Cynthia Gravelle v. Giorgio's No Frills, George Gullone, Andrew Cruickshanks and Joe Girard, 2012 HRTO 622

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

DECISION

Adjudicator: Judith Keene

Date: March 26, 2012

Citation: 2012 HRTO 622

Indexed as: Gravelle v. Giorgio's No Frills

APPEARANCES

Cynthia Gravelle, Applicant ) No one appearing

Giorgio's No Frills, George Gullone, ) Genny Na, Counsel Andrew Cruickshanks and Joe Girard ) Respondents )

1The Application at issue in this Decision was filed on June 28, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in respect of employment on the basis of sex. The respondents deny the allegations.

2This Decision dismisses the Application on the basis that the applicant, in not attending the hearing scheduled for March 16, 2012, has effectively abandoned the Application, despite being actively involved in the proceedings to date. The applicant has failed to establish a reason why her request of March 12, 2012 to participate in the hearing by telephone from Hamilton, Ontario should be granted.

3The following is a summary of the relevant history of this matter.

4By letter dated February 18, 2011, a mediation was scheduled by the Tribunal on April 14, 2011 in Toronto. By e-mail dated March 3, 2011, the applicant’s representative, Jamie Gelencher, advised that he was representing and assisting the applicant and that “Cynthia Gravelle does not have the means to travel to Toronto... she requests a location in Hamilton” for the mediation.

5By e-mail of March 4, 2011, the Tribunal promptly responded that “the HRTO is committed to making its hearings and mediations accessible. The HRTO will hold hearings in any of the following regional centres: Toronto, Kingston, London, North Bay, Ottawa, Sarnia, Sault Ste. Marie, St. Catherines, Sudbury, Timmins, Thunder Bay, and Windsor. 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). The Tribunal advised that it would be willing to schedule the mediation in St. Catherines if the parties consented. By e-mail dated March 7, 2011, the respondent stated that it did not consent to move the mediation to St Catherines.

6By email dated March 10, 2011, the applicant requested that the mediation be held in Hamilton. The e-mail stated in part, “The applicant has no economic or physical means to be able to attend mediation outside of the city of Hamilton. In addition, I, the representative of applicant, have a physical disability that prevents me from being able to travel in a seated position for more than an hour.” The applicant’s e-mail also characterized an offer of settlement from the respondent as a “bribe”; an allegation disputed by the respondent.

7By e-mail dated March 30, 2011, the applicant indicated that she did not wish to participate in mediation. By e-mail dated April 4, 2011 to the parties, the Tribunal cancelled the April 14 mediation date and notified the parties that “[t]he file will be forwarded to the hearing queue for processing and a Notice of Confirmation of Hearing will be mailed out.”

8By e-mail to the applicant and the Tribunal of April 4, the respondents encouraged the applicant to proceed by way of telephone mediation, as “any type of mediation is better than no mediation at all”. It appears that there was no response from the applicant until an email to the Tribunal dated September 12, 2011, in which Mr. Galencher agreed to hold a mediation by telephone. By letter of September 27, 2011, the Tribunal declined to schedule another mediation date, as the applicant had withdrawn her consent to mediate. The letter stated:

The parties are free to continue settlement discussions amongst themselves. The parties may also request mediation-adjudication in accordance with Rule 15A of the Rules of Procedure Governing Part IV Applications at the outset of the hearing.

The HRTO will issue notice of an in-person hearing to be held in Toronto in due course.

9A hearing in this matter was scheduled for March 16, 2012. The 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, 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.

10By Case Assessment Direction (CAD) dated February 21, 2012, both parties were reminded of their obligations under the Rules to file specified materials prior to the hearing. By Case Assessment Direction dated March 6, 2012, the applicant was again reminded of her filing obligations.

11By e-mail of March 8, 2012, Mr. Gelencher requested a 30 day postponement of the hearing scheduled for March 16, 2012, in order to obtain a medical report.

12In a CAD dated March 8, 2012, I denied the request:

The applicant has not complied with the requirements of the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments. In any event, that policy provides that requests to reschedule must be made within 14 days of receiving the Confirmation of Hearing and that outside that time adjournments will be granted only in extraordinary circumstances.

The applicant has not indicated why extraordinary circumstances should be considered operative in this case. There is also no indication what relevance the psychologist’s report may have, other than a brief reference to the effect of the alleged discrimination on the applicant. The 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.

The hearing will take place on March 16, 2012 as scheduled.

13On March 12, 2012, Mr. Galencher sent an e-mail to the Tribunal, copied to the respondent. The e-mail requested that the applicant be allowed to participate in the hearing by telephone, and indicated that the applicant “is disabled and her medical disability prevents her from appearing in person”. The email also indicates that the applicant’s representative has an “an inoperable herniated disc that would cause [him] extreme pain to travel”. This request, three days before the hearing, gave no information as to what disability prevented the applicant from appearing in person, or prevented her from travelling from Hamilton to Toronto. By CAD dated March 14, 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.

14The applicant provided only a letter dated March 1, 2012 confirming that she qualified for a government program for disabled people, and two medical documents, a letter from a doctor dated January 5, 2005 indicating that Mr Galencher “presented with failed back syndrome” and advised that he should continued a specified treatment and “remain active”, and a report of a CT scan dated 2010. Mr Galencher stated in the letter that the applicant had been aware of her disability prior to March 1, 2012, and that the process of getting approved for the program had taken some seven months. He indicated that there was “no available proof of disability until now”.

15The respondents opposed the request to participate by telephone. Their written submissions pointed out that the Tribunal had before it no information that indicated why the applicant or her representative could not attend 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.

16The parties were advised by the Registrar that the hearing would take place as scheduled.

17The respondent attended the hearing. Neither the applicant nor her representative did so. I waited for a half hour, then asked counsel for the respondent for her submissions.

18The respondents submitted that the Application should be dismissed as abandoned.

DECISION

19The 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.

20It 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.

21The 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. As noted by the Ontario Human Rights Commission, “Accommodation is a shared responsibility. Everyone involved, including the person asking for accommodation, should work together, exchange relevant information, and look for accommodation solutions together.” 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.

22The applicant’s failure to appear at the hearing has not been adequately explained, and as a result of her failure to appear and provide any evidence in support of her allegations, the Application is dismissed.