HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lynn Logtenberg Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Finance (Financial Services Commission of Ontario) Respondent
AND B E T W E EN:
Lynn Logtenberg Applicant
-and-
Multi Disciplinary Assessment Centre Respondent
INTERIM DECISION
Adjudicator: Mark Hart Date: September 21, 2010 Citation: 2010 HRTO 1909 Indexed as: Logtenberg v. Ontario (Finance)
1These are two Applications filed June 30, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The Applications relate to the applicant’s attendance at the Multi Disciplinary Assessment Centre (“MDAC”) on November 24, 2004. She alleges that the MDAC discriminated against her on the basis of disability by refusing to permit her chosen aide to attend with her, and that the Financial Services Commission of Ontario (“FSCO”) failed to take appropriate steps to respond to this alleged denial of accommodation.
3The purpose of this Interim Decision is to address three matters: (1) the applicant’s request for accommodation; (2) the applicant’s Request for Order dated August 12, 2010; (3) the applicant’s request for anonymization; and (4) case management for the hearing on October 15, 2010.
The Applicant’s Request for Accommodation
4By letter dated June 8, 2010, the applicant wrote to the Tribunal to request accommodation of her disabilities at the hearing in this matter. In particular, she requested that the hearing be scheduled over the course of 3 to 5 non-consecutive days of no more than 2 hours in duration in order to allow her to meaningfully participate in the hearing process.
5On July 23, 2010, the Tribunal sent a letter to the applicant which stated as follows:
With regard to the applicant’s request for accommodation, the Tribunal notes that while the applicant has filed some historical medical evidence, the Tribunal does not have any current medical evidence to support the applicant’s request that the hearing be restricted to no more than two hours per day and be scheduled for non-consecutive days. Within 30 days of the date of this letter, the applicant is requested to submit to the Tribunal and provide to the respondents medical evidence from a qualified medical practitioner to support her request for the specific accommodation as outlined in her letter of June 8, 2010. In addition, this medical evidence shall indicate whether there are any other means of accommodating the applicant that will meet her disability-related needs and still allow her to participate in an in-person hearing and must specifically address whether it is possible for the applicant to participate in the hearing for periods of longer than 2 hours (for example, for 2.5 hours or 3 hours), whether it is possible for her to participate on consecutive days, whether it is possible for the applicant to participate for two such periods in one day if there is a sufficient period in the middle of the day to allow her to rest, and whether there are any other accommodations that could be provided to allow the applicant to participate for longer durations or on consecutive days.
6The applicant’s deadline for providing this material was subsequently extended to August 31, 2010.
7On August 31, 2010, the applicant filed material including a letter from her physician, Dr. St. Martin, dated July 29, 2010. Dr. St. Martin’s letter supports the applicant’s request that the hearing in this matter be limited to no more than two hours in length, that she is not capable of proceeding on consecutive days, and that it would be impossible for her to participate in two such periods in one day even with a rest period in between.
8The Tribunal notes that the letter from Dr. St. Martin has not been provided to the respondents, and that the applicant objects to the disclosure of this letter to the other parties. It is not the Tribunal’s general practice to require that medical reports in support of a party’s request for accommodation before this Tribunal be disclosed to the other parties. The Tribunal does not believe that it is necessary to depart from this general practice in this instance.
9The applicant’s request for accommodation is granted, and the hearing day on October 15, 2010 will be limited to no more than two hours in length. If more than one day is required for the hearing, any subsequent days will similarly be limited to no more than two hours in length and will not be scheduled on consecutive days. Specifics as to the manner in which the hearing will be conducted in this matter will be addressed below.
The Applicant’s Request for Order dated August 12, 2010
10The applicant filed a Request for Order dated August 12, 2010 seeking an order pursuant to Rule 18.5 of the Tribunal’s Rules of Procedure for Transitional Applications (the “Transitional Rules”) that the Tribunal refuse to consider or allow the respondent MDAC to rely upon any document not disclosed by August 9, 2010 at the hearing and that the respondent MDAC has waived its right to participate any further in the Tribunal process.
