Wilson v. Work Able Centres, 2011 HRTO 358

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Wilson

Applicant

-and-

Work Able Centres Inc. and Louise Korhonen

Respondents

A N D B E T W E E N:

Julie Wilson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Finance (Financial Services Commission of Ontario)

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: February 18, 2011

Citation: 2011 HRTO 358

Indexed as: Wilson v. Work Able Centres

WRITTEN SUBMISSIONS

Julie Wilson, Applicant ) Self-represented

Work Able Centres Inc. and ) Thomas Stefanik, Counsel Louise Korhonen, Respondents )

Her Majesty the Queen in Right of ) Ontario as represented by the Minister ) Larissa Easson, Counsel of Finance (Financial Services ) Commission of Ontario), Respondent )

1These are two Applications filed June 30, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint underlying the Application against Work Able Centres Inc. (“Work Able”) and Louise Korhonen was filed with the Ontario Human Rights Commission on November 8, 2005, and the complaint underlying the Application against the Financial Services Commission of Ontario (“FSCO”) was filed with the Commission on February 28, 2006.

2The Applications relate to the requirement for the applicant to attend at the Work Able location in Barrie, Ontario for an assessment. The applicant alleges that Work Able and Ms. Korhonen discriminated against her on the basis of disability by refusing to permit her facilitator to attend the examination with her, and that FSCO failed to take appropriate steps to respond to this alleged denial of accommodation.

3The purpose of this Interim Decision is to address the applicant’s request for accommodation by a change in venue for the hearing from Toronto to Sudbury, and for other accommodations regarding the hearing scheduled for April 19, 2011.

The Applicant’s Request for Change of Venue

4By letter dated October 13, 2010, the applicant wrote to the Tribunal to request that the hearing take place in Sudbury, Ontario as an accommodation of her disabilities, as she states that travelling is very exhausting for her and interferes with her rehabilitation schedule.

5On October 18, 2010, the Tribunal sent a letter to the applicant which states as follows:

At present, the Tribunal does not have any medical evidence to support the applicant’s request for accommodation. Within 30 days of the date of this letter, the applicant is requested to submit to the Tribunal and provide to the respondents medical evidence from a qualified medical practitioner to support her request for the accommodation outlined in her letter.

6On November 11, 2010, the applicant filed material including a letter from her treating physician dated November 1, 2010. The doctor’s letter did not address the applicant’s request that the hearing in this matter take place in Sudbury. The doctor’s letter did, however, state that due to the applicant’s disabilities, she is not medically able to participate in a hearing for any period longer than two hours, as well as requiring breaks and not participating on consecutive hearing days.

7By Case Assessment Direction dated November 30, 2010, the Tribunal stated that it was cognizant of the applicant’s disabilities and did not wish to deny an accommodation, if required, on the basis of what may be an omission on the part of the applicant’s doctor. Accordingly, the Tribunal afforded the applicant one final opportunity to provide medical evidence to the Tribunal to support that she is unable due to her disabilities to travel to Toronto for the hearing and that her disabilities require that the hearing be conducted in Sudbury.

8On January 14, 2011, the applicant submitted a further letter dated December 13, 2010 from her treating physician. This letter states that due to the numerous injuries sustained by the applicant, she has very limited endurance and stamina for prolonged activity, particularly activity that requires sustained attention to detail. He states that these activities will exacerbate her condition and increase her fatigue, and as such she is unable to travel on the day of her hearing. This would require her at a minimum to travel to Toronto the day prior to her hearing and not leave until the day after her hearing. The doctor states that the travel itself can be aggravating to her condition and thus she feels she may be fatigued during her hearing, and thus not be able to put her best foot forward. The doctor expresses the view that the travel would exacerbate the applicant’s symptoms, thus making it difficult for her to represent herself. As well, he states that the three or more days required to travel would interfere with her regimented rehabilitation schedule that has been filled with her multiple therapists for her ongoing symptoms and injuries. As a result, the doctor recommends that the hearing be relocated to Sudbury, if this is at all possible, in order not to interrupt her rehabilitation, not fatigue the applicant due to travel, and enable her to represent herself much more appropriately at the hearing.

9The letter from the applicant’s treating physician was not provided to the respondents, as the applicant objected to the disclosure of this letter to the other parties. It is not the Tribunal’s general practice to require that medical reports in support of a party’s request for accommodation before this Tribunal be disclosed to the other parties, and the Tribunal did not believe that it was necessary to depart from this general practice in this instance. The Tribunal did, however, share with the respondents the substance of the letter from the applicant’s treating physician and invited their submissions in response.

10The respondents generally express concern about the cost and logisitical requirments of attending a hearing in Sudbury, including the cost of having their witnesses attend in that venue. In my view, at least with regard to the respondents’ witnesses, this concern can readily be addressed by arranging for the respondents’ witnesses to testify by telephone, rather than requiring them to travel to Sudbury to testify. As I state below, the facts at issue in this proceeding are not terribly complex and I do not believe that any real prejudice would be caused to the Tribunal or the parties if the respondents’ witnesses testified by phone.

11Counsel for the Work Able respondents submits that, given the airline schedules, the applicant could fly down for the hearing on April 18, 2011 in the afternoon, attend the hearing on the morning of April 19, 2011, and then fly back to Sudbury that afternoon, thereby minimizing interference with her rehabilitation schedule. While this may be a possibility, I am not prepared to interfere with the assessment of the applicant’s treating physician that travel itself is aggravating to the applicant’s condition and fatiguing for her. In such circumstances, in my view, it is more appropriate to accommodate the applicant’s needs by changing the venue than to risk aggravating her condition or impairing her ability to effectively participate in the hearing.

