Cynthia Gravelle v. Giorgio's No Frills, 2012 HRTO 1643

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cynthia Gravelle

Applicant

-and-

Giorgio's No Frills, George Gullone, Andrew Cruickshanks and Joe Girard

Respondents

RECONSIDERATION DECISION

Adjudicator: Judith Keene

Date: August 28, 2012

Citation: 2012 HRTO 1643

Indexed as: Gravelle v. Giorgio's No Frills

WRITTEN SUBMISSIONS

Cynthia Gravelle, Applicant

Self-represented

Introduction

1The Tribunal issued a Decision, 2012 HRTO 622, with respect to this Application on March 26, 2012. On April 26, 2012, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. The Request was apparently delivered to the respondent on the same date. The respondent was not required to file submissions.

2Section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), allows any party to a proceeding before the Tribunal to request it to reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, reconsideration will not be granted unless the Tribunal is satisfied that:

(a)there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b)the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d)other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

3The applicant relies on Rule 26.5 (d). The applicant’s states that The dismissal discriminated against her on the basis of disability, and requests a hearing that will accommodate her disability.

4It is useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

5The Decision under reconsideration is a decision to dismiss an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleged discrimination in respect of employment on the basis of sex. The Application was dismissed on the basis that the applicant, in not attending a hearing scheduled for March 16, 2012, had effectively abandoned the Application, despite being actively involved in the proceedings to the date of the hearing.

THE FACTS

6The Application at issue in this Decision was filed on June 28, 2010, under section 34 of Part IV of the Code. The Application alleged discrimination in respect of employment on the basis of sex. The respondents denied the allegations.

7By e-mail dated March 3, 2011, sent during the course of an unsuccessful attempt by the Tribunal to arrange a mediation, the applicant's then representative, Jamie Gelencher, who it appears was a friend of the applicant, requested that the mediation be held in Hamilton, on the basis that the applicant “does not have the means to travel to Toronto”. The Tribunal does not routinely conduct hearings or mediations in Hamilton. By e-mail dated March 4, 2011, the Tribunal sent the applicant's representative written information concerning the regional centres in which the Tribunal holds hearings and mediations. This information included the following: “The HRTO may hold hearing in locations other than the ones listed above in order to accommodate Code-related or other needs of the parties or their witnesses” (emphasis in original). By e-mail dated March 10, 2011, the applicant’s representative again requested that mediation be held in Hamilton, stating that the applicant “has no physical or economic means to be able to attend mediation outside of the city of Hamilton”, and that he himself had a disability “that prevents me from being able to travel in a seated position for more than an hour”. This was the applicant’s only reference to disability at that time.

8The applicant’s e-mail of March 10, 2011 also accused the respondent of attempting to bribe the applicant. On the same date, the respondent copied the Tribunal on a responding e-mail that objected to the applicant’s having characterized an offer of settlement as a bribe. On March 30, 2011, the applicant contacted the respondent and the Tribunal to withdraw her participation in the mediation process, and requested that a hearing be scheduled.

9The Tribunal sent the applicant’s representative a Confirmation of Hearing notice by regular mail on November 7, 2011. The Notice informed all parties that the Tribunal had scheduled the hearing in Toronto on March 16, 2012, commencing at 9:30 a.m. The Notice form 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.

10Two Case Assessment Directions (CADs), in February and again in March were issued to remind the parties of their obligations under the Rules to file specified materials prior to the hearing. By e-mail of March 8, 2012, the applicant’s representative requested a 30 day postponement of the hearing, in order to obtain a medical report. The postponement was refused by CAD of March 8, 2012, as there was no indication what relevance the report might have, other than a brief reference to the effect on the applicant of the alleged discrimination on the ground of sex. The CAD stated that “[t]he applicant will be given a chance at the hearing to explain the relevance of the report to the case. After hearing both parties, I will make an order as to whether and how this evidence might be introduced.”

11The applicant’s representative contacted the Tribunal, without copying the respondent, three days before the scheduled hearing. The e-mail requested that the applicant be allowed to participate in the hearing by telephone, and for the first time indicated that the applicant “is disabled and her medical disability prevents her from appearing in person”, and that the applicant’s representative has an “an inoperable herniated disc that would cause [him] extreme pain to travel”. This request gave no information as to what disability prevented the applicant from appearing in person, or how her disability prevented her from travelling from Hamilton to Toronto, a distance of some 70 kilometers. Nor did the request enclose any relevant information from a health-care provider. By CAD dated March 14, 2012, the applicant was directed to send this information to the Tribunal and to the respondent before noon the day before the hearing, and warned that unless otherwise directed, the applicant would be expected to attend the hearing at the scheduled time and place. At paras 3 and 4, the CAD identified what further information was required:

3The Tribunal has a Policy on Accessibility and Accommodation; it attempts to accommodate needs of the parties that arise from personal characteristics reflected in the Code’s grounds of discrimination. However, the Tribunal must also balance the needs of any one party with its responsibility to provide a fair hearing.