11Pursuant to the Transitional Rules and the Notice of Hearing sent out by the Tribunal on July 2, 2010, the respondent MDAC was required by August 9, 2010 to deliver to the other parties and file with the Tribunal a statement of any additional facts that it intends to rely upon and its position with regard to the remedies requested. By August 9, 2010, the respondent MDAC also was required to provide disclosure to the other parties of a copy of all arguably relevant documents in its possession (except where privilege is claimed). The applicant’s Request for Order states that no such material was provided by the respondent MDAC.
12In its Response to Request for Order, the respondent MDAC states that it was required to file “such disclosures as it desired” and that if no disclosures were filed, this does not diminish its right to raise the defences it has put forward.
13With regard to the matter of filing a statement of additional facts and a response to requested remedies, I note that the respondent MDAC’s Response as filed with the Tribunal sets out its position with respect to the allegations raised in the Application and provides a response to the remedies requested in the underlying complaint. The purpose of allowing parties in the transition process an opportunity to file a statement of any additional facts they intend to rely upon is intended to afford to the parties an opportunity to serve and file any additional material facts they intend to rely upon which are not already set out in the Application or Response filed. In the respondent MDAC’s case, it appears that it intends to rely upon the material facts as set out in its Response and does not intend to rely upon any additional facts. If that is the case, there is no requirement for it to file a statement of additional facts.
14With regard to its response to the requested remedies, I note that, as will be addressed below, the hearing in this matter will be bifurcated to deal first with issue of whether there was any violation of the Code, and then subsequently and only if a violation of the Code is found, with any issue of remedy. Accordingly, it is premature to address the respondent MDAC’s response to the remedies requested by the applicant at this time.
15With regard to the issue of disclosure, I note that the Tribunal’s Transitional Rules require disclosure of all arguably relevant documents in a party’s possession, and not just documents upon which a party intends to rely. From the Response to Request for Order filed by the respondent MDAC, it is not clear to me whether MDAC has made full disclosure of all arguably relevant documents in its possession, as opposed to “such disclosures as it desired” as stated in the Response. If there are any arguably relevant documents in the possession of the respondent MDAC which have not already been disclosed, any such documents shall be disclosed to the other parties by no later than September 27, 2010. Any consequences arising from any failure to make such disclosure at any earlier time shall be addressed by the adjudicator at the hearing.
16With regard to the applicant’s request that the respondent MDAC be regarded as having waived its right to further participate in the hearing process, it is my view that there is no proper basis upon which to grant such an order. The respondent MDAC has been actively engaged in this process and has filed substantial materials and submissions to date. While the respondent MDAC may not have fully complied with some requirements of the Tribunal’s Rules, any such non-compliance to date does not justify an order of this severity.
The Applicant’s Request for Anonymization of Her Name
17The applicant has made a request that her name be anonymized in this proceeding due to privacy concerns.
18While the Tribunal’s Rules require anonymization where an application is filed by or on behalf of a minor, no such requirement is imposed where the applicant is an adult. The Tribunal regularly deals with applications filed by adult persons with disabilities where medical issues are raised that could be regarded as affecting that person’s privacy interests. However, that alone is not a sufficient basis upon which to depart from the Tribunal’s standard practice of identifying the parties to the proceeding.
19The Tribunal does recognize the sensitive nature of some of the medical evidence provided in its cases, and the Tribunal’s decisions strive to minimize unnecessary disclosure of such evidence.
20The applicant’s request for anonymization is denied.
Case Management
21By letter dated September 2, 2010, the Tribunal advised the parties as to the process it proposed to follow at the hearing scheduled for October 15, 2010 and invited submissions from the parties in response. The process proposed by the Tribunal was as follows:
a) The hearing on October 15 would be limited to two hours commencing at 10:00 a.m. and continuing until noon.
b) The hearing would be bifurcated (separated) so that the only issue to be determined at the October 15 hearing would be whether or not there has been a violation of the Code. The issue of remedy would be determined at a later date and only if a violation of the Code is found.
c) By no later than September 27, 2010, the applicant would serve and file a complete written statement of all of her evidence relevant to the issue of whether there was a violation of the Code. If the applicant intends to rely upon the evidence of any other witnesses, she would also by that date serve and file a complete written statement of all of the evidence of each witness. By that date, the applicant also would serve and file a list of any documents she intends to rely upon at the hearing, and would file with the Tribunal a copy of any documents not already filed.