12Accordingly, the venue for the hearing in this matter is changed to Sudbury. The parties will be notified of the precise location for the hearing in the near future.

The Applicant’s Request for Accommodation re Conduct of Hearing

13As stated above, the applicant has provided medical documentation that indicates that due to her disabilities, she is not medically able to participate in a hearing for any period longer than two hours, as well as requiring breaks and not participating on consecutive hearing days.

14As proceeding with the hearing in such a manner would have implications for all parties, the Case Assessment Direction dated November 30, 2010 first proposed how the hearing might be conducted if such accommodation request were to be granted by the Tribunal, and invited submissions from all parties in response. The Tribunal indicated that it would consider the parties’ submissions before deciding whether to grant the accommodation request and prior to making a final determination as to how the hearing will be conducted.

15The Tribunal’s Case Assessment Direction set out the following proposal for how the hearing on April 19, 2011 may be conducted, if the hearing was limited to two hours in length:

a) The hearing on April 19, 2011 would be limited to two hours commencing at 10:00 a.m. and continuing until noon.

b) The hearing would be bifurcated (separated) so that the only issue to be determined at the April 19 hearing would be whether or not there has been a violation of the Code. The issue of remedy would be determined at a later date and only if a violation of the Code is found.

c) By no later than March 16, 2011, the applicant would serve and file a complete written statement of all of her evidence relevant to the issue of whether there was a violation of the Code. If the applicant intends to rely upon the evidence of any other witnesses, she would also by that date serve and file a complete written statement of all of the evidence of each witness. By that date, the applicant also would serve and file a list of any documents she intends to rely upon at the hearing, and would file with the Tribunal a copy of any documents not already filed.

d) By no later than March 30, 2011, the respondents would serve and file complete written statements of all of the evidence of each of their witnesses, and also would serve and file a list of any documents they intend to rely upon at the hearing, and would file with the Tribunal a copy of any documents not already filed.

e) The foregoing requirements would stand in place of the obligation under the Rules to file witness statements and documents 20 days prior to the hearing.

f) The Tribunal would not require opening statements from the parties at the hearing on April 19, 2011.

g) In lieu of examination-in-chief, the Tribunal would simply have the witnesses affirm the truth of the content of their written statements and proceed directly with cross-examination.

h) Cross-examination of the applicant would be limited to 45 minutes to be shared by counsel for both respondents. Time limits for the cross-examination of other witnesses would be set by the Tribunal following receipt of the detailed statements.

i) The parties would be afforded the option of making oral submissions or filing their final submissions in writing.

16The Case Assessment Direction stated that, if this proposal were adopted, it was anticipated that the hearing day on April 19, 2011, would primarily deal with cross-examination of witnesses. I expressed my view that this should provide sufficient time at the very least to complete the evidence in this matter, as this is not a case where a significant amount of oral evidence is required. The basic facts are largely not in dispute. Rather, the factual inquiry in this case will relate more to the question of the extent to which the applicant’s request to be accompanied by her facilitator is a need arising out of her disabilities, as opposed to a preference or desire, and the extent to which the applicant’s needs were appropriately addressed by Work Able. Much of the evidence is already set out in correspondence exchanged by the parties. I expressed my view that the role and responsibility of FSCO in this matter will largely be determined on the basis of written communications between the parties and legal submissions, and is unlikely to require a significant amount of oral evidence.

17None of the parties raised any significant objection to the proposed manner of conducting the hearing. Counsel for FSCO expressed concern that she anticipated calling evidence from three witnesses, and accordingly did not expect that we would be able to complete all cross-examinations within the two-hour timeframe. As a result, counsel requested that an additional date for continuation of the hearing be scheduled as soon as possible.

18It may or may not be that an additional hearing day is required. I will be in a better position to make that assessment after the statements of evidence from FSCO’s witnesses are filed on March 30, 2011. However, at this stage, it is hard for me to understand what witness evidence FSCO will really need to provide in this matter, besides confirming what is already stated in correspondence and documents. If there is any cross-examination at all on FSCO’s witness statements, I would expect it to be very limited. Accordingly, I am not as pessimistic as FSCO counsel about our ability to complete the hearing of evidence on April 19, 2011 within the two-hour period.

19Accordingly, the proposed manner for conducting the hearing as set out above is now confirmed, with the addition that the respondents may choose to have their witnesses available to testify by telephone on the morning of April 19, 2011, rather than attending in person at the hearing in Sudbury.

20The respondents also have raised the question of whether the applicant will be attending the hearing with a representative or assistant, and if so, what the nature of that representation or assistance will be. The respondents request that the applicant be required to inform the Tribunal and the other parties who will attend with her at the hearing and specify the nature of any assistance to be provided, if any, and in particular if it is intended that an assistant will speak for her. The respondents are concerned that any such assistance or representation be known well in advance of the hearing, so that any issues arising therefrom may be addressed in advance and not take time away from the two-hour period allocated to hear evidence.

21I agree, particularly in light of the limited time that we will have available to hear evidence on April 19, 2011. I do not want any issues that can be addressed in advance to take away from the time allocated on that day to hear cross-examinations. Accordingly, if the applicant intends to attend the April 19, 2011 hearing with a representative or assistant, she shall advise the Tribunal and the respondents by March 16, 2011, including a description of the nature of what representation or assistance will be provided and in particular if it is intended that an assistant will speak for her. If the applicant intends to be represented by a lawyer or licensed paralegal at the hearing, the applicant shall ensure that the identified legal representative gets on the record in this matter by no later than March 16, 2011.