4This request has come three days before the hearing, and there is no information as to what disability prevents the applicant from appearing in person, or prevents her from travelling from Hamilton to Toronto. The applicant must send this information to the Tribunal and to the respondent immediately. The respondents will be given an opportunity to respond to the request, and whether or not the information is forwarded, are required to provide their position as to whether they oppose the request, and any further response they wish to make, no later than noon on March 15, 2012.

12On March 14, 2012, the applicant provided a letter dated March 1, 2012 confirming only that she qualified for a government program for disabled people. In respect of her representative, the applicant enclosed two medical documents, a letter from a doctor dated January 5, 2005 indicating that her representative “presented with failed back syndrome” and advising that he should continue a specified treatment and “remain active”, and a report of a CT scan dated 2010. The applicant’s letter stated that the applicant had been aware of her disability prior to March 1, 2012, and that the approval process for the government program had taken some seven months.

13The respondents opposed the request to participate by telephone. Their written submissions pointed out that the Tribunal had before it no information that indicated what prevented the applicant or her representative from attending a hearing in Toronto. The respondents also pointed out that the applicant had been notified over a year ago, via the Tribunal’s March 4, 2011 email, and more recently via the Confirmation of Hearing of November 7 2011, that she could request accommodation, including a different venue. The respondents also raised objections relevant to a fair hearing, arguing that a telephone hearing presents difficulties in assessing witnesses’ understanding of a question and the credibility of responses.

14The request to participate by telephone was denied, and the parties were advised by the Registrar that the hearing would take place as scheduled. Neither the applicant nor her representative attended the hearing.

15The Application was dismissed on the basis that the applicant’s failure to appear at the hearing had not been adequately explained, and as a result of her failure to appear and to provide any evidence in support of her allegations. Paragraphs 18 to 20, the Decision stated:

18The applicant’s representative did state on March 10, 2011, in the course of attempts to schedule mediation, that he had a disability “that prevents me from being able to travel in a seated position for more than an hour”. However, travel from Hamilton to Toronto can be undertaken by train, which does not require that the traveler be seated at all times. It is surprising, in the light of the reminders about accommodation requests sent in November of 2011 in the course of preparing for the hearing, and his communication with the Tribunal in February and March of 2012, that Mr. Galencher did not raise the question of accommodation for himself until three days before the hearing.

19It is also surprising that Mr. Galencher did not raise disability-related accommodation for the applicant at all until three days before the hearing. His assertion that there was “no available proof of disability until now” is difficult to believe in the light of his assertion that the applicant had qualified for the government program, which requires proof of disability.

20The material sent in on behalf of the applicant indicates that she has a disability, and that her representative as recently as 2010 was dealing with a disability. However, neither the applicant nor her respondent has revealed information that in fact indicates that they are unable to attend in person. The Tribunal does not require disclosure of all medical information pertaining to an individual who requests accommodation on the basis of disability. However it is necessary that the Tribunal have enough information to be satisfied that accommodation is requested for needs related to the Code, with enough specificity to suggest an appropriate accommodation in the circumstances. Where such needs are known in advance, they should be raised in advance, to give the Tribunal sufficient time to arrange an accommodation that is consistent with its duty of fairness to all parties.

ISSUES AND ANALYSIS

16The Request for Reconsideration states only that the dismissal of the Application was discriminatory on the basis of disability.

17As noted above, the applicant relies on Rule 26.5 (d), stating that the dismissal discriminated against her on the basis of disability, and requests a hearing that will accommodate her disability.

18In reviewing this matter, I have taken into account Rule 26.5 (c) as well as the subsection cited by the applicant. While I do not have recent medical information concerning the applicant’s representative, I have assumed for the purpose of this decision that both the applicant and her representative have a disability as defined by the Code. In my view, a failure by the Tribunal to meet Code requirements for the accommodation of disability-related needs to the point of undue hardship would be “in conflict with established jurisprudence or Tribunal procedure” and would involve “a matter of general or public importance”, namely, the Tribunal's conformity with the requirements of the Code in respect of its own services.

19There is both a procedural and a substantive duty to accommodate in the provision of services. The procedural duty arises when an individual or organization, in this case the Tribunal, involved in one of the social areas included in the Code has reason to believe that an applicant is having difficulty meeting an essential requirement qualification or factor connected to an area protected by the Code, in this case services, for reasons arising from a personal characteristic listed in the Code as a ground of discrimination. If the requirement, qualification or factor itself is not necessary to the Tribunal’s operations and can be eliminated or modified, the Tribunal has a duty to do so. If the requirement qualification or factor is essential, accommodation must be offered to the point of undue hardship. The procedural duty to accommodate can include making inquiries as to the nature of the difficulty, requesting information from the person needing accommodation, making general or specific offers of accommodation, and maintaining a willingness to communicate, negotiate or experiment until an appropriate accommodation is achieved. There is relatively little jurisprudence on when hardship can be considered undue, but the standard is more than minimal.

