Kline v. Ontario (Community Safety and Correctional Services), 2012 HRTO 1167

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terry Kline

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: June 14, 2012

Citation: 2012 HRTO 1167

Indexed as: Kline v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Terry Kline, Applicant ) Self-represented

Her Majesty the Queen in Right )

of Ontario as represented by the ) Jordana Joseph, Counsel

Ministry of Community Safety )

and Correctional Services, Respondent )

INTRODUCTION

1The purpose of this Interim Decision is to address various preliminary issues and to provide directions to the parties with respect to managing the hearing.

BACKGROUND

2On December 24, 2009, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to services because of his disability.

3Specifically, the applicant alleged that the respondent failed to accommodate his disability-related needs when a doctor denied his request for prescription medications (Oxycontin, ratio-oxycocet, apo-sertraline, and apo-oxazepam) to manage his disabilities (knee pain, anxiety and sleep problems) during a 14-day incarceration in a detention centre. He stated that suddenly being deprived of his medications resulted in withdrawal symptoms such as chills, dizziness, diarrhea, and vomiting. The applicant admitted that he did not have his prescriptions with him, but stated that he verbally explained what medications he required. He also admitted that he had access Tylenol Extra Strength and anti-diarrhea medication during his incarceration, but stated that these medications were ineffective.

4On March 26, 2010, the respondent filed a Response, which denied the allegation of discrimination. The respondent admitted that the applicant exhibited withdrawal symptoms and requested narcotics upon entering the detention centre. However, the respondent stated that the applicant did not have any prescriptions on his person, the narcotics that he requested were highly addictive, and a medical decision was made by a doctor not to administer any narcotics to him. The respondent also stated that the applicant saw a nurse almost every day during his incarceration.

5On June 6, 2011, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing was scheduled for November 22, 2011.

6The Notice set out the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses. Rule 16 requires each party to deliver to every other party and file with the Tribunal a list and copy of all documents that it intends to rely on no later than 45 days prior to the first scheduled day of hearing. Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list and brief statement summarizing the expected evidence of each witness no later than 45 days prior to the first scheduled day of hearing.

7In accordance with the Notice and Rules 16 and 17, the parties were required to disclose to each other and file with the Tribunal all the documents that they intend to rely on, a witness list and witness statements by no later than October 7, 2011. The respondent complied with Rules 16 and 17, but the applicant did not.

8On November 15, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) which directed the applicant’s attention to Rules 16.4 and 17.4, which state that no party may rely on or present any document not included on a document list and not provided to the other parties and filed with the Tribunal, or present a witness whose name and summary of evidence was not included in a witness list, except with the permission of the Tribunal.

9The applicant appeared for the hearing on November 22, 2011, without having complied with Rules 16 and 17. Most of the hearing day was spent trying to mediate the case, which was unsuccessful, and dealing with various preliminary issues. In view of the fact that the applicant was an unrepresented layperson, and the respondent was represented by legal counsel, I took steps to ensure that the applicant has a fair opportunity to present his case. Specifically, with respect to additional hearing dates, I provided the applicant with plain language directions on how to comply with Rules 16 and 17, and informed him that he should consider calling his doctor as a witness. With respect to calling witnesses, I informed the applicant that a witness may appear voluntarily at the request of a party or be summoned by a party. I specifically explained Rule 3, which provides:

3.1 On the request of a party, the Tribunal will provide a summons to witness in blank form and the party may complete the summons and insert the name of the witness.

3.2 Delivery of a summons to a witness is the responsibility of the party who obtained the summons.

10I then repeated these directions in writing in a CAD that was issued to the parties on November 24, 2011. The CAD also directed the applicant to comply with Rules 16 and 17 by no later than February 17, 2012, and warned him that if he failed to do so by this date, the Tribunal may dismiss his Application.

11At the hearing, the applicant requested that the respondent produce the names and contact details of his cell mates during his detention so that he could call them as witnesses. The respondent requested that it have an opportunity to provide written submissions on this issue. I granted the request and received the respondent’s submissions on December 14, 2011.

12On February 14, 2012, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing is scheduled to continue on July 4 and 5, 2012.

13The applicant did not comply with my direction to deliver to the respondent and file with the Tribunal all the documents that he intends to rely on, a witness list and witness statements by no later than February 17, 2012. On May 24, 2012, the respondent sent the Tribunal an e-mail which requested that the Application be dismissed as abandoned. On May 25, 2012, the applicant filed a witness list and brief witness statements, but did not submit the documents that he intends to rely on.

14On June 7, 2012, the applicant sent the Tribunal an e-mail which requested that the hearing be adjourned.

ADJOURNMENT REQUEST

15The Hearing Notice informed the parties that requests for adjournments will be dealt with in accordance with the Tribunal’s Practice Direction: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments. The Practice Direction provides that requests to reschedule a hearing must be made within 14 days of receiving the Notice, and requests for adjournments thereafter will only be granted in extraordinary circumstances, such as the illness of a party, witness, or representative.

