A.M. v. Michener Institute for Applied Health Sciences, 2010 HRTO 430

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.M. Complainant

-and-

The Michener Institute for Applied Health Sciences, Cathy Pearl, Elizabeth Mercuri, Michele Downie, Nancy McBride and Paul Gamble Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: February 24, 2010 Citation: 2010 HRTO 430 Indexed as: A.M. v. Michener Institute for Applied Health Sciences

APPEARANCES

A.M., Complainant ) Victor Opara, Counsel

The Michener Institute for Applied Health ) Sciences, Cathy Pearl, Elizabeth Mercuri, ) Peigi Ross, Counsel Michele Downie, Nancy McBride and ) Paul Gamble, Respondents )

1On February 23, 2010, the Tribunal released an oral ruling on various outstanding issues including a request to anonymize the complainant’s identity; an objection to several of the proposed witnesses of the complainant; and a request that the complainant’s counsel be found in contempt or alternatively there be an order for timely attendance at the hearing. This Interim Decision confirms that ruling and provides reasons.

BACKGROUND

2This is a complaint which was originally referred by the Commission to the Tribunal on December 2, 2008. The complaint arises out of the complainant’s attendance as a student at the Michener Institute (the “Institute”) in the 2005-2006 academic year. The Institute is a post-secondary educational institution offering courses and programs in various health disciplines. The named individual respondents are either instructors or administrators at the Institute.

3During his time in the program, the complainant alleges that the respondents violated his right to be free from discrimination on the basis of disability or perceived disability, race, ethnic origin and creed. In addition, the complainant alleges that the respondents failed to accommodate him in respect of a tremor. The complainant further alleges that when he reported his concerns, the Institute failed to properly investigate and instead required that he undergo a psychiatric assessment. He alleges that the Institute refused to allow him to continue to attend school unless he received treatment for the mental disorder that was diagnosed (a diagnosis the complainant disputes).

4The respondents deny the allegations. The respondents state that the complainant’s concerns were taken seriously, reviewed and investigated. However, the allegations were not supported on the evidence and the Institute referred the complainant to counsellors, who identified a possible mental health issue. As a result, the complainant was put on a leave of absence and referred for an assessment at the Centre for Addiction and Mental Health (“CAMH”). The respondents rely on the subsequent report of a psychiatrist at CAMH which diagnosed the complainant as having a mental disorder to support their decision to place the complainant on a medical leave of absence effective November 20, 2006.

5The hearing on the merits commenced on July 21, 2009, at which time the parties made opening statements and presented submissions on various preliminary issues, including whether the respondents would be permitted to rely on the psychiatrist’s report of Dr. Klassen. The complainant objected to the respondents’ reliance on Dr. Klassen’s report on the basis that he had been a patient of CAMH at the time and that the respondents were therefore prevented from relying on the report because of section 35(9) of the Mental Health Act, R.S.O. 1990, c. M.7, as amended. Section 35(9) prohibits disclosure in a proceeding of any information about a patient obtained in the course of assessing or treating a patient except where the patient or his guardian consents or where the Divisional Court determines that disclosure is essential in the interests of justice.

6Having regard to the objection, the respondents elected to proceed to file the necessary application with Divisional Court. In an unreported decision, on September 24, 2009, the Divisional Court granted the application and issued an order permitting disclosure of the report of Dr. Klassen dated October 8, 2006, and permitting him to give oral evidence in respect of his report during the Tribunal’s proceeding.

7Thus far in the hearing, I have heard the complainant’s evidence-in-chief. The complainant is currently under cross-examination.

REQUEST TO ANONYMIZE

8On July 24, 2009, the respondents requested that the style of cause be amended to “M v. The Michener Institute…” The basis for the request was the respondents’ intention to call the psychiatrist from CAMH who would tender sensitive evidence. The respondents submitted that an amended style of cause would better serve the privacy of the complainant.

9Initially, the complainant did not request anonymization, given the objection to Dr. Klassen’s proposed evidence, although counsel for the complainant stated that he would seek anonymization if reference was to be made to the content of the psychiatrist’s report and diagnosis received. Having regard to the submissions and the material before it, the Tribunal did not anonymize the style of cause as requested by the respondents at that time.

10As a result of the Divisional Court’s ruling, the Tribunal sought further submissions from the parties on the issue of anonymization. The complainant has indicated that he “supports” anonymization, which I take to be a request to anonymize. The respondents have taken no further position, indicating that they are content to leave the issue in the hands of the Tribunal and the complainant.

