Golec v. Pfenning’s Organic Vegetables Farm Inc., 2012 HRTO 372

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anibal Condor Golec

Applicant

-and-

Pfenning’s Organic Vegetables Farm Inc.

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: February 22, 2012

Citation: 2012 HRTO 372

Indexed as: Golec v. Pfenning’s Organic Vegetables Farm Inc.

WRITTEN SUBMISSIONS

Anibal Condor Golec, Applicant ) Self-represented,

1This Interim Decision addresses the applicant’s Request for an Interim Remedy (Form 16). It also deals with his Request for Order During Proceeding to hold the hearing out of the country or via Skype video conference.

BACKGROUND

2The Application, which was filed on July 16, 2010, alleges discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

3The applicant worked for the respondent from May to August, 2008, some two years before he filed his Application. He alleges that he developed a workplace injury and this led to the termination of his employment with the respondent. He further alleges that he requested work in 2010, and was advised in July that no work was available. The applicant alleging that the respondent failed to offer him modified duties. It is not clear, however, whether his allegations relate to the 2008 period, or whether they relate to his request to be re-hired in July 2010. His requested remedy is for $84,000, which represents five years of wages.

4A hearing was scheduled to take place in the above matter on April 5, 2012. The applicant wrote immediately after receiving the Notice of Hearing that he would not be able to attend as he was expecting to be in Peru to obtain treatment on his injured hand. He was unable to provide the Tribunal with alternate dates as he was uncertain how long he would have to be out of the country for the treatment and any recovery.

5The Tribunal wrote a Case Assessment Direction (“CAD”) on January 4, 2012, in which it placed his matter in abeyance for a period of one year, with the requirement that the applicant provide periodic updates. On January 18, 2012, the applicant filed the Request for Interim Remedy and the Request for an alternate hearing setting.

6The respondents did not respond to either Request.

DECiSION AND ANALYSIS

Interim Remedy

7In the instant case, the applicant requests an interim remedy to pay for medical treatment of his injured hand. He has returned to Lima, Peru in order to seek medical treatment, but states that he does not have the money, which he estimates to be $10,000, to pay for this treatment.

8Rule 23.2 sets out the circumstances in which interim remedies will be granted:

23.2 The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

9In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal states that such remedies are extraordinary and are only granted when the applicant is able to demonstrate that an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing.

10Rule 23.3 requires that Requests for Interim Remedies be accompanied by a signed declaration (or declarations). The applicant has failed to do this, but instead appended what appears to be a page from a medical chart, which is in Spanish. This is clearly insufficient and on this basis alone, the Request would fail.

11I would note also that there is no correlation between the requested interim remedy and the applicant’s allegations of discrimination. Even if the applicant were successful, such a remedy would not flow from a finding that the respondent had failed to provide him with modified work. That is, even accepting this allegation of discrimination to be true, the respondent would not be responsible for paying the cost of the applicant’s treatment. This would also be a basis for denying the applicant’s Request.

12The Request for Interim Remedy is denied.

Request for Alternate Hearing Location or Form of Proceeding

13The applicant suggests that the hearing could take place at the Canadian Embassy in Lima, Peru. This suggestion ignores the considerable cost of holding a hearing in such a venue to the respondent and the Tribunal. It is not reasonable. When applicants leave the jurisdiction, it is incumbent upon them to make themselves available for a hearing; it is not the responsibility of the Tribunal or other parties to transport themselves to another jurisdiction simply because the applicant has moved. The applicant’s request concerning venue is denied.

14The applicant suggests, in the alternative, that the hearing can proceed by way of a Skype video conference. As noted by the Associate Chair in Kogan v. Hennessey, 2011 HRTO 690, the Tribunal does not conduct hearings on Skype. Accordingly, the applicant’s alternate request is also denied.

15Rule 3.5 of the Tribunal’s Rules of Procedure does allow for proceedings by telephone, but since the applicant did not request this, the respondent has not had an opportunity to respond to this suggestion.

16I would note the applicant filed a request to proceed to mediation by teleconference in March 2011. Counsel for the respondent responded to that suggestion by letter dated April 14, 2011, in which he noted that his client objected to a telephone mediation on the basis that it would prevent it from assessing the applicant’s physical limitations and presentation. The respondent also expressed concern that the applicant had demonstrated language problems and that a teleconference would “exacerbate any language problems.”

Status of File

17As noted above, this Application has been placed in abeyance until January 4, 2013. The applicant was directed to report to the Tribunal three months from the date of the CAD and every three months thereafter. Instead, the applicant communicated with the Tribunal on January 5, 2012, eventually bringing the above two Requests. It is necessary, therefore, to modify the schedule set out in the CAD.

18The applicant is directed to report to the Tribunal three months from the date of this Interim Decision, and every three months thereafter, on the status of his treatment and/or recovery and his availability for a hearing. As stated in the CAD, the Tribunal may dismiss this matter as abandoned in the event that the applicant does not file these status reports as directed.

ORDER

19In sum, I have made the following orders/directions:

a. The Request for Interim Remedy is denied;

b. The Request to move the venue of the hearing to the Canadian Embassy in Lima, Peru is denied;

c. The Request to hold the hearing via Skype video conferencing is denied; and

d. The applicant is directed to report to the Tribunal three months from the date of this Interim Decision, and every three months thereafter, on the status of his treatment and/or recovery and his availability for a hearing.

20I am not seized of this matter.