Lemieux v. Guelph General Hospital, 2011 HRTO 183

Human Rights Tribunal of Ontario

Between: Lydia Lemieux (Applicant) -and- Guelph General Hospital, Audrey Henderson, Annette Harrington and Kaye Snowe (Respondents)

Interim Decision

Adjudicator: David Muir Date: January 25, 2011 Citation: 2011 HRTO 183 Indexed as: Lemieux v. Guelph General Hospital

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), dated June 29, 2009. This Decision deals with a number of procedural matters, including a Request for Order During Proceeding seeking the addition of a party; a Request that the hearing date of January 26, 2011 be adjourned; and other matters.

Request for an Order during Proceeding

2The applicant filed a Request for Order During Proceeding ("Request") on January 7, 2011. The Request seeks the addition of the WSIB as a party to this proceeding "if the Tribunal is not willing to defer the Application". By correspondence dated January 10, 2011, the Tribunal directed that the respondent and the WSIB need not respond to the Request unless directed to do so.

3The underlying human rights complaint (the "complaint") was filed with the Ontario Human Rights Commission (the "Commission") on July 3, 2007. In the complaint, the applicant alleged that her right to be free from discrimination in employment on the basis of a disability was infringed by the respondent. In her complaint the applicant made the following particular allegations:

a. The applicant alleges that she was suddenly and unjustly terminated on January 19, 2007. The applicant alleges that the reason given was that her attendance had not met the respondent employer's expectation. It is also alleged that the respondent employer stated that she was on probation at the time.

b. The applicant alleges that she had completed her probationary period and that the only time attendance was raised with her was at the meeting where she was terminated. The applicant alleges that she missed work only due to illness and due to a work-related injury for which the applicant received WSIA benefits.

c. The applicant alleges that in 2006 when she was performing modified work, the respondent Henderson often directed her to perform tasks inconsistent with her restrictions at the time. The applicant also alleges that Henderson gave wrong information about her to the WSIB, her family doctor and chiropractor and gave her a Functional Abilities Evaluation Form but called it an Absence Form. The applicant alleges that this caused her difficulties with a WSIA claim for a period of absence. The applicant alleged that the respondent employer appealed her claim to WSIA benefits for the period.

d. The applicant alleges that she missed nine days of work due to illness in 2006 and three days in 2007. The applicant alleges that the three days in 2007 were due to her contracting gastroenteritis in the hospital and she has filed a WSIA claim for that illness which is still in dispute. The applicant alleges that she did not exceed the 10 days of job-protected emergency leave provided under the Employment Standards Act.

4The applicant states that the reasons for the Request to add the WSIB are that the WSIA proceedings are not completed and the applicant alleges that the respondents' conduct in those proceedings is a cause of that delay.

5The Request to add the WSIB as a party is denied. The applicant's suggestion that the WSIB must be added as a party unless the Application is deferred is puzzling. The Tribunal of its own motion raised the issue of deferral of this Application in light of the pending WSIA proceedings. Both the respondents and the applicant took the position that deferral was not appropriate, and in a Case Assessment Direction dated December 16, 2010, I concurred and no such Order was issued. Given the parties' positions that deferral was not appropriate although for slightly different reasons it is not clear why not deferring this Application requires that the WSIB be made a party.

6There is one allegation made in this Application with respect to the respondent giving false or incorrect information with respect to a WSIA claim made by the applicant and that claim remains in dispute; however, I do not understand how the alleged conduct of the respondent in respect of a WSIA claim requires that the WSIB be made a party to this proceeding.

7The Request to add the WSIB as a party is rejected.

Request to Quash a Summons

8The Tribunal is in receipt of correspondence from counsel for a potential witness who has been served a summons to appear at the hearing tomorrow, January 26, 2011. The witness in question, Dr. Thomson, is a family physician who has treated the applicant in the past. The summons which has been served on Dr. Thomson also requires her to bring a number of documents to the hearing. In addition to the clinical notes and records of her treatment of the applicant, the summons requires Dr. Thomson to bring the records of several other physicians, other medical facilities, walk-in clinics and hospitals that the applicant may have attended from August 2006.

9It also appears despite prior Directions of the Tribunal that the applicant has served summonses on all of her proposed witnesses although most of them will not be heard by the Tribunal in the first phase of the hearing.

10Dr. Thomson seeks to quash the summons on a number of bases. Dr. Thomson states that the summons was served late. Dr. Thomson practices with four other physicians and all are scheduled to be away tomorrow, with the result that Dr. Thomson is the only physician available to cover their practice. Dr. Thomson states if she attends the hearing tomorrow, she will be unavailable to deal with urgent matters and to attend to her many scheduled appointments.

