Budd v. McDougall, 2013 HRTO 1763

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elaine Budd

Applicant

-and-

Celia McDougall and Roy McDougall

Respondents

Interim DECISION

Adjudicator: Kathleen Martin

Date: October 18, 2013

Citation: 2013 HRTO 1763

Indexed as: Budd v. McDougall

WRItten and oral submissions

Elaine Budd, Applicant ) Self-represented

Celia McDougall and ) Celia McDougall

Roy McDougall, Respondents )

1This Interim Decision provides reasons for a ruling issued on October 15, 2013 adjourning the hearing scheduled for October 17, 2013 and other directions related to the continuation of the Application.

BACKGROUND

2This Application has been the subject of several interim decisions. The background facts summarized in the most recent Interim Decision, 2013 HRTO 93, will be briefly referenced again for purposes of context.

3The Application arises out of the applicant’s employment with Craiglee Nursing Home (“Craiglee”). The applicant alleges that her employer refused to accommodate her on the basis of disability and that she was discriminated against based on age in a comment made by the respondent Ms. McDougall. During the relevant time, Mr. McDougall was the owner and administrator (the latter for only part of the time) and Ms. McDougall was the secretary and assistant administrator/ administrator (the latter depending on the timeframe).

4Craiglee did not file a response to the Application. Instead the Court-appointed Receiver of the assets, undertakings and properties of Craiglee wrote to the Tribunal taking the position that the proceeding was stayed against it. The applicant subsequently sought to withdraw against Craiglee. The Tribunal granted the request: 2011 HRTO 1978.

5A hearing was held to determine whether the Application should continue against the respondents. At the hearing, Ms. McDougall stated that she was making submissions on her own behalf and on behalf of her father, Mr. McDougall. On June 6, 2012, she filed a written authorization to this effect. To date, Ms. McDougall has continued to act on behalf of both respondents.

6In the Interim Decision dated January 18, 2013, I determined that the Application would continue to be processed against both individual respondents and issued various directions including that the respondents provide a detailed amended Response. The respondents did not file an amended Response.

7On April 5, 2013, the Tribunal issued a Notice of Confirmation of Hearing for October 17, 2013. The Notice contained deadlines for complying with the exchange of arguably relevant documents and the disclosure and filing of documents, witness lists and summaries of the expected evidence of witnesses. The respondents did not comply with these requirements.

8On September 18, 2013, the Tribunal issued a Case Assessment Direction directing the respondents to immediately confirm their current contact information (as the Tribunal had been advised that mail delivered to the respondents at the address previously given had been returned) and to immediately file the materials required under Rules 16 and 17.

9On October 8, 2013, the respondents filed a medical note in respect of the individual respondent Ms. McDougall dated September 23, 2013. The note states that Ms. McDougall has been under the care of a physician for a “serious right shoulder joint injury”, that she is awaiting surgery and that she has been, and until her surgery will remain, “substantially incapacitated”.

10On October 10, 2013, the Tribunal issued a further Case Assessment Direction directing Ms. McDougall to advise if an adjournment was being sought, and if it was, the length of the adjournment being sought and any submissions in support of the same. On October 11, 2013, the respondents filed a formal request for a one-year adjournment of the hearing on October 17, 2013, relying on the physician’s letter previously mentioned.

11On October 15, 2013, the applicant filed submissions opposed to the adjournment. The applicant states that while the injury to Ms. McDougall is apparently severe, it in no way impacts her mobility, her ability to get to the hearing or her ability to testify. The applicant notes that she previously arranged to take time off work and a one-year delay will needlessly drag out the resolution of the matter.

12On October 15, 2013, a conference call was held to hear further submissions on the request. In the conference call I asked Ms. McDougall to directly respond to the applicant’s submissions by outlining any restrictions or limitations on her ability to participate in the hearing as well as addressing the failure to comply with the various directions issued since the Interim Decision dated January 18, 2013.

