Shaikh v. York Condominium Corporation #60, 2012 HRTO 1588

Human Rights Tribunal of Ontario

B E T W E E N:

Samina Salim Shaikh

Applicant

-and-

York Condominium Corporation #60

and Joginder Grewal

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: August 17, 2012

Citation: 2012 HRTO 1588

Indexed as: Shaikh v. York Condominium Corporation #60

WRITTEN SUBMISSIONS

Samina Salim Shaikh, Applicant

Mohammed Shaikh, Representative

York Condominium Corporation #60, Respondents

Carol A. Dirks, Counsel

Introduction

1This Interim Decision is made with respect to an Application filed on January 10, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and harassment with respect to housing accommodation and goods, services or facilities on the ground of sex, and reprisal.

2The applicant is represented by her husband. The respondent is represented by counsel.

3An attempt at mediation was unsuccessful. A hearing in this matter was scheduled to start on May 1, 2012, but the date was cancelled at the request of the applicant. On May 29, 2012, by e-mail, the Tribunal provided alternative dates, giving available dates (August 13, 14, 15, 16, 17, 20, and 21 or September 4, 5, 24, 25, 26, 27, and 28, 2012), and requested that the parties respond by June 8, 2012. Both parties responded by June 8, with the applicant accepting the last two dates for hearing, but the respondent confirmed that it would not be available on those dates. By e-mail of June 20, 2012, the Tribunal directed the parties to canvass mutually agreeable dates for the rescheduling of the hearing, and to provide these dates to the Tribunal by June 29, 2012.

4On June 7, 2012 the Tribunal issued a CAD containing the following Direction:

The Registrar’s Office has contacted the parties to arrange a date for the hearing.

The Registrar’s Office will, in addition, schedule a conference call to deal with these outstanding issues. I will expect to hear from the parties on the following issues:

a) As noted above, the applicant has written to the Tribunal, copying counsel for the respondents, indicating that she is “withdrawing her claim” rather than disclose the required medical records. The applicant should be prepared to explain the nature of the “claim” that is being withdrawn.

b) The respondent should be prepared to discuss a) why it has not indicated what documents will be relied upon at the hearing, and b) why it has not responded to the applicant's request for production. After hearing from the applicant concerning the nature of the “claim” that is to be withdrawn, the respondent should be prepared to speak to whether the requested medical records are arguably relevant to the application.

Both parties should review Rules 5.6 and 5.7 of the Tribunal's Rules of Procedure, and be prepared to speak to whether I should make any order or orders under these Rules.

5On July 3, 2012, the Tribunal received an e-mail from the respondent, copied to the applicant, indicating that counsel for the respondent had adjusted her schedule to be available for the September 27 and 28 dates originally agreeable to the applicant, but that the applicant was now proposing hearing dates in November and December of 2012.

6At this point, despite an Interim Decision (2012 HRTO 809) and four Case Assessment Directions (CADs), the applicant has not fully met her pre-hearing obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure, and the respondent, by e-mail of July 3, 2012, has stated that minutes, reports or correspondence following the filing of the Application are being refused “on the grounds of privilege”, without, as yet, an indication of the authority upon which it relies to claim privilege.

7On July 3, 2012, the Tribunal communicated with the parties in an attempt to set up a teleconference to deal with outstanding procedural and disclosure issues, giving available dates of July 16, 18,19,20,23,25, 26, and 27 2012, and requesting a response by July 5, 2012. The respondent, copying the applicant on an e-mail, indicated availability for a conference call on July 16, 18, 20, 23 and 25. The applicant did not respond. By e-mail of July 5, the Tribunal indicated that if the applicant did not respond by Tuesday July 10, 2012 a Conference Call would be scheduled on one of the dates given by the respondent.

8While the respondent gave dates for availability during that period, and communicated with the applicant concerning those dates, copying the Tribunal, the applicant’s representative indicated by telephone to the Registrar’s Office that he was not available for a teleconference until September, and, according to the respondent, responded to the request to reschedule the hearing by proposing dates in November or December of 2012.

9In the course of attempting to set up a hearing the Tribunal has had written communications from the applicant's representative, detailing certain health conditions affecting the representative, as well as alluding less specifically to health problems of the applicant. However, there has been no specific request from the applicant for accommodation in meeting her responsibilities pertaining to the hearing.

10On July 16, 2012, the respondent filed a Request for an Order During Proceedings asking for an Order that the applicant and/or her representative provide more than one available date in the month of August during the period from August 14 to August 31, 2012 for the purpose of conducting a teleconference, or an order directing the applicant's representative to provide a medical letter to support his position that he is unavailable to participate in a teleconference until September, and/or an order directing the applicant to obtain a new representative.

