicant intends to proceed with this Application following the conclusion of the Civil Action, the applicant is directed to contact the Registrar – Transition no later than 60 days after the conclusion of the Civil Action to make a request to proceed with this Application, and shall indicate the date the Civil Action concluded and include a copy of any decisions or orders in the Civil Action.