Goromonzi v. St. Joseph Health Care Foundation, 2009 HRTO 692

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Auxilia Goromonzi

Applicant

-and-

St. Joseph Health Care Foundation

Respondent

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: May 26, 2009

Citation: 2009 HRTO 692

Indexed as: Goromonzi v. St. Joseph Health Care Foundation

1By correspondence dated May 20, 2009, the Tribunal advised the parties that the hearing scheduled for May 21, 2009 was cancelled. This Interim Decision provides the reasons for the cancellation of the hearing, and requires the applicant to indicate whether she wishes to proceed with the Application.

Background

2On April 22, 2009, the applicant filed an Application alleging discrimination in the provision of goods, services and facilities on the grounds of race, ancestry, place of origin, ethnic origin, and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant also filed a Request to Expedite the Application.

3The Application relates to an allegation that the respondent refused to permit the applicant, and her nine year old son, to attend a fundraising event organized by the respondent for persons living with HIV/AIDS, at which Archbishop Desmond Tutu was to be the keynote speaker. In the Application, the applicant sets out details of her longstanding efforts, on behalf of her son, to make contact with Archbishop Tutu, who she says is her son’s grandfather. The essence of the human rights claim, however, is the allegation the respondent decided to deny the applicant attendance at the event, at least in part because it perceived her more likely to be disruptive based on her race, colour, ethnic origin and place of origin. The basis for the Request to Expedite was that the fundraising event which the applicant wished to attend with her son was scheduled to take place on May 22, 2009.

4On April 29, 2009, the Tribunal issued a Case Assessment Direction seeking submissions from the respondent on the applicant’s Request to Expedite, and also directed the respondent to provide a substantive response to the allegations set out in the Application. The Tribunal provided the applicant an opportunity to file a Reply.

5The respondent filed its Response as directed by the Tribunal. It denied that it discriminated against the applicant. It stated that the applicant’s race, colour, ethnic origin or place of origin played no role in its decision to refuse attendance at the event to the applicant or her son. Rather, the respondent argued, the actions of the applicant in contacting event sponsors and garnering media attention for her cause to have her son meet Archbishop Tutu, would detract from the purpose and focus of the fundraising event.

6The respondent also raised a jurisdictional challenge. It argued that the Application did not set out sufficient facts which would bring the dispute within the scope of the Code.

7After considering the materials filed by the parties, and in view of the urgency asserted by the applicant, on May 15, 2009 the Tribunal issued a Interim Decision, 2009 HRTO 646, setting a hearing for May 21, 2009. The applicant lives in Calgary while the respondent is located in London. The Tribunal does not hold hearings outside Ontario. As the event was to take place in London, the hearing was scheduled to be heard there.

8Following that Interim Decision, at 8:03 pm on May 15, 2009, the applicant sent email correspondence requesting that the hearing be rescheduled to an earlier date and held by telephone. The applicant stated:

I live in Calgary and would need to fly my son and myself to London, Ontario for the hearing.

In the event that this matter cannot be resolved at the said hearing, I would have no room to appeal and would have spent money and effort travelling to London, Ontario for nothing.

9On May 19, 2009, the applicant sent further correspondence in which she proposed that the Tribunal decide the Application without a hearing, based only on the materials filed. The Tribunal requested the respondent’s position on the applicant’s request to hold the hearing by teleconference, or alternatively that the Tribunal decide the Application based only on the written materials before it.

10In addition, on May 19, 2009, the Tribunal issued a Case Assessment Direction providing procedural directions for the upcoming hearing. The Case Assessment Direction identified the factual and legal issues the parties would be required to address at the hearing, including the jurisdictional issue raised by the respondent. Also, in order to ensure the Tribunal would be able to decide the Application fairly and in a timely way, the parties were directed to provide a list of witnesses and a short summary of the anticipated evidence of each witness.

11Later on May 19, 2009, the applicant sent correspondence to the Tribunal raising concerns about the Case Assessment Direction, and claimed the Tribunal had not acceded to her request for a telephone hearing. She stated:

…I do not believe the Ontario HRT is treating my case seriously As such, I will not be wasting my time and effort with the rest of the proceedings.

It is up to the Tribunal to do what it wants to do.

12The respondent took the position that, in the circumstances, it was not appropriate to conduct the hearing by way of teleconference, or based on the written materials. It stated that the nature of the issues involved required an in person hearing with oral testimony.

Decision

13In view of the parties’ position, the Tribunal determined that it was appropriate to cancel the hearing.

14The Tribunal is an adjudicative body that hears and decides specific legal disputes – Applications alleging discrimination under the Code. It determines these Applications based on evidence and submissions presented at a public hearing.

15Section 43(2)1 of the Code provides that:

An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.

16There may be rare circumstances where, with the consent of the parties, the Tribunal will finally decide an Application that is within its jurisdiction, based only on written materials. In this case, although the respondent took the position that the claim did not fall within the scope of the Code, the Tribunal determined that it was not plain and obvious that the Tribunal was without jurisdiction to hear the Application, and as such, it was necessary to provide the parties the right to make oral submissions before finally determining the Application.

17There may also be circumstances where hearings are conducted electronically, by teleconference. However, the Tribunal must consider the parties’ rights and the nature of the case, and adopt a procedure which is fair, just and expeditious in the circumstances.

18This case turns in large part on factual determinations and credibility findings. Those determinations cannot be made without hearing oral evidence from witnesses. The respondent argues a telephone hearing was not appropriate, and would not allow a complete and fair adjudication of the issues in dispute. In the circumstances, I agree.

19The applicant however was not prepared to attend an in-person hearing. Notwithstanding her Request for an expedited hearing, which the Tribunal granted, she did not appear willing to participate in a hearing, unless it was on her terms, and she felt confident that the Tribunal would determine the Application in her favour.

20It is clear from the materials that the applicant has worked tirelessly for many years on behalf of her son, and she is convinced in the merit of her cause. The Tribunal, however, must balance the rights and interest of both parties, and establish a fair procedure to determine whether a violation of the Code has occurred. Parties, no matter how strong their convictions, should not expect that the Tribunal will dispense with due process, and simply order a remedy, based on the strength of those convictions.

21The applicant states that “the Tribunal can do what it wants to do.” As noted, the Tribunal is an adjudicative body whose mandate is to receive and determine Applications brought under the Code, based on evidence and submissions presented at a hearing. The Tribunal does not “do what it wants to do” with Applications.

22The applicant shall have until June 5, 2009 to indicate whether she wishes to proceed with her application. In view of the reasons set out above, should the applicant wish to proceed with her Application, she will be required to attend an in-person hearing. If the applicant fails to advise by June 5, 2009 that she wishes to proceed with the Application, the Application shall be deemed to have been abandoned.