Gor v. Durham Hino Truck & Equipment Inc., 2013 HRTO 410

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Natalia Gor

Applicant

-and-

Durham Hino Truck & Equipment Inc. and Malkeet Dhillon

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: March 11, 2013

Citation: 2013 HRTO 410

Indexed as: Gor v. Durham Hino Truck & Equipment Inc.

WRITTEN SUBMISSIONS

Natalia Gor, Applicant

Victoria Shen, Counsel

Durham Hino Truck & Equipment Inc. and Malkeet Dhillon, Respondents

Peter Dhillon, Representative

Introduction

1This is an Interim Decision in respect of an Application filed on September 25, 2012, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and sex. The Application alleges harassment and reprisal.

2The Application was served on the respondents on October 16, 2012, with a Response due on or before November 20, 2012. The Tribunal received a request for extension of time to respond from the son of the personal respondent, who provided information indicating that his father had suffered a stroke in mid-September 2012, and stated that, as his father was not capable of handling his legal affairs, he would be acting as his father’s representative. With the consent of the applicant, an extension of time to respond to March 1, 2013 was granted, with the stipulation that the respondents submit an update on the health of the personal respondent by February 14, 2013, if they wished a further extension.

3On February 12, 2013, the personal respondent’s son submitted a Request for an Order During Proceedings (Request) requesting a further extension of time of unstated duration. The Request enclosed a brief note from the personal respondent's neurologist. The note states that the personal respondent still has significant cognitive problems, has trouble communicating and has little memory of events preceding the stroke. The note also contains the opinion that the personal respondent is likely to be left with “significant cognitive deficits for the rest of his life”.

4The applicant filed a Response to the Request. The Response asserts that the respondents have demonstrated capacity to deal with legal proceedings well in another forum in that, after the applicant left her employment in October of 2011 and filed her human rights Application in September of 2012, the respondents filed a complaint alleging theft related to a corporate credit card against the applicant. The applicant asserts that she was contacted by the police in respect of this complaint on or about February 5, 2013.

5The applicant takes the position that if the respondents are able to file a complaint to the police, they are able to complete and file a Response to the Application.

6The applicant correctly points out that, in the Tribunal's processes, extensions and adjournments are temporary and are only granted where circumstances warrant. They submit that, given that there is no present prognosis for improvement in the condition of the personal respondent in the foreseeable future, there is no reason to warrant a further extension of Time to file a Response.

7The applicant submits that, where a medical condition has an ongoing impact on the ability of a party to participate in an Application, the appropriate mechanism is to consider the capacity of the party. Counsel for the applicant correctly points out that whether an individual has capacity depends upon the particular decision being made. Legal capacity is based on the party's ability to make and understand decisions connected to the litigation The applicant submits that, at this point, the only issue is the filing of a Response, and points out that the neurologist's letter of February 6, 2013 does not address the requirements of a Response or state that the personal respondent is incapable of filing a Response.

8I agree with the applicant that the Tribunal’s decisions in Morrison v. Effort Trist Realty Co. (1993), 1993 CanLII 16464 (ON HRT), 26 CHRR D/119, Romanchook v. Garda Ontario, 2009 HRTO 1077, and Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795, are germane to the issues here. I also agree that, once a party is aware of a proceeding against it, there is an obligation to take steps to preserve the evidence still available at the time (see Shreve v. Corporation of the City of Windsor (1993), 1993 CanLII 16462 (ON HRT), 18 CHRR D/363).

9The respondents’ Request for a further extension of time is dismissed.

ORDER

10The respondents must file a Response within 30 days of the date of this Interim Decision.