HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jacques Perron
Complainant
-and-
Yvonne Monto
Respondent
INTERIM decision
Adjudicator: Mary Anne McKellar
Indexed as: Perron v. Monto
_________________________________________________________________________________________________________
wRITTEN SUBMISSIONS
Jacques Perron, Applicant ) Self-represented
Yvonne Monto, Respondent ) Jeff Rooney, ) Representative
1This is a complaint by Jacques Perron (the “applicant”) that the respondent Yvonne Monto contravened his rights under the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”). Initially the applicant had advanced complaints of Code violations against a number of other respondents, but those matters have all been dismissed. See 2010 HRTO 1411.
2The parties were employed by the same employer, and the applicant occupied a supervisory position with respect to the respondent. She complained of harassment and poisoned work environment, implicating the applicant. Her grievance with respect to those issues was successful.
3The applicant filed his complaint with respect to the respondent in December 2004, shortly after she had complained of his behaviour referred to in the preceding paragraph.
4This matter was referred to the Tribunal by the Ontario Human Rights Commission (“the Commission”) on December 22, 2008. The Tribunal processed the file in the normal course, including attempts to resolve it by mediation. It was assigned to me for adjudication.
5I convened a conference call on November 25, 2010. In the course of that conference call a number of things were discussed, and they were reduced to writing and forwarded to the parties in a memorandum dated December 6, 2010.
6Among other things, the Commission was permitted, on consent of all the parties, to withdraw from the proceeding. Additionally, the memorandum noted that the respondent had not abandoned, but had agreed to set aside for the moment, certain preliminary motions, namely that the complaint should be dismissed as frivolous or vexatious and/or untimely.
7The memorandum identified the issues to be addressed at hearing as the following:
The purpose of the hearing will be to inquire into the factual issue of whether the respondent Monto revealed the sexual orientation of the applicant, as he has alleged in his complaint, and which she has denied. The legal issue to be addressed is whether, should Monto be found to have made such revelation, it constituted a contravention of the Code.
For clarity, there will be no inquiry into: the respondent Monto’s complaints about the applicant, which have been determined by arbitrator Keller; the applicant’s complaints against Monto’s union, its agents, the School Board, and its agents, as those have all been dismissed by the Tribunal. No issue of remedy will be addressed at the April 15, 2011 hearing.
8During the conference call, it was agreed that this matter would be set down for one day of hearing. I provided the parties with my available hearing dates. At the request of the applicant, the last available date, April 15, 2011, was set for the hearing. There was some discussion with respect to the hearing location and associated travel costs. There was no suggestion that the applicant was medically unable to travel or to attend a hearing. This discussion is addressed in the memorandum as follows:
- The respondent Monto has requested that the hearing occur in Thunder Bay, which is the closest regional centre to the common place of employment of the two parties at the time the complaint was filed. The applicant now lives in Toronto and would prefer that the hearing be held in Toronto. For the time being it is scheduled in Thunder Bay. Subsequent to the filing of witness statements on March 4, 2011, the applicant may request a change of hearing venue to Toronto, but must support such request with detailed reasons as to why the balance of convenience to all the parties and the witnesses favour such change of venue. Each party must bear his or her own costs of attending the hearing and the costs of securing the attendance of any witnesses at such hearing.
9On the agreement of the parties, the deadline for exchanging certain materials prior to the hearing was set for March 4, 2011. The materials to be exchanged were set out as follows in the memorandum that issued to the parties:
- By no later than March 4, 2011, the parties will exchange with each other and file with the Tribunal, the following:
a. A list of witnesses each anticipates calling to address the issue identified in paragraph 2 above;
b. For each of the applicant’s witnesses, a brief statement outlining the basis of the witness’ knowledge of the facts about which he or she will be testifying, and a summary of what the witness is expected to say about whether, when, and the circumstances in which it is alleged that Monto revealed his sexual orientation;
c. For each of Monto’s witnesses, a brief statement outlining the basis of each witness’ knowledge of what transpired on the specific occasions identified in the complaint in which it is alleged that Monto revealed or discussed the applicant’s sexual orientation; and
d. Specific identification (i.e date, author, addressee) of any documents already filed with the Tribunal which will be relied on at the hearing into the issue identified in Paragraph 2 above, including which party may have filed it and when. Alternatively, the parties may simply file a fresh copy of any document they will rely on at the hearing. Only the documents so identified or freshly filed will be placed in the adjudicator’s hearing file and brought to the hearing, where they will be subject to the normal evidentiary rules respecting identification and admissibility. The balance of the contents of the several boxes of documents in the Tribunal’s possession will remain with the Tribunal but will not be available for review at the time of the hearing.
