Leong v. Ontario (Attorney General), 2012 HRTO 1685

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amelia Leong

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Attorney General

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: September 6, 2012

Citation: 2012 HRTO 1685

Indexed as: Leong v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

Amelia Leong, Applicant ) Self-represented

Her Majesty the Queen in Right ) of Ontario, as represented by the ) Jennifer Richards, Counsel Attorney General, Respondent )

1This Interim Decision considers whether this matter should be held in abeyance and/or what steps need to be taken to address the lack of progress of this Application in the Tribunal’s process.

2Based on a review of the materials in the file, set out below is a chronology of the Tribunal’s contact with, and from, the applicant.

3The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 16, 2009.

4On June 25, 2009, the Tribunal issued a Notice of Intent to Dismiss, which informed the applicant that the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Tribunal invited the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction. The applicant provided written submissions dated July 22, 2009.

5By way of Interim Decision, 2009 HRTO 1209, the Tribunal determined that it would continue to deal with the Application because it was not plain and obvious on the face of the Application that it was untimely. As such, the Tribunal ordered that the Application continue in Tribunal’s process. The Interim Decision pointed out that the decision to proceed was not a final determination regarding the Tribunal’s jurisdiction over the Application.

6The respondent filed a Response on November 16, 2009, wherein it argued that the Application should be dismissed because there is no prima facie case and that the allegations were beyond the Code’s one year time limit.

7The applicant filed a Reply on January 25, 2010 refuting the respondent’s arguments and claims. In her Reply, the applicant stated that, given her belief that she did not have adequate information from the respondent, mediation would be futile.

8On May 17, 2010, the Tribunal issued a Notice of Mediation scheduling a mediation meeting for October 4, 2010.

9On May 21, 2010, counsel for the respondent wrote to the applicant and Tribunal advising that she was unavailable on the mediation date and proposed alternate dates.

10Later on May 21, 2010, the applicant wrote to the respondent, copied to the Tribunal, stating that because of her ill health she was unable to represent herself and was making inquiries for legal representation through the Human Rights Legal Support Centre (“HRLSC”). The applicant stated that, due to the nature of her illness (unspecified), she was requesting accommodation to be permitted to respond in writing to any questions the respondent has in the matter.

11On June 2, 2010, the Tribunal wrote to the applicant indicating that the Tribunal was attempting to re-schedule the mediation. The Tribunal noted that given the interactive format of mediation it was not possible to conduct mediation in writing. The Tribunal requested the applicant provide clarification if the applicant wished to participate in mediation in person or by telephone or if the applicant was seeking to delay the process. The Tribunal stated that if the applicant was requesting a delay in the Tribunal’s process, the applicant was required to provide medical documentation indicating when she was expected to be able to proceed with the Application or, alternatively, she could ask the Tribunal to simply proceed to schedule a hearing in the matter.

12Although the applicant wrote to the Tribunal on June 16, 2010 requesting copies of documents and advising that she was attempting to secure assistance from the HRLSC, the applicant did not address the questions posed in the Tribunal’s June 2, 2010 letter with respect to her accommodation needs and her intentions with respect to participating in the Tribunal’s the process.

13On November 19, 2010, the applicant wrote a brief note to the Tribunal indicating that she was still very ill and in the process of seeking representation from the HRLSC. The applicant forwarded copies of numerous emails she had exchanged with the HRLSC since May 2010 in attempting to secure legal assistance.

14On March 16, 2011, the Tribunal wrote to the applicant asking that she provide the Tribunal with a status update as the Tribunal postponed scheduling the mediation pending the applicant’s efforts to secure legal representation.

15On March 22, 2011, the applicant wrote to the Tribunal, copied to the respondent, advising that she continued to be very ill and was in no condition to represent herself. The applicant further stated that there was a huge amount of ground work to be done before she could proceed with the matter.

16On March 25, 2011, the Tribunal wrote to the applicant and requested that she provide clarification as to whether she was seeking some specific form of accommodation. The Tribunal noted that, based on its Policy on Accessibility and Accommodation (“Accommodation Policy”), it required more information as to the applicant’s circumstances and what arrangements she would need to participate in the Tribunal’s proceedings. The Tribunal provided the applicant with a copy of its Accommodation Policy.