11In my view, the circumstances of this case justify the anonymization of the complainant’s name. I am mindful of the general principle that any kind of publication ban will not be granted merely on the basis of consent of the parties due to the importance of the transparency of legal proceedings and public interest that hearings be open. However, in my view this is one of those exceptional cases where anonymization is justified. The hearing will result in the disclosure of highly sensitive information about the complainant suggesting that he suffers from a serious mental illness, which he disputes. In other cases, the Tribunal has recognized that there is a stigma attached mental illness; Braithwaite v. Ontario (Attorney General), 2006 HRTO 15. Further, I am persuaded by the fact that one of the issues in the complaint relates to whether or not the complainant was “required” to participate in the assessment or was misinformed about the purpose of the assessment that resulted in the diagnosis in question. In essence, part of his complaint relates to the respondents’ treatment of him in generating and then relying on the assessment. Having regard to all of the circumstances, I am prepared to grant the complainant’s request for anonymity.

12In making this decision, I am mindful that there has been a previous Interim Decision that has included some identifying information about the complainant. However, this concern was not raised by the complainant and accordingly I make no order at this time with regard to that Interim Decision.

13On the basis of the material before me and the submissions made, I therefore grant the complainant’s request for anonymization. The Tribunal’s communications to the parties from this point forward, and any decisions in this matter, will use initials in place of the complainant’s name.

Objection to the Complainant’s Witnesses

14The respondents have objected to the complainant calling five additional witnesses: Heather Chetwynd; Tammy Ramsay; George Weston Ltd.; CAMH; and Rebecca Hines.

15The respondents object to the calling of these witnesses on the basis of late disclosure as well as relevance.

16With respect to the lateness of disclosure, Ms. Chetwynd and Ms. Ramsay were identified as possible witnesses at the pleadings stage although the complainant did not file witness statements for them at the time of providing disclosure of other witnesses in July 2009. The corporate witness, George Weston Ltd., was identified for the first time at the hearing on October 8, 2009. The remaining two witnesses, CAMH and Rebecca Hines, were identified in a subsequent written submission by counsel on October 9, 2009 and October 13, 2009, respectively.

17Rule 71(b) of the Tribunal’s Rules of Practice applicable to this hearing requires a complainant to serve on the other parties and file with the Tribunal, no later than 10 days prior to the commencement of the hearing, a list of witnesses and a brief summary of their evidence. In a conference call with the parties on April 2, 2009, the Tribunal set the date of May 18, 2009, for disclosure of the complainant’s witness statements. The complainant did not comply with the requirement and on June 11, 2009, sought an adjournment of the hearing originally scheduled for June 12, 2009, because of illness of counsel. The hearing was adjourned and the Tribunal directed that the complainant comply with his filing requirements immediately or as soon as counsel was well enough to do so, along with providing reasons for missing the filing requirements. Ultimately, the complainant provided a more detailed explanation as to why he had missed the filing deadlines and filed witness statements in July 2009. No witness statements were filed for the five witnesses now proposed.

18Based on this history and the timing of identifying these witnesses, I find there is no question that the complainant is several months late in providing disclosure of the witness statements in question. Rule 108 of the Rules of Practice states that no party will be allowed to introduce evidence that was not disclosed in accordance with these Rules except with leave of the Tribunal. In determining whether to exercise my discretion to relieve against the requirements of the rules, I must first consider whether there a legitimate reason for the delay.

19Counsel for the complainant has suggested that the witnesses are only being identified now as a result of the outcome of the Divisional Court proceeding and the fact that Dr. Klassen will be called as a witness. However, I have difficulty with this explanation given that the issue pertaining to Dr. Klassen has been an issue between the parties since the pleadings were filed and certainly when the hearing commenced in July 2009. The parties’ disclosure obligations at the outset of the hearing are premised on the case as originally pleaded and not what either party wishes it to be. While there may be instances where new issues arise in the course of the hearing which may justify the calling of additional witnesses, this is not the case here. Further, it would appear from the complainant’s pleadings that even the complainant believed his obligation was to disclose all witnesses, given that two of the five witnesses were identified as possible witnesses. Finally, contrary to the complainant’s submissions, the complainant was specifically asked to identify his witnesses and at no time prior to October 8, 2009, suggested that the five additional witnesses now identified would become necessary if Dr. Klassen was permitted to testify.

20Having regard to the foregoing I do not find there is a legitimate explanation as to why the additional witnesses are only being identified now. Moreover, based on the material filed, I have difficulty in seeing the relevance of any of the proposed witnesses at this time.

21In general, the complainant has described in very sparse terms why he wishes to call each of the witnesses in question. While each of the witnesses is connected in some manner to the events in question, it is not apparent from the proposed witness statements how their proposed evidence will assist in my determination of the merits of the complaint.

