Sinclair v. H. Wayne Companies Inc., 2013 HRTO 576

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brittany Sinclair Applicant

-and-

H. Wayne Companies Inc. and Wayne Tanenbaum Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: April 9, 2013 Citation: 2013 HRTO 576 Indexed as: Sinclair v. H. Wayne Companies Inc.

WRITTEN SUBMISSIONS

Brittany Sinclair, Applicant Self-represented

H. Wayne Companies Inc. and Wayne Tanenbaum, Respondents Robert R. Hall, Counsel

1The applicant filed an Application on September 27, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging sexual solicitation and advances in employment.

2This Application was scheduled for a hearing to begin on November 13, 2012. In an Interim Decision dated November 8, 2012, the Tribunal adjourned the hearing because the personal respondent was ill, 2012 HRTO 2124.

3The personal respondent filed a letter from his doctor dated December 4, 2012 which stated that he was bed bound with myasthenia gravis and atrial fibrillation. The doctor wrote, "I cannot predict if, or when, he will ever be fit to deal with such a hearing by any means," and "I fear that the prognosis is not good and that he will never be able to travel to, nor deal with the stress of such a hearing, even by telephone…"

4On February 25, 2013, the personal respondent filed a letter from his doctor which stated that his situation is even worse and that "he is maintained in an assisted living residence with around the clock caregivers… unable to attend any hearings. He is too weak to participate in a telephone hearing, even for a short session… for at least the next twelve months."

5The applicant wishes the hearing to proceed without the personal respondent, and the respondents submit that it would be unfair to proceed with the hearing and the evidence of the applicant in the absence of the personal respondent.

6I cannot see that any further adjournments are of any value to any of the parties, given that the medical documentation suggests the personal respondent's health is unlikely to improve, and it suggests he will never be able to participate in even a telephone hearing in short sessions.

7The Tribunal will proceed to schedule the hearing. The respondents at this stage have not sought to introduce the personal respondent's evidence through affidavit evidence. If they seek to do so they should file the respondent's proposed evidence within 30 days of this decision along with submissions in support. If the respondent seeks to introduce the personal respondent's evidence through affidavit evidence the applicant may file any submissions in response, along with reasons in support of her position. If the respondents continue to take the position that it would be unfair to proceed with the hearing, they may address this issue at the outset of the hearing, and the applicant will be provided with an opportunity to respond. Both parties should be prepared to address the issue of affidavit evidence from the personal respondent in this context.

8Prior to the hearing, if the personal respondent's health improves to the point where his doctor changes his prognosis to predict that he will be able to participate in a hearing, then the respondents may request a further adjournment, but the Tribunal may order that the personal respondent's doctor testify at the hearing of any such request before deciding it.

NEXT STEP

9The Tribunal will proceed to schedule the hearing.