Budd v. McDougall, 2013 HRTO 2082

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: December 17, 2013 Citation: 2013 HRTO 2082 Indexed as: Budd v. McDougall

WRITTEN SUBMISSIONS

Elaine Budd, Applicant: Self-represented Celia McDougall and Roy McDougall, Respondents: Celia McDougall on behalf of herself and Mr. McDougall

1This Interim Decision addresses whether or not the adjournment of this Application will continue.

Background

2The background to this Application is set out in a number of earlier Interim Decisions (see 2013 HRTO 93 and 2013 HRTO 1763).

3The Application was scheduled to be heard on the merits on October 17, 2013. On October 8, 2013, the respondent Ms. McDougall (who represents both herself and Mr. McDougall in the Application) filed a medical note. The note stated 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". On the basis of this medical note, Ms. McDougall sought an adjournment for one year. In a subsequent conference call held to hear further submissions on the request, Ms. McDougall provided a further explanation of her condition and undertook to obtain a further medical addressing the restrictions and limitations.

4Notwithstanding the applicant's skepticism of the veracity of the claim, I ruled that the hearing would be adjourned with reasons to follow along with directions regarding the continuation of the Application. I stated that I had made no decision regarding the length of the adjournment and that I would review the additional medical received and any submissions made and would determine whether the adjournment would continue and/or may issue other directions.

5In the Interim Decision, 2013 HRTO 1763 providing reasons, the specific directions given were:

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.

6On November 14, 2013, the respondent filed additional medical information. The information consists of a note of a physician in orthopaedic surgery who states that Ms. McDougall considered going for surgery but "because of her present social circumstances, she was not ready to go for this kind of surgery" and that she is waiting for "an appropriate time to have the surgery done". The medical note also states that Ms. McDougall is taking medication to control her symptoms and that "this medication is unfortunately affecting her ability to concentrate". The only restrictions identified are that the physician would "like her to minimize overhead activities, heavy lifting, and pushing using her right arm until she is prepared to go for surgery".

7The applicant has filed submissions in response. The applicant highlights the apparent discrepancy between the initial note and recent medical note on the question of surgery (with the recent note suggesting that Ms. McDougall declined to have surgery), disputes the impact of any medication on Ms. McDougall's ability to concentrate and states that the physician makes no assertion that Ms. McDougall is in pain (only that she describes "her pain as a more intense pain"). The applicant asks that the Tribunal set a hearing date as soon as possible so that the matter can be concluded and that the Tribunal make Celia McDougall and Roy McDougall respect due process.

8The applicant also asks that if Celia McDougall has been appointed to represent Roy McDougall that a properly authorized power of attorney be provided with a notarized signature.

9Ms. McDougall did not file any reply to these submissions.

Is there a medical basis to justify an ongoing adjournment?

10I am not satisfied that there is sufficient medical evidence to justify a continuing adjournment of the Application for the balance of the year requested or a shorter period. At best, the medical note refers to Ms. McDougall feeling pain and that the medication she is taking affects her ability to concentrate. However, there is no clarification of how and/or why these symptoms affect Ms. McDougall's ability to participate in an in-person hearing (including providing evidence and/or submissions) and/or her ability to otherwise comply with directions previously given and/or whether there is any accommodation measures which may enable her to participate. Further, I agree with the applicant that the recent medical suggests that the applicant has elected not to have surgery, which appears inconsistent with the original medical information presented.

11In the circumstances, the hearing will proceed to be scheduled.

Ms. McDougall's Representation of Mr. McDougall

12Ms. McDougall delivered a letter to the Registrar under Mr. McDougall's signature which states that Ms. McDougall will be representing Mr. McDougall and acting on his behalf.

13The Tribunal has accepted this letter for what is stated.

14At this point, I do not find it necessary to request any additional documentation. I note that the fact that Ms. McDougall represents Mr. McDougall does not mean that Mr. McDougall is not required to give evidence. Depending on the applicant's evidence and the response of the respondents, Mr. McDougall may be a necessary and relevant witness.

Summary of Directions

15The Tribunal directs:

• The hearing will be scheduled. The Registrar will set two hearing dates at the earliest dates available to the Tribunal.

16A copy of this Interim Decision will be delivered to the parties by email and regular mail.