22Ms. Chetwynd is a registered nurse employed by a George Weston Ltd., which is not named as a party alleged to have violated the complainant’s rights. The complainant states that Ms. Chetwynd will testify regarding her receipt of documents from the Institute and her subsequent correspondence to Dr. Klassen or CAMH. It is unclear how this proposed witness relates to the complainant’s theory of the complaint. There is no allegation made about Ms. Chetwynd in the complainant’s pleadings; the only reference is that the Institute instructed or directed her to send certain information. The respondents have indicated they are prepared to stipulate to her receipt and forwarding of the information in question, as well as the fact that she was asked by representatives of the Institute to do so. Based on the foregoing, it is unclear what remaining probative value there would be in her proposed evidence at this stage of the hearing.

23I reach a similar conclusion about Ms. Ramsay. Ms. Ramsay is also employed by George Weston Ltd. as an executive assistant to Ms. Chetwynd. The complainant states that she will testify about her receipt of documents respecting the complainant from the Institute; her subsequent correspondence/emails with Ms. Chetwynd, Dr. Klassen and CAMH; and events between July and September 2006. Again, no particulars of what those events are have been provided and the only reference in the pleadings is that Ms. Ramsay acted under the Institute’s instructions in providing certain information to Dr. Klassen. The respondent has indicated that it is prepared to stipulate to Ms. Ramsay’s receipt of certain faxes and sending such information to Dr. Klassen, as well as the fact that she did so on the instruction of Ms. Chetwynd (who was acting at the request of representatives of the Institute). The only apparent dispute between the parties is whether the information is properly characterized as health information or personal information, although there does not appear to be any disagreement on what was received and forwarded. In these circumstances, I fail to see what additional probative value there would be in calling Ms. Ramsay at this stage of the hearing.

24The complainant also seeks to call George Weston Ltd. and CAMH as witnesses. While the complainant has identified the corporations as witnesses, I have considered the request on the assumption that the complainant means a representative of each corporation.

25The complainant suggests that George Weston Ltd. will be called regarding events that led to the generation of correspondence dated March 19, 2007; a voice mail message left by the complainant; and materials received from Michener Institute. On the basis of these sparse particulars I am not convinced that the proposed evidence is relevant such that it has probative value to the issue of whether or not the respondents discriminated against the complainant.

26Similarly, the complainant indicates that he wishes to call CAMH as a witness to give testimony about the receipt of certain information (such as faxes, emails and other correspondence) from Heather Chetwynd, Tammy Ramsay, George Weston Ltd. and various employees of the Institute, as well as “events that occurred before and after the assessment of Dr. Klassen”. The latter is not particularized. In his subsequent submissions, the complainant argues that Dr. Klassen may not be able to identify certain information and hence it is necessary to call CAMH.

27Based on the material filed, I am not prepared to hear from a representative of CAMH – particularly given the fact that Dr. Klassen is to be called as a witness and the respondents have indicated their willingness to stipulate that certain information was received by Dr. Klassen. On the basis of the submissions made, it is not apparent why an additional witness would offer evidence that would be of assistance to the Tribunal.

28Finally, the complainant has identified Rebecca Hines for the purpose of her investigation into and report on this matter. In the hearing on February 23, 2010, the complainant indicated some uncertainty as to whether or not this request was still being made. Assuming that it is, I do not find that Ms. Hines’ proposed evidence is relevant to the Tribunal’s determination of whether or not the respondents discriminated against the complainant as the Tribunal will be basing its determination in this matter based on the evidence and argument submitted in this hearing.

29In summary, having regard to all of the circumstances, including the submissions made, I am not prepared to hear from the complainant’s proposed additional witnesses at this stage of the hearing.

30In denying the complainant’s request to call these witnesses, the Tribunal’s ruling should not be interpreted as sanctioning any limitation on the scope of what may be relevant cross-examination or what reply evidence may become necessary. The Tribunal will address any issues regarding the scope of cross-examination and the extent of any reply evidence that may be necessary as those issues arise.

Request for Order of Contempt/Timeliness

31On October 14, 2009, the respondents requested that the Tribunal issue an order for contempt or alternatively an order for timeliness in attending the hearing as against counsel for the complainant. The request was based on the complainant’s counsel being repeatedly late in arriving at the hearing at the commencement of the day and after scheduled breaks.

32There is no question that counsel has been repeatedly late for the Tribunal’s hearing. For example, at the time the respondents made this request, counsel has been late for the commencement of the hearing on three of the four preceding dates: August 12, 2009 (20 minutes late); October 8, 2009 (37 minutes late); and October 14, 2009 (25 minutes late). Similarly, counsel had been late returning from breaks. For example on October 14, 2009, counsel was 25 minutes late returning from the lunch break.