17On April 6, 2011, the applicant replied to the Tribunal and simply referenced her May 21, 2010 letter. The applicant did not address the Tribunal’s request for clarification of her accommodation needs or identify any particular limitations. She reiterated that she continued to await assistance from the HRLSC. The applicant also requested that the Tribunal provide her with a list of clinics and other potential sources of legal support.

18On February 23, 2012, the Tribunal again wrote to the applicant and requested she write to the Tribunal by March 2, 2012 and provide her intentions regarding the Application. The letter indicated that failure to do so may result in the Application being considered abandoned. The Tribunal confirmed that it could not provide a list of clinics and other potential sources of legal support.

19On February 29, 2012, the applicant wrote to the Tribunal and advised that she continued to be very ill, under doctor’s care and in no condition to represent herself. The applicant indicated that she intended to continue to seek representation from the HRLSC. The applicant stated that it was her position that the Application remains active and not be considered abandoned.

20On June 4, 2012, the applicant wrote to the Tribunal and provided a copy of a handwritten doctor’s note which stated as follows:

To: Whom It May Concern

Re: Leong, Amelia

This is to confirm that the above person is still sick

Continues to be ill

21On June 11, 2012, the applicant wrote to the Tribunal and provided copies of numerous emails and letters she wrote and received from June 2011 to June 2012 with respect to an appeal she is pursuing regarding her vision care benefits. The applicant advised the Tribunal that she considered this to be an outstanding issue to be added to her Application.

22On July 6, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) requiring that the applicant advise the Tribunal of any accommodation the applicant requires to allow her to participate in the Tribunal’s mediation or hearing process. The CAD directed the applicant to indicate her restrictions in order that the Tribunal may propose accommodative measures and to consider whether it was appropriate to hold the Application in abeyance.

23On August 1, 2012, the applicant wrote to the Tribunal reiterating her various concerns regarding alleged mistreatment by the respondent. In response to the Tribunal’s direction for information regarding possible accommodation and her restrictions, the applicant simply stated that she continued to be very ill, under doctor’s on-going care and in no condition to represent herself. The applicant repeated there is a huge amount of ground work to be done before this matter can be proceed. The applicant indicated that she maintains the Application is active and will not be abandoned, but presently cannot move forward. The applicant indicated that it takes strenuous effort to simply compose correspondence.

Analysis

24I am troubled by the fact that the applicant has failed to provide sufficient clarification regarding her intentions and her accommodation needs.

25Prior to the CAD, the Tribunal twice requested the applicant to supply more information about her circumstances and needs. The Tribunal’s June 2, 2010 letter stated that if the applicant was requesting the Tribunal process be delayed, the applicant was required to provide medical documentation indicating when she was expected to be able to proceed with the Application. The Tribunal’s March 15, 2011 letter asked the applicant to provide clarification as to whether and what specific form of accommodation and arrangements she would need to participate in the Tribunal’s proceedings.

26The recent CAD expressly directed the applicant to provide information about her accommodation needs and restrictions in order for the Tribunal to have a better understanding of what can be done to enable the applicant to participate in the proceedings.

27While the applicant has repeatedly written to the Tribunal reiterating that she remains very sick, she has provided no specific information about her limitations and accommodation needs.. The applicant merely repeatedly claims her health prevents her from participating in the proceedings; however, she gives no details about what health restrictions or other barriers exist that need to be accommodated or ameliorated to promote her participation in the process. Similarly, while the doctor’s note indicates that the applicant continues to be sick, the doctor makes this statement in a single sentence and provides no details regarding accommodation needs or functional limitations. As such, the Tribunal has no particulars regarding what, if anything, can be done to the Tribunal’s process so as to facilitate the applicant’s participation and the progress of the Application.

28As noted in the CAD, the applicant is not required to disclose the diagnosis of her disability in order to request accommodation. However, the Tribunal does require certain details about the applicant’s condition to understand how her disability-related needs and restrictions interact with the Tribunal process and environment in order to develop accommodative measures. It is a well-established principle that accommodation is a collaborative process and the applicant should endeavour to provide as much information as possible to facilitate the search for accommodation: Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362 at para. 35.