10Shortly before the March 4, 2011 deadline, on or about February 22, 2011, the applicant wrote to the Tribunal seeking “for medical reasons” to have an extension of time for completing his filings and seeking to have the hearing adjourned. He did not indicate the magnitude of extension sought, or the period of adjournment anticipated. The Request was not supported by any medical documentation.
11Case Assessment Directions (“CADs”) with respect to these Requests were issued by the Tribunal on February 25, 2011 (directing the filing of further medical documentation) and on March 3, 2011 (granting an extension for filing materials until March 14, 2011, but declining to adjourn the hearing). The March 3, 2011 CAD describes the documentation the applicant had submitted from two different physicians. It found that documentation provided inadequate justification to adjourn the hearing or to postpone indefinitely the filing requirements.
12The respondent complied with the extended filing deadline of March 14, 2011. The applicant did not, nor did he seek any further extension of it. Instead, on March 7, 2011, the applicant filed further medical documentation with the Tribunal. Two documents were filed. Both have been completed by the same physician. One is an overall assessment of the applicant’s general health as of February 28, 2011, including identification of prescribed medications, and an indication that he suffers from anxiety and depression. The same physician who completed the overall assessment also furnished a medical note, the text of which follows:
[Jacques Perron] is my patient. He is unable to attend the hearings of March 4, 2011 or April 15, 2011, due to his medical condition. Mr. Perron suffers from Depression and Anxiety symptoms including low mood, poor concentration, insomnia and anxiety. These symptoms have made it difficult to function on a daily basis and to travel to Thunder Bay. I support his request to not attend these hearings on medical grounds.
13First of all, there was never any hearing scheduled for March 4, 2011, and in any event that date had passed by the time the note was provided to the Tribunal. The note does not say the applicant is incapable of corresponding with the Tribunal and filing the materials required of him, and I note that he has in fact corresponded with the Tribunal and the respondent’s representative on several occasions since February 22, 2011.
14Additionally, the applicant’s initial Request was for an extension of time in which to file his materials and cited the fact that he was scheduled for a biopsy on March 4, 2011, but did not say he was otherwise incapable of complying with the filing requirements. I conclude, therefore, that the applicant, while being capable of filing his materials, has chosen not to do so.
15Insofar as the renewed Request for an adjournment is concerned, I am troubled by the fact that none of the documentation suggests that the applicant is suffering from an acute medical crisis that requires a temporary adjournment of these proceedings. Rather, the overall assessment appears to suggest that his condition is chronic and that a hearing at any time will be too stressful for him. Certainly this is the impression left by the accompanying doctor’s note. The documentation does not provide any information whatsoever about what kind of accommodative measures might permit the hearing to proceed.
16I am not prepared to adjourn this matter indefinitely. It is unfair to the responding party to do so. She has been dealing with this matter for 6½ years already. Most persons who make complaints under the Code want to have them dealt with and remedied promptly. The circumstances in which this complaint was made and the applicant’s conduct in choosing the latest possible hearing date, making an eleventh-hour request for a filing extension and adjournment, and then failing to comply with the extended deadline, suggests that he has no interest in having this matter adjudicated at all.
17On the other hand, a hearing that is fair to the respondent cannot occur unless she is apprised in advance of the documents and anticipated testimony on which the applicant relies to establish a contravention of the Code. His conduct in failing to provide that information appears to be a tactic to secure an adjournment.
18In the circumstances, the applicant is directed to send to the Tribunal and to the respondent’s representative by no later than April 1, 2011 the following:
(a) his list of witnesses, witness statements and documents relied on as described in paragraph 5(a), (b) and (d) of the December 6, 2010 memorandum;
(b) further medical information setting out what kinds of accommodations (for example, a shorter hearing day or more frequent breaks) would enable his participation at the April 15, 2011 hearing; or
(c) in the event it is the physician’s view that there are no accommodative measures that would permit the applicant to participate in the April 15, 2011 hearing, the physician’s estimate as to when the applicant might be expected to be able to participate with appropriate accommodation, and what those accommodative measures would be.
19The applicant is advised that if he fails to comply in a timely manner with the direction in Paragraph 18(a), he will not be able to rely on facts or introduce evidence (i.e. call witnesses) or documents, except with leave of the Tribunal. Whether such leave is granted will take into account (and usually turns primarily on) the prejudice that would be occasioned to the opposing party by granting the leave.
20I note that the respondent’s representative has complained to the Tribunal about both the substance and the tone of applicant’s comments about him. I am not inclined to make any specific directions with respect to this issue. It is sufficient to remind the applicant that he is expected to treat the other party and its representative and the Tribunal with respect and courtesy.
21Any determination with respect to whether the hearing scheduled for April 15, 2011 will proceed or be adjourned will be made following receipt of the submissions as directed above.
22I am seized of this matter.
Dated at Toronto, this 28th day of March, 2011.
”signed by”___________
Mary Anne Mckellar
Vice-chair