Kerr Wattie v. Toronto District School Board, 2011 HRTO 224

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kerr Wattie

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: February 1, 2011

Citation: 2011 HRTO 224

Indexed as: Wattie v. Toronto District School Board

WRITTEN SUBMISSIONS

Kerr Wattie, Applicant ) Cara Wilkie, Counsel

Toronto District School Board, Respondent ) Grant Bowers, Counsel

1This is an Application made under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), dated May 8, 2009. The underlying amended complaint was filed with the Ontario Human Rights Commission (the “Commission”) on July 11, 2007.

2The hearing into this Application commenced, as scheduled, on October 6, 2010, at which time a number of preliminary issues were canvassed and additional hearing dates were set, the first of which is February 7, 2011.

3On January 13, 2011, the respondent filed a Request for Order During Proceedings seeking that the Tribunal direct the applicant to submit to an independent medical examination (an “IME”), specifically “a neurological examination to determine the applicant’s communication abilities”. The respondent seeks to have the matter dealt with in writing or by conference call.

4On January 26, 2011, the Tribunal received the applicant’s response to the Request for Order. The applicant opposes the Request and requests that the matter be dealt with in writing.

5The respondent argues that the medical assessment is necessary because there is no independent assessment of the applicant’s ability to communicate and that is a central area of disagreement between the parties. The respondent also suggests that the neurological assessment will be useful “to the parties” in determining whether the measures put in place to accommodate the applicant while he is giving evidence at the hearing are appropriate, whether he is capable of giving evidence in accordance with the detailed will say statement or provide meaningful responses when questioned during the hearing.

6The applicant argues that the Tribunal lacks jurisdiction to make the requested Order. In the alternative, he argues that if the Tribunal has jurisdiction the Request ought to be denied as there is no probative value to a neurological examination given the other evidence already before it that speaks to the applicant’s ability to communicate, the examination would undermine the applicant’s health, privacy and dignity interests and that it would lead to additional delay.

7Having considered the materials submitted by the parties, the Request is denied for the following reasons.

8I disagree with the applicant’s position regarding the Tribunal’s jurisdiction to make an Order of the kind sought by the respondent. The applicant argues that there is no specific authority in the Code permitting the Tribunal to make such an order, that no order of this kind has ever been made by the Ontario or federal Tribunals and points me to the decision of the Board of Inquiry in Davis v. Toronto (City), 2005 HRTO 7.

9The Code and the Tribunal’s Rules provide that the Tribunal may adopt procedures and practices which offer the best opportunity for a fair, just and expeditious resolution of the merits of an Application. Those provisions do not preclude the possibility that under some circumstances an order such as the one sought by the respondent in this case may be granted by the Tribunal.

10The Tribunal considered this issue in Persaud v. Toronto District School Board, 2008 HRTO 12 where the Tribunal held as follows:

All parties make reference to the decision of this Tribunal in Davis v. Toronto (City), [2005] O.H.R.T.D. No. 7, 2005 HRTO 7, in which it was held that this Tribunal does not have jurisdiction to require a complainant to submit to a medical examination due to a lack of express statutory authority to do so. In dealing with the respondents’ request, I do not find it necessary to rely on this aspect of the Davis decision.

Even if this Tribunal does have implied jurisdiction to make such an order (as do labour arbitrators who often deal with issues of discrimination, as noted by the respondents), I agree with the decisions of human rights tribunals in other jurisdictions that such an order should be made only in the clearest of circumstances: see Cucek v. British Columbia (Ministry of Children and Family Development) (No. 1) (2003), 47 C.H.R.R. D/245, 2003 BCHRT 44; and Rogers v. Deckx Ltd. (No. 2) (2002), CHRR Doc. 02-096 (C.H.R.T.).

I adopt the following observations made by the Tribunal in the Cucek case:

The act of compelling an individual to undergo a medical examination is inherently coercive. Even assuming the Tribunal had the authority to make such an order, I would be hesitant to do so unless it were abundantly clear that the evidence sought is critical to a determination of the matter, and cannot be obtained in a less intrusive manner. That is not the case here.

11I am not persuaded that the circumstances in this Application, at this point in the proceeding, fall within the category of the “clearest of cases” and, therefore, warrant granting the respondent’s Request.

12Following the hearing on October 6, 2010, an Interim Order was made, on consent, to have the hearing into this Application bifurcated. The purpose of the first portion of the hearing is to determine the question of whether a breach of the Code occurred.

13The applicant alleges that he experienced discrimination during the time he was enrolled in Sir William Osler High School, from 1999 through 2005. The respondent denies it breached the Code. Even if I accept that a neurological examination will provide relevant information about the applicant’s ability to communicate, which the applicant disputes, a medical report describing the applicant’s neurological condition in 2011 is not likely to be relevant to deciding whether the applicant experienced discrimination in receipt of services as a result of his disability from 1999 through 2005.

14The respondent’s other argument for seeking the IME relates to the accommodation measures sought by the applicant and the issue of the reliability of the applicant’s evidence.

15In my previous Interim Decision, 2010 HRTO 2087, I ruled that while I would permit the applicant to give his evidence through the communication assistant of his choice, I would reserve my decision on the admissibility, reliability and weight to be given to the evidence obtained with the assistance of that communication assistant and would hear submissions from the parties at the appropriate time.

16A number of measures have been put in place to allow the respondent to test the evidence to be given by the applicant. For example, the respondent has provided the Tribunal with a list of questions to be put to the applicant in cross examination; that list has not been sent to the applicant. The Tribunal has ruled that the list can be added to if required. The questions will include an inquiry as to how the witness statement was prepared. The parties will also have an opportunity to question the communication assistant before and, if necessary, after the applicant gives his testimony with her assistance.

17Given all of the above, in my view, an order requiring the applicant to submit to a neurological examination is not necessary to determine the question of admissibility, reliability and weight to be given to the evidence to be given by him during the hearing scheduled to resume in one week’s time.

18For the reasons given, the respondent’s Request for Order During Proceedings is denied.