Shaikh v. York Condominium Corporation #60, 2013 HRTO 396

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

DECISION

Adjudicator: Judith Keene Date: March 8, 2013 Citation: 2013 HRTO 396 Indexed as: Shaikh v. York Condominium Corporation #60

APPEARANCES

Samina Salim Shaikh, Applicant Mohammed Shaikh, Representative

York Condominium Corporation #60, Joginder Grewal, Respondents Carol A. Dirks, Counsel

Introduction

1This is a 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. The applicant is represented by her husband. The respondent is represented by counsel.

2This decision dismisses the Application because the applicant has failed to give information relevant to the need for and the nature of accommodation at a hearing of needs related to disability, and to indicate when she would be ready to proceed to a hearing.

3This matter has had a lengthy history of attempts to deal with the merits of the Application. An initial attempt at mediation did not result in settlement. A hearing in this matter was scheduled to start on May 1, 2012. An Interim Decision, 2012 HRTO 809, was issued on April 23, 2012 to address, among other issues, the applicant’s submission that one of her witnesses would be unable to attend the hearing because of medical appointments. Ultimately, the May dates were cancelled closer to May 1 at the request of the applicant. Subsequently, there were unsuccessful efforts to schedule another hearing date, largely caused by difficulties getting a commitment from the applicant. In the course of attempting to set up a hearing the Tribunal received written communications from the applicant's representative, detailing certain health conditions affecting the representative, as well as alluding less specifically to health problems of the applicant. However, there was no specific request from the applicant for accommodation in meeting her responsibilities pertaining to the hearing.

4An Interim Decision issued on August 17, 2012, (2012 HRTO 1588) set out both the Tribunal’s commitment to the accommodation of needs relating to personal characteristics recognised in the Code, and direction for the applicant as to how to arrange accommodation, including the information she should give the Tribunal. The relevant information was not received by the Tribunal.

5In the course of a September, 2012 case management teleconference, the applicant was reminded that if she wished to request accommodation in respect of the hearing, she must provide the Tribunal with information about what disabilities of herself or her representative affect her ability participate in a hearing, and how those disabilities affect her ability to participate in a hearing. Further hearing dates were scheduled to start on November 29, 2012.

6On the November 28, 2012, the applicant sent an adjournment request by email, indicating that both she and her representative were ill, and that her doctor had prescribed medication and advised bed rest. In view of the short notice and the fact that this was her second request for adjournment, the applicant was directed to provide the Tribunal with information from her doctor that would specifically address the participation of the applicant and her representative in a hearing, in support of her medical reasons for the adjournment. This requirement was met with a brief note from the applicant’s doctor.

7Hearing dates commencing on January 8, 2013, were scheduled. At the applicant’s request, the hearing date on January 8 was scheduled as a half-day, to accommodate a health condition identified as anxiety, panic attacks and a sleep disorder. Despite an original estimate that two days would be sufficient hearing time, two other hearing dates were scheduled for January 15 and 16, 2013, because the applicant’s health condition might continue to require that hearings be in the afternoon only.

8On January 1, 2013, an e-mail request to cancel the half-day of hearing scheduled for January 8, 2013, and the two other hearing dates on January 15 and 16, 2013, was sent by the applicant to the Tribunal. By CAD dated January 2, 2013, I directed the applicant to obtain certain information from her doctor. The applicant sent to the Tribunal and copied the respondent with some information, although the information was not a complete response to the queries in the CAD. A note from the applicant's doctor stated that the applicant “has worsening of her insomnia and depression” and that the applicant “will not be able to attend” on January 8, 15 and 16, 2013. The note goes on to say “I will continue to monitor her condition and advise in the next few months as to when she has recovered enough to attend”.

9By CAD dated January 7, 2013, I directed the parties to attend at the next scheduled hearing date, or to send their representatives and be available by telephone, so that I could discuss with the parties in person what next steps would be appropriate.

10The parties’ representatives attended on January 8, 2012, and both made submissions. The applicant’s representative indicated that the applicant continues to get very little sleep and is anxious and depressed. The applicant’s representative confirmed that, while he had shown the doctor the CAD of January 2, 2013, the doctor was busy and could not spare time to write more than a brief note.

11The respondents’ representative indicated that the respondent wishes to call witnesses, some of whom are employed and some of whom are elderly. The respondent expressed concerned about both the disruption to the witnesses’ lives and memories fading, and noted that certain actions taken by the applicant which have already been the subject of submissions to the Tribunal (some of which are admitted by the applicant) have had an adverse impact on the respondents’ witnesses. The respondent also submitted that there has been insufficient information to justify the adjournment of the hearing.