13Ms. McDougall stated that she preferred to obtain a further medical and undertook to do so. In addition, however, Ms. McDougall explained that mobility is a challenge for her, she is unable to write (given that she is right-handed) and is in constant pain and on “pain killers” and therefore “can’t focus”. As for the timing of her request, Ms. McDougall stated that it was only when she saw her physician on September 23, 2013, that he recommended that she not attend the hearing. The one-year period would accommodate her wait for surgery and the substantial rehabilitation time that she anticipates will follow surgery.

14As for her failure to comply with the various directions, Ms. McDougall states that this was due to her injury and the circumstances outlined in the medical note.

15The applicant remained skeptical of the veracity of the claim being made and expressed her desire to know if the case was proceeding.

16During the conference call, I issued an oral ruling adjourning the hearing for October 17, 2013, with reasons to follow along with directions regarding the continuation of the Application.

Reasons for Oral Ruling

17The Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Request, and Requests for Adjournments states, in part:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

18Having regard to all of the circumstances, I can appreciate the applicant’s skepticism of the adjournment request. Further, I acknowledge the applicant’s frustration in having arranged to take time off from work. However, in the face of the medical note provided, coupled with Ms. McDougall’s elaboration of the impact of her injury, I found it appropriate to adjourn the hearing. Ms. McDougall has undertaken to obtain a further medical addressing the restrictions and limitations and has outlined limitations which would appear to be problematic for participating in a hearing. While it is apparent that the applicant currently challenges the veracity of what is being claimed, I did not find that the challenge could be fairly resolved during the conference call. In the result, I found it fair, just and expeditious to cancel the hearing on October 17, 2013 for the purpose of issuing directions to Ms. McDougall to obtain a further medical addressing her restrictions and limitations, the length of time that any restrictions and limitations will be applicable, and any accommodation measures that may be instituted to enable Ms. McDougall to participate in the process. The parties will also be provided with an opportunity to make any submissions regarding the same.

19I have made no decision as to the length of the adjournment. I will review the additional medical received and any submissions made and will determine whether the adjournment will continue and/or may issue further directions. As mentioned during the conference call, depending on the circumstances, the Tribunal may find it appropriate to schedule a proceeding to hear evidence and submissions on any continuing request for an adjournment.

20Finally, I reiterate that the Tribunal will accommodate a party with a disability, including instituting accommodation measures to enable a party to participate in a proceeding consistent with the Tribunal’s obligations under the Code. Examples of accommodation measures are providing additional time to a party, shortening the length of a hearing date, providing additional and/or longer breaks and/or permitting a party to tape record the proceeding. In this respect, the respondent Ms. McDougall may wish to refer to the Tribunal’s Policy on Accessibility and Accommodation available on the Tribunal’s website at www.hrto.ca and provide her physician with a copy of the same along with a copy of this Case Assessment Direction so that the issue of accommodation can be considered by the physician.

Other Issues

21The directions previously given to the respondents regarding filing a detailed amended response, complying with Rules 16 and 17 and confirming current contact information (municipal address, telephone number, facsimile number and email address) in writing, remain in effect until the Tribunal directs otherwise. If the respondents are unable to comply with any of these directions for medical or health-related reasons, Ms. McDougall should ask her physician to also address this in the medical report.

22I note that during the conference call, Ms. McDougall stated that she could and would now provide an updated mailing address. For clarity, the direction to the respondents to confirm their contact information including their “municipal address” is their mailing address. The Case Assessment Direction dated September 18, 2013 otherwise remains in effect.

Summary of Directions

23The Tribunal directs:

i. By October 25, 2013, Celia McDougall shall provide a medical report from her physician outlining:

• any restrictions or limitations that she has that impact on her ability to participate in an in-person hearing (including providing evidence and/or submissions);

• any restrictions or limitations that impact on her ability to otherwise participate in the proceeding by complying with the directions previously given to file an amended Response, the documents she intends to rely on in the hearing, a witness list and a statement summarizing the expected evidence of each witness;

• the length of time such restrictions or limitations will be operative; and

• a description of any accommodation measures which may enable her to participate in the hearing.

ii. By November 1, 2013, the applicant may file any response.

iii. By November 8, 2013, the respondents may file any reply.

24A copy of this Case Assessment Direction will be delivered to the parties by email and regular mail.