Natalina Garofalo v. Cavalier Hair Stylists Shop Inc. and Joseph Finelli, 2011 HRTO 1810

Human Rights Tribunal of Ontario

B E T W E E N:

Natalina Garofalo

Applicant

-and-

Cavalier Hair Stylists Shop Inc. and Joseph Finelli

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 5, 2011

Citation: 2011 HRTO 1810

Indexed as: Garofalo v. Cavalier Hair Stylists Shop

1The purpose of this Interim Decision is to order the individual respondent, Joseph Finelli’s doctor to provide an opinion on the medical fitness of Mr. Finelli to testify at the hearing before this Tribunal.

2The hearing took place on May 17, 18, and 19, and September 19, 20 and 21, 2011. Rule 17 of the Tribunal’s Rules of Procedure requires each party to deliver to every other party and file with the Tribunal a witness list, and a brief statement summarizing the expected evidence of each witness, prior to the hearing. The respondents did not include Mr. Finelli on their witness list and did not call him as a witness at the hearing.

3At the end of the hearing, the applicant’s counsel submitted that the Tribunal should draw an adverse inference from the failure of the respondents to call Mr. Finelli to testify at the hearing. The respondents’ counsel, on the other hand, took the position that Mr. Finelli was unable to testify at the hearing because of his poor health. No supporting medical documentation was filed with the Tribunal, except for a letter from Dr. Todd Overholt, dated September 20, 2011, which stated that Mr. Finelli was in “ER” on September 15, 2011.

4There was some debate between the parties about how long it should or would take Mr. Finelli’s doctor to provide an opinion on his medical fitness to testify at the hearing. Accordingly, I suggested, and the parties agreed, that I should issue an order that Dr. Overholt provide such an opinion within a set period of time.

5The Tribunal therefore orders the following:

a) The parties’ legal counsel shall provide their contact details to Dr. Overholt by no later than one week from the date of this Interim Decision.

b) Mr. Finelli shall provide Dr. Overholt with written consent to disclose medical information about him by no later than one week from the date of this Interim Decision.

c) Dr. Overholt shall deliver to the parties and file with the Tribunal an opinion, with relevant clinical notes attached, on the medical fitness of Mr. Finelli to testify at the hearing before this Tribunal on May 17, 18, and 19, and September 19, 20 and 21, 2011 by no later than two weeks from the date of this Interim Decision.

d) The applicant shall deliver to the respondents and file with the Tribunal her closing submissions/arguments by no later than three weeks from the date of this Interim Decision.

e) The respondents shall deliver to the applicant and file with the Tribunal their closing submissions/arguments by no later than five weeks from the date of this Interim Decision.