12The applicant’s representative had also complained about actions by certain individuals in the condominium, some of whom are witnesses for the respondent. It was clear that the situation was distressing for all concerned, and accordingly I offered the parties the opportunity to undertake further mediation, assisted by another Vice Chair. The parties accepted this offer.

13By CAD dated January 11, 2013, I reviewed developments to that date and set out the requirements for proceeding with the hearing as follows:

In the normal course, the applicant would present her evidence before her witnesses present theirs. In a first half-day hearing, the applicant would be expected to attend, prepared to give her evidence concerning the actions or omissions of the respondents that she alleges breached the Code. She may do this by adopting the statements made in the Application she filed on January 10, 2011, by giving oral testimony describing the relevant events, or both. I may have questions for the applicant, and if time allows, there may be cross-examination from counsel for the respondent (if time does not allow, cross-examination may have to wait until the next hearing date). If the applicant’s health condition requires that she be given breaks during the course of her evidence, this can be arranged.

(at para 13)

14In that CAD, I issued the following direction, at paras 14 and 15:

…the applicant is directed to:

a) obtain a report from her doctor that indicates what accommodation measures might be necessary to enable her to meet the above-noted requirements, and

b) propose dates during which she could make herself available for three half-day hearings.

The applicant is directed to write to the Tribunal, copying the respondent, identifying the proposed dates and requested accommodation and enclosing her doctor’s report, on or before January 31, 2013.

15On January 31, 2013, the Tribunal received a letter from the applicant. The applicant indicated that mediation efforts were ongoing. In response to the January 11 CAD, the applicant enclosed a brief note from her doctor dated January 23, 2013, that indicated only that the applicant “Continues to suffer with insomnia and depression. Currently she is not able to withstand court procedures due to her emotional state. I will continue to monitor her and advise when she can attend”. Clearly, this response did not meet the requirements set out in the January 11 CAD.

16On February 11, 2013, the Tribunal received a letter from counsel for the respondents which had been copied to the applicant's representative. The letter pointed out that the note from the applicant's doctor had not provided any details relevant to his medical opinion, nor any advice as to the circumstances in which the applicant would be able to attend or any prognosis relevant to future attendance. While the respondents did not argue that they were prejudiced by a further adjournment, they submitted that they would be prejudiced by an indefinite stay in the conduct of the hearing in these proceedings.

17I have been informed that efforts to achieve a mediated settlement were not successful.

18On February 22, 2013, the Tribunal received a request for an interim remedy with a covering letter from the applicant, both of which have been copied to the respondents.

19The applicant has in effect requested an indefinite stay of proceedings. I agree that the prospect of an indefinite stay raises considerations of fairness to the respondents.

20The Tribunal has issued a number of decisions that address conflict between the personal concerns of parties and parties’ responsibilities in dealing with litigation. Most of these have dealt with privacy concerns and disclosure obligations: see for example Guthrie v. Upper Grand District School Board, 2011 HRTO 1605 and G.A. v. York Region District School Board, 2011 HRTO 2110. In the latter decision, the Tribunal voiced (at paras 11 and 16) some of the considerations that can arise when the Tribunal seeks to balance the rights of both parties:

I have heard and understand the applicant’s concerns that the medical records contain private and highly sensitive material. The parties are, of course, reminded of their obligation to treat sensitive medical information with the utmost care and to be mindful of their responsibility to ensure that the material that is produced is not used for any purpose other than this proceeding…

…While the file may be in the possession of the respondent, it is clear that the applicant’s next friend has power and control over the file in this context. The respondent argues, and I accept, that it would constitute an abuse of process for the applicant’s next friend to withhold consent to use these documents while still seeking to proceed to have her allegations of discrimination heard by this Tribunal.

21In this case, the issue is not the applicant’s state of health but her refusal to give information that would enable the Tribunal to arrange for accommodation at a hearing of needs related to disability, and to specify when she would be ready to proceed to a hearing. The information given to date does not even specify why the applicant’s doctor believes that she is unable to attend with accommodation.

22On a human level, it is understandable that an individual might wish to get a remedy without going through a hearing. However, an application to the Tribunal is a legal proceeding. Participants in legal proceedings have responsibilities, and the Tribunal must be fair to all parties. The Code gives the Tribunal the responsibility of dealing with the merits of an application in a fair, just and expeditious manner. Requesting an indefinite stay of proceedings while refusing to provide appropriate evidence as to the relevant circumstances amounts to an abuse of the Tribunal’s process. In Ouwroulis v. New Locomotion, 2009 HRTO 335 at paras. 4-7, the Tribunal stated as follows:

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

23In the circumstances of this case, the Application is dismissed.