Human Rights Tribunal of Ontario
B E T W E E N:
Marilyn Walkinshaw Applicant
-and-
Complex Services Inc. Respondent
Interim Decision
Adjudicator: Lorne Slotnick Date: April 21, 2011 Citation: 2011 HRTO 808 Indexed as: Walkinshaw v. Complex Services Inc.
1This Application was filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The underlying complaint is dated August 25, 2005, and claims discrimination in employment on the basis of disability. The Case Resolution Conference (hearing) is scheduled for May 2, 2011.
2By letter dated April 12, 2011 the applicant's counsel listed his witnesses. They included a chartered accountant and also a structured settlement consultant, both of whom would give evidence regarding the losses the applicant would incur by not receiving benefits under the respondent's long-term disability plan. The applicant proposes that the accountant give evidence regarding losses from the date of termination in 2005 to the present, while the structured settlement consultant would give evidence regarding the applicant's losses from present to age 65, nearly 20 years from now.
3The respondent objects to this evidence. It relies on Rule 5.15 of the Tribunal's Rules of Procedure for Transitional Applications under Sections 53(3) and 53 (5) of the Human Rights Code, which reads as follows:
5.15 In a section 53(3) Application, the Tribunal will not ordinarily permit the introduction of expert evidence other than medical reports, requests to add parties, requests to consolidate Applications or requests to intervene unless exceptional circumstances exist and doing so will not adversely affect the highly expeditious nature of the case resolution conference.
4The respondent states that there are no exceptional circumstances that would justify this expert evidence in this proceeding, and furthermore that the introduction of such evidence will adversely affect the expeditious nature of the hearing.
5In my view, the proposed evidence is at the very least premature. For this evidence to be potentially useful, the Tribunal would first have to find a violation of the Code, but it would also have to order as part of the remedy compensation equal to the allegedly lost long-term disability payments. Furthermore, if such a remedy was ordered, the evidence of the structured settlement consultant would be relevant only if the remedy was ordered into the future. Finally, none of this evidence would be of any use if the parties were able to agree on a quantification of the Tribunal's remedial order.
6For these reasons, the Tribunal will not admit the proposed evidence of the chartered accountant or the structured settlement consultant at this stage of the proceeding.
Dated at Toronto, this 21st day of April, 2011.
"signed by"
___________________________________
Lorne Slotnick Member