HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hardev Kumar
Applicant
-and-
William Osler Health Centre o/a Etobicoke General Hospital and Sameer D’Souza
Respondents
Interim Decision
Adjudicator: David Muir
Indexed as: Kumar v. William Osler Health Centre
1This is an Application filed on May 25, 2009 and perfected on July 29, 2009 pursuant to section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2This Interim Decision deals with a Request for Order During Proceedings (Request) filed by the respondents seeking early dismissal of the Application pursuant to section 45.1 of the Code; alternatively an adjournment of the hearing to a mutually convenient date; and an Order requiring the applicant to comply with his disclosure obligations under the Tribunal’s Rules.
Request to Dismiss Pursuant to Section 45.1
3The respondents state that this Application should be dismissed because it has been appropriately dealt with by the Complaints Committee of the College of Physicians and Surgeons and then by the Health Professions Appeal and Review Board. The respondents state that the decisions of the College and the Board were not provided to the Tribunal because these decisions are not admissible in a civil proceeding pursuant to s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
4The Request to Dismiss is rejected at this stage. In the absence of the decisions being relied upon, and oral submissions from the parties, I am not satisfied that the substance of the Application has been appropriately dealt with.
Request for an Adjournment
5The hearing is set for April 15, 2010. The Tribunal set this date in consultation with the parties. The individual respondent states that he advised the Tribunal that he was only available on April 2 and April 5. These are both days when the Tribunal is closed for Easter holidays. When the issue was raised, the Tribunal advised the respondents to provide further acceptable dates in April. In the absence of any further advice, the Tribunal set the date for April 15.
6The respondents state the individual respondent is a busy emergency room physician and is booked for a shift on April 15. It is not said that he cannot make alternate arrangements for that date. An adjournment is not appropriate in these circumstances.
Request for Production
7The respondents state that the applicant has failed to comply with his obligation to deliver and file a statement of additional facts and remedies sought and to produce all arguably relevant documents.
8The parties are reminded of the Tribunal’s Rules of Procedure for Transitional Applications pursuant to section 53(3) and 53(5) of the Code in particular Rules 3.3 and 3.4:
3.3 Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate.
3.4 Where a fact or issue is not raised in the Application (Form A or Form TR-1), complaint, Response (Form B or Form TR-2), the Response to the complaint, or in a supplemental statement of facts and issues filed after mediation, the Tribunal may refuse to allow the party to present evidence or make representations about the fact or issue unless satisfied there would be no substantial prejudice and no undue delay to the proceedings.
9The applicant shall forthwith deliver and file a statement of additional facts and remedies sought and produce all arguably relevant documents. The consequences if any of any failure on the part of the applicant to comply with the Tribunal’s Rules may be raised with the adjudicator presiding at the hearing on April 15th, 2010.
10The parties should be prepared to deal with the merits of the Application in addition to any remaining preliminary issues at the hearing.
11I am not seized.
Dated at Toronto, this 15th day of March, 2010.
“Signed by”
David Muir
Vice-chair