Wilson v. Work Able Centres, 2010 HRTO 568

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Wilson
Applicant

-and-

Work Able Centres Inc. and Louise Korhonen
Respondents

AND B E T W E E N:

Julie Wilson
Applicant

-and-

Financial Services Commission of Ontario
Respondent

INTERIM DECISION

Adjudicator: Mark Hart
Date: March 16, 2010
Citation: 2010 HRTO 568
Indexed as: Wilson v. Work Able Centres

1This Interim Decision addresses the applicant’s objection to these two Applications being processed together.

2Application TR-0921-09 against the respondents, Work Able Centres Inc. and Louise Korhonen (the “Work Able Application”) was filed on June 30, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on November 8, 2005.

3Application TR-0922-09 against the respondent, Financial Services Commission of Ontario (the “FSCO Application”) also was filed on June 30, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on February 28, 2006.

4On November 27, 2009, the Tribunal sent a letter to the parties in both Applications advising that these Applications appear to relate to similar facts or issues, and accordingly that the Tribunal intended to process these Applications together. If any party objected to this proposed process, they were directed to file written submissions within ten days. The applicant expressed her intention to object to this process, and requested and was granted an extension to file written submissions, which she did on January 8, 2010. These submissions were served on all respondents and no responding submissions have been filed.

5On April 27, 1997, the applicant sustained injuries in a car accident. As a result of her injuries, she received accident benefits from her insurer. The applicant’s insurer disputed payment for certain medical and rehabilitation services sought by the applicant. As a result, the insurer referred the applicant for an assessment by a Designated Assessment Centre (“DAC”). The respondent, Work Able Centres Inc. (“Work Able”) was selected as the DAC and received a request for an assessment of the applicant in or around December 21, 2004.

6The applicant’s complaint against the Work Able respondents relates to their denial of her request for accommodation of her disabilities by being allowed to attend the assessment with a facilitator.

7The applicant subsequently wrote to FSCO to raise the issue that her disabilities were not being accommodated by Work Able. In her written submissions, the applicant states that the basis of her complaint against FSCO is that it has no policy respecting adherence to the Code in the event that a DAC refuses to accommodate an individual’s disability.

8In this case, while there are distinct bases upon which the applicant is alleging that the respondents to her two Applications violated the Code, it is clear that these Applications do give rise to common issues of fact and law. The underlying factual basis for both Applications is the same and they arise out of the same events, and evidence regarding these underlying events would need to be heard and received in both Applications. In addition, the statutory and regulatory context in which these issues arise is the same. In my view, in light of this significant overlap, it would be preferable for these two Applications to be heard together in order to avoid a multiplicity of proceedings, the repetition of evidence, and the possibility of inconsistent findings of fact or law.

9The next consideration is whether any prejudice would be caused to the applicant by having these matters heard together. The applicant asserts that she will experience prejudice in two respects. First, the applicant asserts that there will be a significant amount of confusion caused by the introduction of evidence from the various respondents, and that as a result of her disabilities, she does not have the cognitive and physical stamina to have the Applications heard together.

10In support of this submission, the applicant has filed various medical reports to substantiate her cognitive impairment, which include that she has difficulties with concentration and distractibility, has trouble following abstract concepts, and needs prompting to stay on topic and needs help in getting organized. However, there is no medical evidence submitted to support that the applicant would experience significant prejudice by having these two Applications heard together as opposed to having them heard separately. Nor do I find that there is any sufficient basis in the material provided to support this conclusion. The applicant states that she cannot multi-task, has decreased endurance and fatigues very easily, and will not be able to process the information being provided by both respondents if the Applications are heard together. I do not dispute that the applicant’s disabilities may give rise to needs that require accommodation during the course of the hearing. However, I do not find that there is a sufficient basis to support any significant exacerbation of any such needs that would be caused by hearing these matters together.

11The applicant asserts that she will be further prejudiced if both Applications are heard together as she will be required to disclose personal information to each respondent, which would not otherwise be required. No specific examples of any such personal information are provided by the applicant that she believes would only need to be disclosed to one respondent as opposed to the other. Given the similarity of the facts and issues raised by both Applications and the applicant’s obligation under the Tribunal’s Rules to disclose all arguably relevant documents, it is my view that any relevant personal information would need to be disclosed in both Applications in any event.

12As a result, I confirm and order that these two Applications be processed together.

13Finally, I note that to date the respondents to the Work Able Application have not yet filed their Response. They are directed to do so within 30 days of the date of this decision, and are directed to Rule 3.2 of the Tribunal’s Transitional Rules regarding the consequences of a failure to respond to an Application.

14I am not seized of this matter.