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: April 23, 2012 Citation: 2012 HRTO 809 Indexed as: Shaikh v. York Condominium Corporation #60
1This is an Interim Decision in respect of an Application filed on March 24, 2011, 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 housing accommodation and goods, services or facilities on the ground of sex, and alleges reprisal.
2A hearing in this matter has been scheduled to start on May 1, 2012. Two days have been scheduled for the hearing. Two Case Assessment Directions (CADs) (dated, respectively, March 28 and April 3, 2012) have been sent to the parties, concerning their pre-hearing obligations. The parties have filed amended witness statements. This interim decision is to deal with a Request for an Order During Proceedings filed by the respondents and other issues relating to the hearing.
3It appears that the applicant intends to call her doctor, Dr. Lin, to testify at the hearing. On March 30, 2012, upon filing amended witness statements, the applicant indicated that a letter apparently signed by Dr. Lin, which she had sent to the respondents and to the Tribunal on March 15 2012, represents Dr. Lin’s expected testimony.
4On April 5, 2012, the respondents filed a Request for an Order During Proceedings. The respondents state that they require immediate production of “any medical notes, tests, and reports of Dr. Lin for the period noted in Dr. Lin's letter from 2008 to date. The respondents also request the production of “any medical notes, tests and report of any psychiatrist or other specialist as it relates to the medical condition referred to by Dr. Lynn in his letter”.
5On April 15, 2012, the applicant sent an e-mail to the Registrar, and to the respondents asking that one of her witnesses, Mr. Ali, be allowed to give his testimony over the telephone. By e-mail of April 16, 2012 the respondents object to this witness being allowed to testify other than in person. The respondents also indicate that they are unaware as to whether the applicant will be giving evidence at the hearing, and have requested that the Tribunal issue a summons to her.
Disclosure of medical records
6The applicant has not responded to the respondents’ Request, and the time for doing so has expired.
7It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding. See Guthrie v. Upper Grand District School Board, 2011 HRTO 1605 and the decisions cited in that decision.
8It appears that the applicant has put her mental health in issue, in that she has claimed that the alleged actions and omissions of the respondents have affected her mental health. I find that medical documentation that relate to the applicant’s mental health at the material time as defined by the applicant is arguably relevant to the factual and legal issues raised by the Application.
9Having said that, the respondents are somewhat late in the proceedings to request disclosure of an unknown magnitude and complexity. There is no information at this point as to whether the applicant saw one or more specialists as well as her family doctor, and, if so, how quickly relevant records might be produced. I deny the respondents’ Request at this point, without prejudice to their ability to raise the issue later in the proceedings. If necessary, the hearing can be bifurcated so that appropriate disclosure can be made, and this evidence can be dealt with at a later date.
10In the circumstances, the hearing on May 1 will be changed to a starting time of 1:30, with the following day as previously scheduled. This will serve to notify the parties of the change in the start time for May 1, 2012 and a further Notice will not be issued from the Registrar’s office”.
Testimony by telephone
11The applicant has indicated that Mr. Ali is “unable” to attend the hearing because of medical appointments. This request for accommodation has come very late. The Tribunal has a Policy on Accessibility and Accommodation; it attempts to accommodate needs of the participants in hearings 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.
12As the dates for hearing are very close, the applicant is directed to ascertain whether Mr. Ali can be available to testify in person at any time between 1:30 and 5 PM on May 1 or May 2 2010. I will rule on the question of Mr. Ali’s testimony on the first day of the hearing.
13A final point in regard to Dr. Lin: the applicant has referred to Dr. Lin as an “expert witness”. The applicant , who is not represented by legal counsel; may not have used this term as it is used in Rule 17 of the Tribunal’s Rules of Procedure. If the applicant intends to seek to have Dr. Lin qualified as an expert, rather than as an ordinary witness testifying to his or her knowledge and observations as the applicant's treating physician, the applicant must immediately, and in any event no later than May 25, 2012, comply with the Tribunal's Rules governing expert witnesses.
Request for summons to applicant
14The Tribunal does not issue summons; parties may request them from the Registrar. Having said this, it appears that the applicant does intend to testify; a witness statement that is evidently hers is appended to her amended witness statements. The respondents’ Request for a summons is therefore denied.
ORDER
15The hearing will be conducted from 1:30 to 5 PM on May 1, 2012, and 9:30 to 5 PM on May 2, 2012.
16The applicant is directed to ascertain whether Mr. Ali can be available to testify in person at any time between 1:30PM and 5 PM on May 1 or 9:30 to 5 PM on May 2 2012. The applicant must contact the Registrar by e-mail, copying the respondent, with this information no later than April 26, 2012.
Dated at Toronto this 23rd day of April, 2012.
”signed by”
____________________________________
Judith Keene Vice-chair