Hamilton-Clark v. Sunnybrook Health Sciences Centre, 2009 HRTO 810

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jacqueline Hamilton-Clark

Applicant

-and-

Sunnybrook Health Sciences Centre, Marie Newcombe, Sheila Robson,

Carolyn Ring and Christine Ader

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: June 10, 2009

Citation: 2009 HRTO 810

Indexed as: Hamilton-Clark v. Sunnybrook Health Sciences Centre

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 applicant alleges that because of her disability she is unable to wear a mask as is occasionally required for her job and the corporate respondent (“Sunnybrook”) and the personal respondents have failed to appropriately accommodate her disability. This Interim Decision addresses the applicant’s request for an interim remedy.

Interim Remedy

2With her Application, the applicant filed a Request for Interim Remedy (“Request”). The applicant is alleging that the respondents are subjecting her to constant harassment, intimidation and threats of dismissal and her interim remedy asks that the Tribunal order this behaviour to stop.

3Although the applicant’s Request was made on the required Form 16, it was not accompanied by one or more declarations signed by person with direct first hand knowledge detailing all the facts upon which the applicant wished to rely, as required by the Tribunal’s Rules (Rule 23.3(b)). As a result the Tribunal wrote to the applicant (and respondents) on April 1, 2009 to indicate that the Request was not complete and could not be processed by the Tribunal. The Tribunal also indicated that the respondents were not required to file a response to the Request until one or more declarations were delivered. A copy of the Tribunal’s decision in Chopra v. Kratiuk, 2009 HRTO 109 was provided to the parties.

4On April 28, 2009 the applicant resubmitted her Request (unchanged) under a covering letter indicating that her psychiatrist had first hand knowledge of what the applicant was enduring but had not provided a declaration as the psychiatrist was not familiar with declarations and was not sure what would be appropriate to include. In the alternative the applicant provided two letters from her psychiatrist to Sunnybrook dated March 3 and March 20, 2009 as well as assorted e-mails exchanged between the applicant and a number of the personal respondents. The applicant filed Statements of Delivery to indicate that she had provided the respondents with her re-submitted Request and attendant documents.

5The respondents have not replied to the applicant’s latest materials.

Decision

6The decision in Chopra v. Kratiuk explains why compliance with the Tribunal’s rules generally and specifically in relation to requests for interim remedies is important to a fair just and expeditious process.

The Tribunal’s Rules and processes are designed to ensure the fair, just and expeditious determination of the merits of matters before it. They are not meant to impose unduly technical barriers to the determination of the issues. The Tribunal has the power to accept material from parties even when they fail to comply with the Rules.

However, the technical requirements of the Rules should not be lightly ignored. Strict compliance with the Rules may be necessary to the fair, just and expeditious determination of the issues before the Tribunal. In a request for interim remedies, an applicant is asking the Tribunal to take an extraordinary step. He or she is asking the Tribunal to order a respondent to take or not take certain actions, before the merits of the Application has been decided. Even before any violation of the Code has been proven, the applicant wishes the Tribunal to intervene and provide remedies.

There will be cases where such an extraordinary step is justified. However, it should not be taken without the proper evidentiary and legal foundation, part of which is reflected in the materials an applicant must file under Rule 23.

7The need to establish an appropriate evidentiary and legal foundation for a request for an interim remedy is further noted in TA v. Montclair, 2009 HRTO 369 when the Tribunal states:

Because the Tribunal will rarely receive evidence through the oral testimony of witnesses, it is critical for the parties to provide sufficient evidence through signed declarations from persons with first hand knowledge of the facts being alleged. Failure to comply with this requirement may result in the Request being dismissed outright.

8In this case the applicant has not provided the signed declarations necessary to establish an appropriate evidentiary foundation for her Request. Even if the letters from the applicant’s psychiatrist were to be accepted in lieu of a signed declaration they do not provide sufficient evidence to support the Request. The letters identify some of the applicant’s health issues, her medication, her intended therapeutic plans and the importance of these plans being respected by the respondents. The letters do speak to the importance of the applicant being accommodated in her workplace. What they do not provide is any first hand knowledge of the nature of the interactions between the respondents and the applicant to support the need for the extraordinary step of ordering an interim remedy.

9In the circumstances The Tribunal denies the Request for an Interim Remedy.