33The complainant’s counsel responded to the request by alleging that request stemmed only from the animosities between counsel and then referred to the nature of some of his complaints against the respondents’ counsel which I do not find necessary to repeat here. While I directed counsel to respond to the substantive issue raised, counsel did not do so and instead continued to submit that the issue was personal between counsel and that he should be allowed to address the issue as he knows it to be. A subsequent direction that I had heard sufficient submissions from the parties and would reserve on the request resulted in complainant’s counsel complaining to the Tribunal that he had had insufficient time to make his submissions. The Tribunal offered counsel the opportunity to put any further submissions in writing, but indicated that no further time would be spent in the hearing on the matter. Counsel continued speaking, interrupting me and ignoring my direction to proceed with the evidence.

34On the following day, October 15, 2009, counsel for the complainant did not arrive at the hearing at the start time of 10:00 a.m. Counsel called the Registrar shortly after 10 advising that he would be late and appeared over 10 minutes late. Upon his arrival, counsel cited a personal reason as the reason for arriving late. Counsel noted that it had become somewhat impossible for “one reason or another” to arrive on time and that one option was for the Tribunal to “accommodate” counsel by starting later and ending the hearing later each day, although it was apparent that counsel was not relying on any Code-related grounds.

35The respondents submitted that they did not consent to the request for any adjustment to the scheduled hearing day nor do I find it appropriate to consider such a request further. The starting time for the hearing is 10:00 a.m, which is the standard starting time for hearings that were originally referred as Commission-referred complaints. The Tribunal may accommodate a party with a different starting time for medical or otherwise legitimate Code-related reasons, but this is not the nature of the request being made.

36Subsequent to October 15, 2009, the Tribunal received no further submissions from the complainant on the request that there be an order for contempt or alternatively an order for timeliness.

37The Tribunal does not have the jurisdiction to make a finding and/or order of contempt. However, under section 13 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”), the Tribunal has the jurisdiction to state a case for contempt to the Divisional Court. The decision to state a case for contempt to the Divisional Court is one which is exercised by adjudicative tribunals in only the rarest of cases and where there are no other options available to appropriately respond to the actions of a party. The HRTO has never taken this step in its history and, depending on the facts, the Tribunal would likely act in such a manner only where there are no other options available to appropriately respond to the conduct of a party; see also Marsden v. Ontario (Community Safety and Correctional Services), 2009 HRTO 1795.

38The Tribunal has other mechanisms for controlling a party’s or counsel’s conduct. Under section 25 of the SPPA, the Tribunal has the power to control its own processes and make such orders as are necessary to prevent an abuse of its process.

39In the circumstances of this case, I am seriously concerned about counsel’s conduct. While there will be occasions where a party/counsel is not able to arrive on time, I would expect that a party or counsel would only arrive late when there is a medical emergency or similar exceptional reason. In this hearing, it is notable that the complainant has been consistently on time and it is only counsel for the complainant who has been repeatedly late. Further, as mentioned by counsel himself, there have been many reasons for his lateness including traffic conditions, difficulties with his briefcase cart and photocopying. I do not find any of the reasons given to be exceptional such that they are legitimate excuses, particularly given the frequency with which the lateness has occurred.

40As noted by the Tribunal prior to the request being brought by the respondents, such conduct is disrespectful to the Tribunal and impacts on the length of the hearing which is undoubtedly a concern to the parties, as well as to the Tribunal.

41Further, and in addition, I have a concern with counsel’s response to the issue and his apparent refusal to abide by the Tribunal’s directions by continuing to argue when he was instructed to move on and continue with the calling of evidence. This conduct has not been atypical with counsel for the complainant during this hearing.

42Having regard to the foregoing, I find it appropriate to provide explicit directions to counsel with respect to the continuation of this hearing.

43The Tribunal directs the complainant’s counsel to the following:

a. Counsel shall arrive on time by 10:00 a.m. for every hearing date (unless the starting time is changed by the Tribunal) and arrive on time following every break in the hearing day, unless there is a legitimate reason such as a medical emergency, accident or other exceptional reason in which case counsel should make all reasonable efforts to advise the Tribunal of the same by telephone or other communication prior to the starting time for the hearing or the resumption of the hearing, as may be applicable.

b. Counsel shall conduct himself with courtesy and respect when addressing the Tribunal, including complying with any directions that the Tribunal may make.

44In the event that counsel is late again and fails to contact the Tribunal and provide a legitimate reason for his lateness or otherwise fails to comply with these directions, the Tribunal may proceed with the hearing in the absence of counsel and/or receive submissions from the parties as to what other relief should be granted.