16The applicant’s request to adjourn the hearing was made more than 14 days after the Hearing Notice was issued to the parties. The Tribunal’s approach to late adjournment requests was set out in Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days [now 14 days] after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with those broader interests by requiring that a party advise within five days [now 14 days] that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

17In his e-mail, the applicant stated that he is requesting an adjournment because he is having difficulty gathering his witnesses for the hearing, and he has another legal matter on the same dates as the hearing. The respondent sent the Tribunal an e-mail which stated that it is not opposed to the applicant’s adjournment request.

18In my view, the applicant’s failure to contact and serve summonses on his witnesses in a timely manner and his vague assertion about a scheduling conflict do not constitute an extraordinary circumstance which justifies adjourning the hearing, particularly in light of the clear oral and written directions that I provided to the applicant more than six months ago. Accordingly, the applicant’s request to adjourn the hearing is denied.

PRODUCTION REQUEST

19In his request for the names and contact details of his former cell mates, the applicant did not clearly explain why he wants to call his them as witnesses, but suggested that they would corroborate his evidence that he experienced withdrawal symptoms as a result of the respondent denying him access to prescription medications.

20The respondent opposed the applicant’s request on the basis of privacy and relevancy. In short, the respondent stated that the fact that his former cell mates were incarcerated is highly personal information that ought to be safeguarded, and that the applicant has not demonstrated how his cell mates’ testimony would be relevant to the issues in dispute in the case.

21The applicant’s request for the names and contact details of his former cell mates is denied. The respondent has admitted that the applicant exhibited withdrawal symptoms when he entered the detention centre, but stated that the doctor who examined him did not observe any objective signs of withdrawal. I cannot see, based on the applicant’s submissions, how his cell mates’ evidence will be relevant or carry much weight with respect to this issue. Clearly, the applicant’s doctor, who is knowledgeable about his medical issues and prescribed him medications, is in a better position to provide evidence on this issue.

DIRECTIONS

22The hearing will proceed in the following manner on July 4 and 5, 2012:

(a) The parties will make their opening statements.

(b) I will address any preliminary issues raised by the parties.

(c) The applicant will present his evidence.

(d) The respondent will present its evidence.

(e) The applicant will present his reply evidence, if any.

(f) The parties will make their closing arguments/submissions.

23Both parties should have their medical witnesses available to testify on both July 4 and 5, 2012. I clearly informed the applicant more than six months ago that he should consider calling his doctor as a witness, and clearly explained what steps he needs to take to call his doctor as a witness. Despite that, the applicant’s May 25, 2012 witness list stated that he is waiting for his doctor to return from vacation and his doctor is only “possibly” a witness.

24At the outset of the hearing, I will clarify with the applicant if he is calling his doctor as a witness. If he is not calling his doctor as a witness, the parties should be prepared to address as preliminary issue whether the Application should be dismissed because it has no reasonable prospect of success.

25Rule 19A of the Tribunal’s Rules of Procedures provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. Typically, summary hearings are held at a relatively early stage in the Tribunal’s process and involve receiving the applicant’s submissions on his or her legal theory and what evidence he or she anticipates calling at the merits hearing in support of the allegations. However, the principle that an application can be dismissed because it has no reasonable prospect of success is not limited to the initial early stage of the Tribunal’s process, and can be heard as a preliminary issue at the outset of a hearing of the merits of the application, as in the case at hand. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, at para. 18.

26The approach to deciding whether an application has a reasonable prospect of success was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

27Human rights tribunals have recognized that differences in opinion can arise between patients and doctors when doctors decide upon the best course of treatment for a patient, including whether or not to administer medication. These tribunals have consistently held that standard of medical care issues are not within a human rights tribunal’s jurisdiction, unless the doctor’s decision amounts to differential treatment based on a Code ground, or the doctor fails to accommodate the patient’s disability-related needs up to the point of undue hardship. See Wilson v. Dixie Road Medical Association, 2011 HRTO 1607; TenBruggencate v. Elgin (County), 2010 HRTO 1467; Egan v. Dr. Kennedy, Dr. O’Kane and St. Paul’s Hospital, 2006 BCHRT 15; and McDonald v. O’Malley and B.C. (Ministry of Public Safety and Solicitor General), 2005 BCHRT 154.

28The respondent is planning call three medical witnesses: (1) the doctor who made medical decisions with respect to the applicant at the detention centre, (2) a nurse who tried to contact the applicant’s doctor, and (3) another doctor who reviewed the applicant’s medical records and agrees with the decisions of the first doctor. In my view, if the applicant fails to call his own doctor as a witness, there is a real issue as to whether the Application has a reasonable prospect of success.

ORDER

29The Tribunal makes the following orders and direction:

1. The applicant’s request to adjourn the hearing is denied.

2. The applicant’s request for the names and contact details of his former cell mates is denied.

3. If the applicant is not calling his doctor as a witness, the parties should be prepared to address as a preliminary issue at the hearing whether the Application should be dismissed because it has no reasonable prospect of success.