20Analyzing whether the duty to accommodate has been met, or whether an individual or organization has established that hardship is "undue” is always fact-based and situation specific. In the Tribunal's case, it is appropriate to look at the service offered by the Tribunal, and the requirements imposed by law in respect of that service.

21Three sections of the Code are particularly relevant to this issue:

40. The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

41. This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.

42. (1) The Tribunal may make rules governing the practice and procedure before it

22Rules 1, 2 and 3 of the Tribunal’s Rules of Procedure deals with accommodation by the Tribunal:

1. These Rules apply to all proceedings before the Tribunal under Part IV of the Code and will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.

2.1 Parties, representatives and witnesses are entitled to accommodation of Code-related needs by the Tribunal and should notify the Registrar as soon as possible if accommodation is required. The provisions of these Rules will be interpreted and applied in a manner that is consistent with the Human Rights Code.

3.13 Where a party has been notified of a hearing and fails to attend, the Tribunal may:

a) proceed in the party’s absence;

b) determine that the party is not entitled to further notice of the proceedings;

c) determine that the party is not entitled to present evidence or make submissions to the Tribunal;

d) decide the Application based solely on the materials before it;

e) take any other action it considers appropriate.

23The 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.

24There were two major problems with the request for a telephone hearing in this case. The first was that, despite written notice from Tribunal the previous November that accommodation was available, and a request that the Registrar be contacted as soon as possible if accommodation were required, the request was made only three days before the hearing.

25Last-minute requests for postponement of a hearing, or a major change in the way in which the hearing is conducted, can cause difficulties and for the other party or parties, as well as an impact on the fair and efficient conduct of hearings by the Tribunal. Where an event, such as the onset or worsening of a health problem, that necessitates a major change or postponement occurs at the last minute this is understandable, and both the Tribunal and other parties may be required to accommodate, but this did not appear to be the case here. In respect of the information about disability that might have been given pertaining to the applicant, it appears that applicant had the information some seven months before March 1, 2012. The applicant had received notice of the hearing dates over four months before, had received two CADs concerning the hearing in the interim, and had requested a postponement of the hearing date for another reason just five days before (eight days before the hearing date). In respect of the applicant’s representative, it appears from his submissions that he has had disability-related information in his possession since at least 2005.

26The second problem was the lack of information relevant to devising accommodation. The Tribunal requires information that would allow it to be sure that a request for accommodation is linked to a need created by a personal characteristic enumerated in the Code; in this case, disability, rather than simply to a personal preference of the applicant or her representative. The Tribunal also requires enough information to devise the best accommodation for the circumstances, which may require balancing the needs of the parties. For example, given the understandable objection of the respondent to the applicant participating by telephone, had the Tribunal received enough information to be sure that disability-related needs were involved, a change of venue might have been the more appropriate accommodation.

27In this case, the Tribunal had some notice during the course of attempting to schedule a mediation in March, 2011 that the applicant’s representative had a disability “that prevents me from being able to travel in a seated position for more than an hour”. However, no more specific information was provided by the applicant, and the applicant withdrew from mediation after a disagreement with the respondent on an unrelated issue.

28The applicant’s request for a telephone hearing gave no information as to how or why disability created needs that adversely affected the ability of applicant or her representative to travel to Toronto for the hearing. In response to the Tribunal’s further inquiries via the March 14, 2012 CAD, the Tribunal was given no information that would enable it to assess what was required to accommodate the applicant, and, in respect of her representative, information that gave only some support to her representative’s assertion that he finds it painful to travel for more than an hour in a seated position, with no information as to why he would have to do so in order to get to the hearing. The applicant provided no further information in her request for Reconsideration.

29If an individual requires accommodation in dealing with the responsibilities of a hearing, the individual must give the Tribunal information that would allow it to be reasonably sure that a request for accommodation is linked to a need created by a personal characteristic enumerated in the Code, rather than simply to a personal preference of the individual. The Tribunal also requires enough information to devise the best accommodation for the circumstances, which may require balancing the needs of the parties. Leaving aside the issue of the timeliness of the request, the applicant did not respond to the Tribunal’s requests for further information, and it is still not clear that the applicant or her then representative in this case required the accommodation requested. In the circumstances, the applicant has not established that any of the factors noted in Rule 26.5 apply in this case. Reconsideration is denied.