HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Labib Awad
Applicant
-and-
Lazer-Tech Ltd., Douglas Miranda, Rejendra Pariag and Bhesham Prasad
Respondents
Interim Decision
Adjudicator: David Muir
Indexed as: Awad v. Lazer-Tech
[1] This is an Application filed on June 30, 2009 pursuant to section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Decision deals with a Request filed by the applicant on August 29, 2011 to adjourn the hearing scheduled for September 12, 2011. The respondent opposes the adjournment and alleges that in making this Request the applicant has attempted to mislead the Tribunal.
[2] The applicant’s communication to the Tribunal seeking the adjournment was as follows:
Today I received a notice for my surgery schedule on Sept 12. 2011. Due to my schedule (sic) surgery on Sept 12. 2011, I am requesting postpone (sic) my hearing to later date.
3Previously, on or about July 11, 2011 the applicant requested an adjournment of the hearing for 12 months. This request was denied in 2011 HRTO 1379.
[4] In all of the circumstances of this case including the applicant’s pattern of delay and failure to comply in a timely way with the Tribunal’s Rules of Procedure and its Directions, the applicant was directed in a Case Assessment Direction dated August 31, 2011 to provide further information before the Tribunal would consider the Request. In particular, the applicant was directed to deliver and file with the Tribunal within seven days of the date of the Case Assessment Direction confirmation from his physician that a surgery was scheduled to take place on September 12, 2011, as well as an estimate of how long the applicant will require to recover from this surgery.
[5] On September 6, 2011, the applicant provided what he states was a letter from his physician. The letter is on what appears to be the letterhead of Brigham and Women’s Hospital in Boston, Massachusetts. The letter is dated August 31, 2011 and states as follows:
To Whom it May Concern
Mr. Labib Awad is scheduled for a surgery on Friday, Sept. 09th at 7:30 am.
Mr. Awad will be admitted on Thursday Sept 8th, 2011 at 3:00 pm and his recovery period is between 2-4 months.
If I can provide any further information, please do not hesitate to contact me at 617-233-2003.
The letter is signed by a R. Cohn, MD Surgeon
6The respondents state that the hearing should proceed as scheduled on September 12, 2011. The respondents state that the adjournment should be denied because the applicant did not comply with the seven day deadline required by the Tribunal’s directions. They raise a number of other issues with respect to the timing of the surgery that they state do not justify the adjournment of the hearing.
7More significantly, the respondents also state that the letter is not genuine. Amongst the reasons for their questioning its veracity are the following:
a. The statement in the alleged doctor's note that the applicant's alleged surgery is scheduled to take place on September 9, 2011, conflicts with the applicant's initial claim that his surgery is scheduled to take place on September 12, 2011.
b. The alleged doctor's note is from Boston, Massachusetts. The Applicant does not live anywhere near Boston and has provided no explanation as to why it would be necessary for him to travel to Boston for his alleged surgery.
c. The Respondent has attempted to contact the alleged phone number supplied by "R Cohn." That number is out of service.
d. The Respondent has telephoned Brigham and Women's Hospital, which has confirmed that it does not employ any surgeon with the initials R. Cohn.
8The respondents filed the affidivat of Karen I Farinha , dated September 8, 2011 in support of the assertions set out in sub-paragraph 7(c) and (d) above.
9The respondents have raised substantial reason to be concerned that the basis for the adjournment Request and the letter provided by the applicant to support it are not genuine. At this stage, the applicant has not responded to the allegations. However, if the respondents are mistaken then the applicant is in fact in Boston currently for a surgery of some kind.
10In all the circumstances, I find that the most fair just and expeditious manner of proceeding is to cancel the hearing scheduled for September 12, 2011 and schedule an in-person half day hearing for purposes of hearing the applicant’s evidence in support of the adjournment Request. The applicant is directed to provide the respondents’ counsel and file with the Tribunal within 45 days of the date of this Interim Decision: (i) an affidavit from himself indicating the nature of the medical condition for which he states he required surgery, the nature of the surgery, the time and place of his surgery, the name and current contact information of the physician who performed the surgery, the name(s) and current contact information of any physicians he has consulted subsequent to his surgery for follow-up care, if any, and any documentation he has received from the hospital at which he states he underwent surgery in September 2011 (i.e. any invoices); and (ii) a medical report from the physician who perfomed the surgery indicating the location and date that the applicant’s surgery was performed and the estimated recovery period for the surgery. If the applicant does not file this material by the required time the Tribunal will make its decision based only on the information provided to date by the parties or may consider the failure to provide such information as an abandonment of the Application and dismiss the Application for that reason
11The half day hearing will be scheduled by the Tribunal upon receipt of the applicant’s affidavit and medical report. At the half day hearing, the respondents will be afforded an opportunity to cross-examine the applicant on the content of his affidavit and the letter he submitted to the Tribunal on September 6, 2011, and the applicant will be afforded an opportunity to cross-examine the respondent’s affiant, Ms. Farinha.
12The respondents have raised significant concerns with the September 6, 2011 letter that the applicant filed in support of his adjournment Request. At the half day hearing, after hearing the applicant’s evidence the parties should be prepared to make submissions with respect to the bone fides of the Request to adjourn and the genuiness of the letter submitted in support of it. The parties will be expected to speak to the consequences for the further processing of this Application, including whether the Application should proceed or be dismissed as an abuse of process, if the Tribunal finds the allegations of the respondents are substantiated.
DIRECTIONS
13The hearing scheduled for September 12, 2011 is cancelled. Within 45 days of this Interim Decision, the applicant is directed to provide the respondents’ counsel and file with the Tribunal the affidavit and medical report described above in paragraph 10 of this Interim Decision.
14The Tribunal will contact the parties to set a half-day hearing on these issues. The parties will deliver and file any documents they intend to rely upon in respect at the latest 20 days prior to the hearing of this matter.
[15] I am not seized.
Dated at Toronto this 9th day of September, 2011.
”signed by”____________
David Muir
Vice-chair