d) By no later than October 4, 2010, the respondents would serve and file complete written statements of all of the evidence of each of their witnesses, and also would serve and file a list of any documents they intend to rely upon at the hearing, and would file with the Tribunal a copy of any documents not already filed.
e) The foregoing requirements would stand in place of the obligation under the Rules to file witness statements and documents 20 days prior to the hearing.
f) The Tribunal would not require opening statements from the parties at the hearing on October 15.
g) In lieu of examination-in-chief, the Tribunal would simply have the witnesses affirm the truth of the content of their written statements and proceed directly with cross-examination.
h) Cross-examination of the applicant would be limited to 45 minutes to be shared by counsel for both respondents. Time limits for the cross-examination of other witnesses would be set by the Tribunal following receipt of the detailed statements.
i) If the respondents wish the evidence of any witness to be given by teleconference, they shall so indicate in the submissions to be filed by September 15 and the Tribunal will rule in advance of the hearing on whether this would be permitted.
j) As requested by the applicant, an opportunity would be afforded to her to make oral submissions following the conclusion of the evidence, and an appropriate time limit would be set by the Tribunal for these submissions. The respondents would be afforded the option of making oral submissions or filing their final submissions in writing.
22The applicant responded by letter dated September 8, 2010 and expressed general agreement with the proposed hearing process. The applicant asked whether she and the respondents were required to file caselaw at the same time as they were required to provide their complete statements of evidence. This is not required, and the parties may simply bring any relevant caselaw to the hearing. If any further submissions are required to address any caselaw provided at the hearing, this can be done by way of written submissions.
23With regard to paragraph (e), the applicant noted that she would have only 11 days to familiarize herself with the evidence to be presented by MDAC and FSCO, and expressed concern that this may not be sufficient time in light of her disabilities. In this regard, I note that the positions of the parties have been quite clear on the materials already filed since the events at issue occurred in 2004. I do not anticipate that these positions will change in any significant way when the evidence is filed. If there is some specific evidence that the respondents propose to introduce that takes the applicant by surprise, this can be addressed by the adjudicator at the hearing on October 15, 2010.
24With regard to paragraphs (g) and (h), the applicant asked the Tribunal to confirm that cross-examination of the applicant and other witnesses would be scheduled at a date further than the October 15, 2010 hearing date. This was not the intention of the Tribunal’s proposal. The Tribunal’s proposal would mean that the hearing on October 15, 2010 would commence with the applicant affirming the truth of the complete statement of evidence that she would have filed by September 27, 2010 and the respondents would be permitted a period of 45 minutes for cross-examination. If the applicant sought to rely upon any further witnesses, they too would simply affirm their written statements of evidence and the respondents would proceed immediately with cross-examination. Any evidence from the respondents’ witnesses would proceed in the same manner, with cross-examination taking place immediately after these witnesses had affirmed their statements of written evidence.
25As a result, it is anticipated by the Tribunal that the hearing day on October 15, 2010 would primarily deal with cross-examination of witnesses. If all cross-examinations were completed prior to the end of the two hour period, then the applicant would be afforded an ability to make oral submissions. In my view, this should provide sufficient time at the very least to complete the evidence in this matter. This is not a case where a significant amount of oral evidence is required. The basic facts are largely not in dispute. Rather, the factual inquiry in this case will relate more to the question of the extent to which the applicant’s request to be accompanied by her chosen aide is a need arising out of her disabilities, as opposed to a preference or desire, and the extent to which the applicant’s needs could appropriately have been addressed by MDAC’s offer to have the assessment conducted in the presence of a nurse it offered to provide. In my view, the role and responsibility of FSCO in this matter will largely be determined on the basis of written communications between the parties and legal submissions, and is unlikely to require a significant amount of oral evidence.