29In the recent decision of Shaikh v. York Condominium Corporation #60, 2012 HRTO 1588, the Tribunal discussed its duty to accommodate disability in the provision of its services. The Tribunal highlighted that it is the responsibility of the individual requesting accommodation to provide the Tribunal with sufficient information so that the individual's needs may be assessed and balanced with the requirements of the Application process and accommodation may be planned.

30I am also troubled by the fact that the Application was filed on June 16, 2009 and has not advanced any further since the exchange of pleadings. While it is clear that applicant remains interested in eventually pursuing her Application, it is evident from the applicant’s correspondence that she believes a major hurdle to her participation is her inability to secure legal representation and the amount of “ground work” she perceives is looming to present her case. The applicant repeatedly takes the position that in order to participate in the Tribunal process she requires legal representation to assist her and that the Tribunal process should await until she is able to secure legal assistance.

31Based on the applicant’s materials, it appears that the applicant has been attempting to obtain legal assistance since May 2010 and continues to be self-represented. I note, however, that it is not unusual for parties to be self-represented before the Tribunal and according to the Tribunal’s website (www.hrto.ca) approximately 70% of applicants are self-represented: see Ibrahim v. Hilton Toronto, 2012 HRTO 740. Given the delay waiting for the applicant to confirm legal representation, the Tribunal can no longer postpone processing the Application.

32Lastly, I am also troubled by the fact that while the applicant stresses that her ill health prevents from even preparing written correspondence, it is evident from the applicant’s own materials that over the past two years she has engaged in generating a significant amount of correspondence and communications with respect to concerns that she perceives relate to her human rights, including pursuing an appeal regarding her vision care benefits. In addition to the numerous emails she has exchanged and authored about her vision care benefit dispute, the applicant also provided copies of her numerous emails with the HRLSC, as well as made various written submissions to the Tribunal.

33In light of the circumstances of this case, I do not consider it to be appropriate for the Tribunal to hold the Application in abeyance.

34The Tribunal’s mandate includes a fair, open and accessible process. Having said that, the Tribunal is also committed to providing a just and expeditious process. The applicant’s repeated failure to respond to the Tribunal’s request for information regarding her accommodation needs and awaiting for her to secure legal representation has already significantly stalled the progress of this file. The delay in the progress of the Application necessitates that the Tribunal establish firm deadlines for future steps to ensure that the rights and obligations of the parties’ are respected and the integrity of the Tribunal’s process and resources are protected. Further, given the absence of any information about the applicant’s accommodation needs and the presence of documentary materials which confirm that the applicant has frequently prepared written correspondence over the past two years, I will require the applicant to participate in the next stage of the Tribunal’s process in writing.

Order

35The Tribunal orders as follows:

i. Within 14 days of the date of this Interim Decision, the applicant is required to write to the Tribunal, copied to the respondent, with medical confirmation and specific details of her Code-related needs and limitations and what accommodation, if any, is required to facilitate her participation in the Tribunal process;

ii. Alternatively if the applicant no longer requests any accommodation, within 14 days of the date of this Interim Decision, the applicant is required to write to the Tribunal, copied to the respondent, and confirm that no accommodation is necessary;

iii. If the applicant fails to provide the above-noted information and confirmation, the Application will be dismissed as abandoned;

iv. Subject to any issues that may arise from the information provided by the applicant regarding accommodation, the Tribunal will proceed to consider the respondent’s request to dismiss the Application for delay;

v. The applicant is directed to provide written submissions addressing the issue of delay to the respondent and file them with the Tribunal within 28 days from the date of this Interim Decision;

vi. The respondent is directed to respond to the applicant’s submissions by filing its written submissions with the Tribunal, copied to the applicant, within 14 days following receipt of the applicant’s submissions; and

vii. The Tribunal will consider the parties’ submissions, and may determine any of the issues set out above based on the parties’ submissions, and/or may schedule future steps accordingly.

36I am not seized of this matter.