HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hermilyn Morris Applicant
-and-
Her Majesty the Queen in the Right of Ontario as represented by the Ministry of Finance and Dianne Lone Respondents
INTERIM DECISION
Adjudicator: Brian Cook Date: April 11, 2011 Citation: 2011 HRTO 684 Indexed as: Morris v. Ontario (Finance)
APPEARANCES
Hermilyn Morris, Applicant ) Ayoob Khan, Representative The Ministry of Finance and Dianne Lone, ) Susan Munn, Counsel Respondents )
1This Application was scheduled for hearing on April 5, 2011. At the hearing, the respondents appeared with counsel. Mr. Khan appeared on behalf of the applicant. The applicant did not appear. Mr. Khan asked that the hearing be adjourned because the applicant was medically unable to attend. The respondents opposed the adjournment request and asked that the Application be dismissed.
2The hearing in this matter was first scheduled for hearing on November 23, 2010. It was adjourned for the reasons set out in Interim Decision 2010 HRTO 2327.
3The applicant subsequently filed a Request for Order During Proceedings seeking to amend the Application to add race, colour and place of origin as grounds of alleged discrimination. The original Application identified only age as a ground. In Interim Decision 2011 HRTO 563, I granted the Request to amend the Application and concluded that any concerns about potential prejudice to the respondents would be dealt with at the hearing.
4The same Interim Decision also dealt with an adjournment request submitted by the applicant. The adjournment request was made on March 11, 2011 and was submitted on the applicant’s behalf by Mr. Khan. The information provided at that time was that the applicant had sustained a broken ankle on February 19, 2011, requiring emergency surgery and a cast. She had been seen on March 9, 2011 and had been advised to keep her ankle elevated. She was to be seen again on April 6, 2011, the day after the scheduled hearing, when the cast was to be removed and a decision made about future treatment.
5I concluded that the information submitted did not explain why the applicant would be unable to participate in the hearing with appropriate accommodation to allow her to elevate her ankle or take breaks as required. The adjournment request was denied in the earlier Interim Decision.
6On Friday April 1, 2011, there was an email exchange between the parties that was copied to the Tribunal Registrar. The exchange indicated that Mr. Khan had attempted to forward to the respondents a copy of a medical report in support of a continuing adjournment request. It did not appear that an adjournment request had been submitted to the Tribunal.
7On the morning of Monday April 4, 2011, the day before the scheduled hearing, the Tribunal Registrar sent an email to the parties confirming that the hearing would proceed as scheduled. Later that day, I was informed that Mr. Khan had in fact forwarded a medical report and a Request for adjournment to the Tribunal on April 1, 2011. However, the Request, sent by fax, was received by the Tribunal at 5:15 p.m., after the close of the Tribunal’s office. By the time the adjournment Request came to my attention, it was not possible to deal with it before the hearing.
8The medical report is from Dr. Terri Weinberg, and is dated April 1, 2011. It reads as follows:
I am the family physician for the above-mentioned patient, who sustained a fractured ankle that required open reduction and fixative in early March. She remains in a below knee cast; but Ms. Morris is not able to sit/stand for extending periods of time. Her leg must be elevated above the level of her heart frequently in the day – hence she will require a postponement of her hearing on April 5, 2011 until the cast has been removed.
9Mr. Khan advised that the applicant was unable to attend the hearing because of her medical condition, and asked that the hearing be adjourned. He apologized for the lateness of the Request and advised that he had only received the medical report at about 4:30 on April 1. He said that the applicant had tried very hard to obtain a report earlier. She was apparently unable to do so because her family doctor first had to obtain records from the surgeon who had treated her ankle injury.
10Mr. Khan initially stated that he had fully prepared for the hearing in the event that the applicant was able to attend. However, he later reported that he had not been able to speak to the applicant at all since March 21, 2011, when the Interim Decision was issued, granting the amendment to the Application and denying the adjournment Request. He advised that the only communication he had with the applicant was a brief email on Friday April 1. He advised that he had spoken to her at the time the Request to amend the Application was submitted.
11I proposed that Mr. Khan telephone the applicant to determine if she could participate in the hearing by telephone. After a break, Mr. Khan reported that he had been unable to reach the applicant by telephone. He surmised that her medical condition could be the reason that she was not available by telephone. Mr. Khan reiterated the adjournment Request.
12On behalf of the respondents, Ms. Munn submitted that the adjournment Request should be denied. She argued that the applicant had not provided any documentation to support her contention that she was unable to obtain medical support for the Request earlier. As well, there was no indication that the applicant had made any effort to explore accommodation that would allow her to participate in the hearing, and was not even available to her own representative by telephone at the time when she knew that a hearing about her Application was underway.
Conclusions on the Adjournment Request
13The information in the medical report regarding the applicant’s restrictions is different than the information initially presented. Initially, the applicant advised that she needed to keep her ankle elevated. This is a common requirement that can easily be accommodated in a hearing room. However, according to the medical report, the applicant is required to elevate her ankle above her heart on a frequent basis. Accommodation of this requirement is somewhat more difficult, and, in addition, I accept that it could be difficult to travel to a hearing. It is regrettable that this information was not brought forward earlier and also unfortunate that the applicant’s representative failed to ensure that his client was available for at least telephone consultation.
14While I have concerns about the conduct of the applicant and her representative, under the circumstances, I am prepared to grant the adjournment. The Tribunal will reschedule the hearing. The next hearing day is peremptory on the applicant.
Dated at Toronto, this 8th day of April, 2011.
”signed by”____________
Brian Cook Vice-chair