26With regard to paragraph (i), the applicant expressed concern about the proposal to allow respondent witnesses to testify by teleconference, on the basis that she would not be able to observe the witnesses’ visual cues, nuances and demeanour. In my view, this is not a case where there are direct conflicts in the evidence regarding the basic factual events where the observed demeanour of respondent witnesses is likely to play a significant role. The Tribunal will allow the respondent witnesses to testify by teleconference, if they so choose. If any issue arises regarding the specific evidence given by a respondent witness by teleconference, this may be raised before the adjudicator who conducts the October 15 hearing.
27Finally, the applicant requests confirmation that she will be afforded an opportunity to reply to the respondents’ submissions. The applicant does have a right of reply, and the adjudicator at the October 15 hearing will determine whether this right of reply is to be exercised orally or in writing.
28The respondent FSCO made submissions in response to the Tribunal’s proposal by letters dated September 3 and 15, 2010. FSCO submits that the Tribunal should determine as a preliminary issue whether it had the duty or authority to either select a second assessment centre to assess the applicant or to direct MDAC as to the use of facilitators or assistants in its assessment of the applicant. FSCO submits that if the answer to that question is yes, then additional evidence would be required.
29I do not dispute that there are some cases where it may make sense to separate out the issues in this fashion. However, given how narrow the factual issue is in this case, I do not believe that it is necessary in the instant case. Under the Tribunal’s proposal, the respondent FSCO will be afforded the opportunity to provide written statements of all the evidence that it intends to rely upon and will have the opportunity to make its submissions both on the issue of whether it had any such duty or authority, and if so, whether it failed to take appropriate steps to respond to the applicant’s concerns. I do not see this as unduly lengthening the hearing process, or requiring a significant amount of additional evidence from FSCO.
30FSCO also raised the question of whether the applicant will be represented by counsel or a licensed paralegal at the hearing. This arises from the fact that recent correspondence from the applicant has expressly stated that it has been prepared with assistance to accommodate her disabilities. I also note that some portions of this correspondence are suggestive that some form of legal representative may have been involved in its production. If the applicant intends to be represented by a lawyer or licensed paralegal at the October 15 hearing, she shall advise the Tribunal by September 27, 2010 and the identified legal representative shall get on the record in this matter.
31The respondent MDAC provided submissions in response to the Tribunal’s proposal by letter dated September 15, 2010. MDAC similarly submits that the hearing should first address the issue of whether the applicant was entitled to accommodation, before determining whether it fulfilled any obligation it may have had to provide any such accommodation. For the reasons stated above in relation to FSCO’s request for a separation of the issues, I do not believe that this is necessary in this case or would result in a more expeditious hearing, and in fact the separation of issues in the manner proposed may serve to unduly prolong the hearing.
32MDAC also expresses concern that it is unlikely that cross-examination could be conducted within the time frames suggested by the Tribunal. MDAC does not object to the 45 minutes allocated for the respondents’ cross-examination of the applicant, but expresses concern that the applicant’s cross-examination of respondent witnesses may unduly prolong the hearing. As indicated in the Tribunal’s proposal, time allocations will be set for cross-examination of respondent witnesses, and the adjudicator at the hearing will ensure that any cross-examinations are focused on the issues to be determined and relevant. As I previously have indicated, this is not a case where a significant amount of evidence appears to be in dispute, and I do not foresee the necessity for lengthy cross-examination of witnesses.
33Finally, MDAC submits that the entirety of the hearing in this matter could be conducted by teleconference. While, as stated above, I am prepared to allow respondent witnesses to provide evidence by teleconference, I am not prepared to require that the entire hearing be conducted by teleconference. The October 15 hearing will proceed as an in-person hearing with the understanding that respondent witnesses, if they so choose, may provide their evidence by teleconference. If any further hearing dates are required to complete the hearing, the adjudicator who conducts the hearing will determine whether any subsequent days will require in-person attendance or may be conducted by teleconference or through written submissions.
34As a result, I confirm that the hearing on October 15, 2010 will proceed as an in-person hearing in Sudbury commencing at 10:00 a.m. and continuing to 12:00 noon in accordance with the Tribunal’s proposal as set out in its September 2, 2010 letter and as clarified in this decision.
35I am not seized.
Dated at Toronto, this 21st day of September, 2010.
"Signed By"
_______________________________________
Mark Hart Vice-chair