Achille John Ruffolo v. Focus Assessments Inc. and Jonathan Siegel, 2011 HRTO 763

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Achille John Ruffolo

Applicant

-and-

Focus Assessments Inc. and Jonathan Siegel

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: April 19, 2011

Citation: 2011 HRTO 763

Indexed as: Ruffolo v. Focus Assessments

WRITTEN SUBMISSIONS

Achille John Ruffolo, Applicant ) Self-represented

Focus Assessments Inc. and ) Donald G. Kidd, Counsel

Jonathan Siegel, Respondents )

1This is an Application filed on July 8, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Tribunal has scheduled a summary hearing in the matter, to be held on April 26, 2011. The summary hearing is to be held by conference call although the Tribunal has advised the applicant that he may attend in person if he so wishes.

2The purpose of this Interim Decision is to determine the applicant’s Request, made on April 15, 2011, for a change of venue of the summary hearing, based on an accommodation of a disability.

3It is necessary to review part of the history of the scheduling of this matter, which has also been reviewed in my previous Interim Decision of April 8, 2011, 2011 HRTO 682.

4By Case Assessment Direction dated November 17, 2010, the Tribunal granted the respondents’ Request for summary hearing. The Tribunal directed that the half-day summary hearing be held by teleconference and sent the parties Notice of the Summary Hearing set for February 25, 2011.

5The applicant asked, as an accommodation of a cognitive disability, that the summary hearing be held in person, and was advised by a further Notice dated December 29, 2010 that he could attend the hearing in person at the Tribunal’s Hearing Centre.

6The applicant subsequently advised that he had a doctor’s appointment on the date scheduled for the summary hearing and requested that it be adjourned to another date. The respondents objected to the Request in the absence of any supporting documentation confirming the appointment, and the Tribunal requested that the applicant provide such documentation.

7After the applicant provided a document confirming the appointment, the Tribunal re-scheduled the summary hearing, to April 26, 2011. The Tribunal has also issued additional Case Assessment Directions, which are unnecessary to detail here.

8On March 26, 2011, the applicant requested that the summary hearing be “postponed until my driver’s license is reinstated and my depressive episode is resolved.” He stated that his driver’s license has been suspended as a result of a neurologist’s report. He stated that he is therefore unable to attend the summary hearing and as well, the suspension of the license has triggered a depressive episode that results in an inability to fully participate in the summary hearing. He stated that his appeal of the driver’s license suspension will take at least six weeks.

9The respondents opposed the adjournment. Among other things, they disputed that the loss of the driver’s license would prevent the applicant from travelling to the summary hearing, and pointed out the availability of trains and buses. Based on other correspondence of which they are aware, they also questioned the existence of a depressive episode that prevents the applicant from participating in the summary hearing. The respondents submitted that the Tribunal should not grant an adjournment on the basis of the assertions of a “depressive episode” without a proper and detailed medical report. The respondents submitted that every time this matter is re-scheduled or adjourned, there is a cost to them. They wish to have the matter dealt with as soon as reasonably possible.

10In reply, the applicant stated that he would provide a medical report if the respondents pay for it. Further, he stated that he has Post Traumatic Stress Disorder (“PTSD”) as a result of his motor vehicle accident and being a passenger is very stressful to him.

11In the April 8 Interim Decision, I denied the adjournment, stating that

The hearing will proceed on April 26, 2011 unless the applicant provides medical documentation supporting his assertions that a PTSD prevents him from travelling as a passenger instead of a driver in order to attend the hearing on that date, and that he is experiencing a depressive episode that results in an inability to participate in the summary hearing scheduled for that date. The medical documentation must also address when it is anticipated that the applicant may be able to participate in the summary hearing.

12The applicant has now provided a letter from a psychologist which states, among other things, that he is receiving treatment for several disorders. The letter states that the applicant meets the diagnostic criteria for, among other things “Specific Phobia (Driver and Passenger Types)”. The letter also sets out the applicant’s reports of mood swings, stating that “he has low mood most of the time” and that “when he is feeling depressed, he prefers to stay home and isolate himself from others. He indicated that he feels no desire or motivation to go out of the house and take part in any type of activity.” The letter also sets out the applicant’s report that “it is getting very difficult for him to focus and concentrate for more than [a] few minutes.”

DECISION

13In considering the applicant’s Request, I have regard to the following surrounding context.

14Accessibility is one of the Tribunal’s core values. The Tribunal is committed to providing an inclusive and accessible environment in which all members of the public have equal access to its services and are treated with dignity and respect. See the Tribunal’s Policy on Accessibility and Accommodation. The Tribunal is committed to providing accommodation for needs related to, among other things, disability, unless to do so would cause undue hardship.

15In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal commented on the nature of a Tribunal proceeding, which is relevant to several of the Tribunal’s core values, including fairness:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules.

16In the case before me, the Tribunal agreed to the applicant’s request to attend the summary hearing in person, and advised him on December 29, 2010, that he could attend in person at the Tribunal’s Hearing Centre in Toronto. The applicant requested an adjournment of the date originally scheduled for the summary hearing on the basis of a medical appointment. In making that request, the applicant did not raise any concerns about attending in person in Toronto.

17The Tribunal granted the applicant’s request and the matter was re-scheduled for April 26, by Notice dated February 14. In the Notice, the applicant was again advised that he could attend in person at the Hearing Centre, and he did not raise any concerns at that time about the venue.

18The applicant subsequently requested an adjournment of the April 26 summary hearing on the basis that his driver’s license had been suspended, and on the basis of a depressive episode. In making his Request, he again did not raise any concerns about the venue. He asked that the hearing be postponed “until my drivers license is reinstated.” He suggested he was unable to travel to Toronto by train or bus, as suggested by the respondent, because “being a passenger is very stressful to me.”

19In light of the history of this matter and the various communications from the applicant, I have some scepticism about the present request for accommodation. His requests for adjournments and accommodation have been based on conflicting and changing needs. For instance, although the applicant had previously asked to attend the summary hearing in person, the letter of April 15 suggests that he is largely unable to leave his home. Although he asked to postpone the hearing until his driver’s license was reinstated, the letter of April 15 suggests he is unable to drive, with or without a license.

20The Tribunal wishes to establish a hearing process that takes account of the applicant’s needs for accommodation. However, it must also take account of the respondents’ and the public’s interests in having the matter heard expeditiously and fairly.

21The Tribunal did not require the applicant to file medical evidence in support of his request to attend the summary hearing in person. Subsequent medical evidence filed by the applicant (dated May 7, 2009) supports his need for accommodation in the hearing process arising out of limitations in memory, concentration and organization, as well as fatigue and, on the basis of that evidence, the Tribunal revoked a direction to have seven related files heard together. It is possible to view the limitations as supporting an in-person hearing instead of a conference call but in all the circumstances, given all the information now provided concerning the applicant’s accommodation needs, the Tribunal has determined that accommodation of the applicant’s limitations can be made within the context of a conference call hearing, with respect to a single file only and with an opportunity to provide written submissions in advance of the oral submissions. If it becomes apparent during the summary hearing that the applicant is genuinely unable to participate, the Tribunal will consider the parties’ further submissions at that time.

22The Tribunal therefore directs that the summary hearing proceed by conference call as initially set. The applicant sent an email on April 13, 2011, in which he sets out his position on the Application and states that “the facts are not in dispute.” If he has any additional written submissions to make, he may deliver them to the respondent and the Tribunal by noon on Thursday, April 21, 2011. The purpose of the conference call is to hear any additional oral submissions the parties may wish to make.

23I am not seized of this matter.