11On July 25, 2012 the Tribunal received a copy of a letter dated July 23, 2012 to the respondents’ representative from the applicant's representative indicating willingness to settle the Application. No other response to the respondent’s Request has been received from the applicant, and the time for doing so has passed.

12The Notice of Confirmation of Hearing received by both parties to this Application refers the parties to various documents available from the Tribunal’s website. It includes the following paragraph:

ACCOMMODATION

You, your representative and your witnesses are entitled to accommodation of any Human Rights Code-related needs. The HRTO’s Policy on Accommodation and Accessibility is available at http://www.hrto.ca/hrto/?q=en/node/44. Notify the Registrar as soon as possible if accommodation is required.

(emphasis added)

13The Tribunal has a Policy on Accessibility and Accommodation; it attempts to accommodate needs of participants in an Application that arise from personal characteristics reflected in the Code’s grounds of discrimination, of which disability is one. However, the Tribunal must also balance the needs of any one party with its responsibility to provide a fair, just and expeditious hearing.

14The parties are free to discuss settlement and settle the Application if they wish to do so. At this point, however, the Tribunal must proceed with the hearing process. As noted above, there are two matters which require the applicant’s attention-- the setting of a date for a teleconference to deal with what preparation is required before the hearing, and the setting of a date for the hearing itself.

15The Tribunal has both a procedural and a substantive duty to accommodate personal characteristics reflected in the Code’s grounds of discrimination in the provision of its services, and is willing to do so. However, it is the responsibility of the individual requesting accommodation to provide the Tribunal with sufficient information that the individual's needs may be assessed and balanced with the requirements of the Application process, and accommodation may be planned.

Scheduling a Teleconference to Discuss Preparation for the Hearing

16The deadline for the applicant's response to the respondents Request for an Order was July 30, 2012. The passage of time has resulted in a shift of available teleconference dates.

17In respect of the scheduling of a two-hour teleconference to discuss what will be required to prepare for the hearing, the applicant was asked by the respondent to select more than one available date in the month of August during the period from August 14 to August 31, 2012. The Tribunal does not have information from the applicant that would explain why this is not a reasonable request. If the applicant claims that needs related to disability pertaining to herself or representative affect the dates on which she can be available for a teleconference on any specific dates, the applicant must provide the Tribunal with information about what disabilities of herself or her representative affect her ability to participate. The applicant must also provide dates on which she can be available for a teleconference.

18If the applicant is requesting accommodation in respect of the teleconference, she must send the above-noted information to the Tribunal within five days of the date of this Interim Decision. If the applicant is not requesting accommodation in respect of the teleconference, or if the Tribunal does not receive the above-noted information within five days of the date of this Interim Decision, the Tribunal will proceed to schedule a teleconference on a date between September 24 and September 29, 2012.

Setting Dates for a Hearing

19In respect of setting dates for a hearing, if the applicant maintains her position that needs related to disability indicate that her only available dates for the hearing are in November or December of 2012, the applicant must provide the Tribunal with information about what disabilities of herself or her representative affect her ability participate in a hearing before November, and how those disabilities affect her ability to participate in a hearing prior to November. The applicant should review the HRTO’s Policy on Accommodation and Accessibility, which sets out a number of examples of ways in which the hearing process is routinely made more accessible by various accommodation measures.

20If the applicant is requesting accommodation in respect of the hearing itself, she must provide the Tribunal with information about what disabilities of herself or her representative affect her ability participate in a hearing, and how those disabilities affect her ability to participate in a hearing. If the applicant is requesting accommodation in respect of the hearing itself, she must send this information to the Tribunal within five days of the date of this Interim Decision.

21If the applicant is not requesting accommodation in respect of setting dates for the hearing, or if the Tribunal does not receive the above-noted information within five days of the date of this Interim Decision, the Tribunal will proceed to schedule a hearing. In this case, the hearing may be scheduled before November, 2012.

22In view of the above-noted circumstances, I decline to make the orders requested by the respondent.

ORDER

23If the applicant requires accommodation, for needs relating to disability, in the scheduling of a two-hour teleconference, she must send the information outlined in paragraphs 16 and 17, above, to the Tribunal within five days of the date of this Interim Decision.

24Whether or not the applicant requires accommodation in the scheduling of the teleconference, she must advise the Tribunal of five available dates for a two-hour teleconference within five days of the date of this Interim Decision.

25If the applicant requires accommodation, for needs relating to disability, in the scheduling or the conduct of a two-day hearing, she must send the information outlined in paragraphs 18 and 19, above, to the Tribunal within five days of the date of this Interim Decision.

26Whether or not the applicant requires accommodation in the scheduling of the teleconference, she must advise the Tribunal of five available dates for a two-day hearing within five days of the date of this Interim Decision.