11Dr. Thomson also states that she is unwell with bronchitis which will make her need to speak tomorrow difficult and potentially harmful to her health. Finally, Dr. Thomson states that the requirement of the summons that she bring materials which are not in her possession and over which she has no control and cannot bring to the hearing is too broad and an abuse of process.

12As has been indicated in several Case Assessment Directions ("CADs") issued by the Tribunal, there are a number of unresolved issues with respect to the arguable relevance of the evidence of most of the applicant's proposed witnesses. In a CAD dated January 10, 2011, I directed that the most fair, just and expeditious manner of proceeding was to bifurcate the hearing of this Application, dealing first with whether the allegations set out in the human rights complaint forming the subject matter of this Application established a violation of the Code. If a violation of the Code was established by the applicant, then the Tribunal would go on to consider the appropriate remedy.

13Given this manner of proceeding it appeared, based on the summaries of expected evidence provided by the applicant, that many of the applicant's proposed witnesses did not appear to have arguably relevant evidence to provide in the first phase of the hearing and accordingly, with the exception of Dr. Thomson and another witness identified as J. Beckett, an employee of Trellis, it did not appear that any of the other witnesses of the applicant were necessary for the first phase of the hearing. As regards Dr. Thomson and J. Beckett, although it was clear that much of their evidence related only to potential remedy should a violation be found, it did appear at least possible that they might have evidence relevant to the first phase of the hearing.

14In order to ensure the fair, just and expeditious adjudication of this matter and as well to ensure that the applicant was not put to unnecessary expense summoning witnesses who would not be heard because they had no evidence related to this issues to be determined, the applicant was directed to provide further information with respect to the expected evidence of her proposed witnesses. Because the applicant was apparently not receiving the various CADs in a timely manner the applicant was given to the end of the day Monday January 24, 2011 to provide this further detail.

15In response the applicant wrote to the Tribunal on January 24 to advise that she could not provide further detail of her proposed witnesses' testimony because none of them had contacted her. The applicant also states that because the Tribunal did not send her the 13 summonses she requested in a timely manner she has been unable to serve them on her witnesses in accordance with the rules governing service of summonses. The applicant further states that it would be unfair to be required to attend the hearing without her witnesses.

16The summons to attend served on Dr. Thomson is stayed. It is not at all clear that she has arguably relevant evidence to give at this stage and little purpose would be served in her being required to attend until that issue is resolved. Similar considerations apply with respect to most of the applicant's other proposed witnesses, in particular the other physicians she has identified. These summonses, if they have been served, are stayed as well. The applicant is directed to make efforts to communicate to all of those whom she has summonsed that they need not attend the hearing until further advised.

Request to Adjourn the Hearing

17As regards the applicant's request for an adjournment of the hearing, I am not satisfied that it is necessary to the fair, just and expeditious resolution of this Application that the hearing day be foregone. In concluding that an adjournment is not appropriate, I have considered that there remains a dispute that one or more of the applicant's proposed witnesses may have some evidence to give in the first phase of the hearing. On the other hand they might not. It is clear that most of the applicant's witnesses need not be heard from in the first phase of the hearing. In any case, given the nature of the issues in dispute, the most important witness for the applicant is the applicant herself. There is no reason why the applicant is not able to give her evidence tomorrow. Moreover, it is not unfair to the applicant to proceed with the hearing only because she was not able to summons a number of witnesses who are not going to be heard from in the first phase of the hearing.

18In this regard, given that at the heart of this dispute is the termination of the applicant, it also may be appropriate for the respondents to lead their evidence on that point first as is often done in these kinds of cases. The parties should be prepared to address this issue at the outset of the hearing.

19The outstanding procedural issues can also be addressed at the hearing if time permits. I have considered the considerable difficulty that there has been in communicating the Tribunal's Directions to the applicant in a timely manner and have concluded that the most efficient manner of dealing with these issues is at the hearing. I have also considered that the respondents have indicated that they intend to call five or six witness, so that while it is possible that the hearing could be concluded in one day, it is not a certainty that it would.

20For all of these reasons, the adjournment request is denied.

Orders

21The Request to adjourn is denied for the reasons set out above. The parties will attend prepared to lead their evidence. As indicated, the parties should be prepared to address the question of who should lead their evidence first. The applicant should also be available to give her evidence. The parties will also be prepared to discuss the outstanding issues in particular whether the applicant has any further arguably relevant evidence with respect to the first phase of the hearing, i.e. Dr. Thomson and J. Beckett. The parties will also be prepared to set a further date for the continuation of the hearing if that is necessary.

22The summons to witness served on Dr. Thomson is stayed and she need not attend the hearing on January 26, 2011. The other summonses, if served by the applicant, are stayed as well. The applicant is directed to make efforts to communicate to all of those whom she has summonsed that they need not attend the hearing until further advised.

23I am seized of this Application.