Mathew Blakely v. Queen’s University, 2011 HRTO 891

Human Rights Tribunal of Ontario

B E T W E E N:

Mathew Blakely

Applicant

-and-

Queen’s University

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: May 6, 2011

Citation: 2011 HRTO 891

Indexed as: Blakely v. Queen’s University

1This Interim Decision is written following my decision in this matter dated April 13, 2011 (2011 HRTO 706) in which I denied the applicant’s request for an adjournment of the hearing scheduled for June 1, 2011. The applicant’s adjournment request was denied, in part, on the basis that the medical documentation provided by the applicant did not say that he was medically incapable of proceeding with the hearing nor did the medical documentation provide any basis to support such a conclusion.

2Subsequent to the release of that decision, the applicant provided further medical evidence from his psychologist. The applicant expressly has not consented to the release of his psychologist’s letter to the respondent. When a party is requesting an accommodation in relation to the Tribunal’s hearing process, it is the Tribunal’s practice not to require that medical information to be shared with the other parties. Nonetheless, the Tribunal may share the substance of the medical support for the accommodation request where appropriate, for the purpose of enabling other parties to make submissions in response to the proposed accommodations or to know why certain accommodations have been made by the Tribunal. Accordingly, while the Tribunal will respect the applicant’s request that his psychologist’s letter not be disclosed, it is my view that in this Interim Decision it is appropriate to share the substance of that letter in order to enable the respondent to understand why the hearing will not proceed on the date scheduled by the Tribunal.

3The applicant’s psychologist in his letter has expressed his professional opinion that the applicant is psychologically incapable of proceeding with the hearing, in the absence of his primary witness, because of his compromised psychological and emotional condition. The psychologist’s letter provides a medical basis to support this opinion, and sets out serious potential consequences to the applicant’s health if the hearing were to proceed at this time.

4Accordingly, on the basis of this new medical information received by the Tribunal, I am prepared to grant the applicant’s request for an adjournment of the hearing scheduled for June 1, 2011. The applicant has indicated that it is his hope that the hearing can be moved to late July, early August, or September 2011. I am aware from prior attempts to schedule this matter that the respondent may have difficulty with dates in July and August, and so I propose the following dates in September for the re-scheduling of the hearing: September 7, 12, 16, 22, 23, 29 and 30, 2011.

5Within 10 calendar days of the date of this decision, the parties shall advise the Tribunal of all of their availability, including the availability of their witnesses, on the proposed dates. In particular, the applicant is directed to ensure that his primary witness is available on the dates for which he indicates that he is available for the hearing.

6In my last decision, I ordered the applicant to file his pre-hearing materials by no later than May 12, 2011. While the letter from the applicant’s psychologist does not expressly address the filing of these materials, it is my view that his opinion and concerns are broad enough to provide a medical basis to support an extension for the applicant to file these materials. Accordingly, the applicant is hereby relieved of the requirement to file this material by May 12, 2011, and instead shall do so no later than 20 calendar days in advance of the hearing. To be clear, what the applicant is required to file by this date is the following:

a. a detailed and complete written statement of all of the evidence he proposes to elicit from his primary witness relevant to the March 2007 competition for the Sessional Adjunct Instructor position, which shall include a statement that it was reviewed by the witness and that the matters contained within the statement are true and are within her knowledge;

b. a description of the evidence of any other witnesses, including himself, that he intends to call at the hearing relevant to the March 2007 competition for the Sessional Adjunct Instructor position; and

c. any documents upon which he intends to rely at the hearing that are relevant to the March 2007 competition for the Sessional Adjunct Instructor position.

7In allowing the applicant’s request for an adjournment, I want to be clear that this proceeding cannot be delayed indefinitely. As sympathetic as the Tribunal may be to the applicant’s circumstances, I share the respondent’s concern that the events at issue in this matter date back over 4 years now and the evidence grows staler with each passing day. There may come a point where the delay in proceeding with this matter has caused sufficient prejudice to the respondent as to affect the fairness of the hearing, such that the Application may be vulnerable to dismissal: see Blencoe v. British Columbia (Human Rights Commission) 2000 SCC 44, [2000] S.C.J. No. 43; Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (1995), 1995 CanLII 7431 (ON CTGD), 24 C.H.R.R. D/464 (Div. Ct.).