Adrianna Biondic v. Intact Financial Corporation, 2014 HRTO 77

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adrianna Biondic

Applicant

-and-

Intact Financial Corporation (formerly ING Canada) and Sandra Schwering and Rohan Singh

Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle Date: January 17, 2014 Citation: 2014 HRTO 77 Indexed as: Biondic v. Intact Financial Corporation

WRITTEN SUBMISSIONS

Adrianna Biondic, Applicant

Self-represented

Intact Financial Corporation (formerly ING Canada) and Sandra Schwering and Rohan Singh, Respondents

Christine Thomlinson, Counsel

Introduction

1This is an application filed under s. 53(5) 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.

2The respondents deny having discriminated against the applicant contrary to the Code.

3This Interim Decision addresses the applicant’s Request for an Adjournment of the two half-day hearing dates scheduled for this matter, January 21, and 30, 2014, and the respondents’ request to dismiss this Application.

BACKGROUND

4On June 18, 2013, the Tribunal wrote to the parties, providing “Confirmation of Hearing dates and Required Preparation”. It advised that based on the parties’ availability, hearing dates have been scheduled for January 21 and 30, 2014, from 1:30 to 4:30 p.m. each day. Half day, non-consecutive hearing days were scheduled as an accommodation of the applicant’s stated needs. The Tribunal’s letter also provided the deadlines of July 18, 2013 and January 2, 2014 for exchanging and filing materials prior to the hearing.

5On July 17, 2014, the applicant filed a Request for an Order During Proceedings (RFOP) seeking an adjournment of the January 21 and 30, 2014 hearing dates. She provided a note from Dr. R. Bray dated July 11, 2013 which stated that “due to medical reasons, Ms. Biondic’s Human Rights file with the employer needs to put [sic] on hold for at least six months”. In her RFOP, the applicant submitted that she needed an adjournment as she had been occupied with other legal proceedings and housing-related issues, and “as an accommodation of [my] disabilities”.

6The respondents opposed the applicant’s request for an adjournment, but consented to an extension of her deadline for filing materials, provided she would be required to file her hearing materials at least 45 days in advance of the scheduled hearing dates.

7The respondents noted at that time that between February 23, 2006 and March 8, 2011, the matter had been scheduled for mediation on five occasions and that each time, the applicant had requested an adjournment due to illness. Ultimately, mediation attempts were conducted over the telephone over a period of 18 months, without success. The respondents also submitted that many of the requests were at the last minute, and were a “significant impediment to a fair process as the parties have been prevented from moving this matter towards a conclusion”. They submitted that in light of the history of multiple adjournments of the mediation, they were concerned that the matter would “not proceed to a hearing without undue delay and further adjournment requests”.

8The Tribunal issued an Interim Decision on September 25, 2013, denying the request to adjourn the January 21 and 30, 2014 half-day hearing dates and granting the applicant an extension to December 2, 2013 for filing disclosure of materials originally due July 18, 2013. It also required the parties to file the remainder of the materials by January 2, 2014.

9The applicant did not file any materials on December 2, 2013 or otherwise communicate with the Tribunal about her obligations in that regard.

10The respondents filed their required materials on January 2, 2014.

11No communication was received from the applicant and on January 9, 2014, the Tribunal issued a Case Assessment Direction (“CAD”) in which it alerted the applicant to the fact that she had failed to comply with Rule 18 of the HRTO’s Rules of Procedure for Transition Applications, regarding pre-hearing disclosure of documents and witnesses. The CAD directed her to deliver to the respondent and file with the Tribunal the documents she intends to rely upon at the hearing, a list of her witnesses and a brief statement describing what her witnesses will say when they testify, by January 16, 2014. It advised her that if she did not comply with the direction by January 16, 2014, the Application may be dismissed as abandoned. It also advised her that if she did not communicate with the Tribunal at all by January 16, 2014, her case may be dismissed as abandoned.

12On January 16, 2014, at 4:30 p.m., the applicant sent an email to the Tribunal and also sent a copy of a letter from Dr. Bray. The letter was dated November 19, 2013. It indicated that the applicant’s condition had “deteriorated significantly” since July 11, 2013 and that she could not meet deadlines or participate in the “hearing scheduled for January 24th [sic] and 30th 2014”. It stated she was having difficulty concentrating and was having “problems with short-term memory, significant pain and low energy levels, making it difficult for her to process information and communicate for any extended period of time. She has high anxiety and very low tolerance for stress.” It stated that “to accommodate her medical conditions, I request that she be granted an adjournment of her hearing, an extension of time to file her documents and additional time to review the evidence”. It indicated that she “requires until May 2014 to file her documents and at least a four month period of time between the exchange of documents and the hearing.” It indicated that she also requires accommodation for the hearing and that she was preparing a list of her accommodation needs.

13On January 17, 2014, the respondents wrote to the Tribunal, noting the history of last minute requests for adjournments in this matter and objecting to the applicant’s request for an adjournment. Further, they submit that the respondents have been unfairly prejudiced in this matter, in favour of the applicant, and they request that the Application be dismissed.

DECISION

14The January 21, 2014 half-day hearing in this matter will not proceed as scheduled. The January 30, 2014 half-day hearing, however, scheduled for 1:30 to 4:30 p.m., will proceed. At that time, the parties will not be required to address the merits of this Application. Rather, that half-day hearing date will be used in order to hear evidence and argument regarding whether the applicant’s request for an adjournment should be granted or whether this Application should be dismissed for abuse of process.

15The applicant should be prepared to testify regarding her request for an adjournment, including why she waited almost two months to send in Dr. Bray’s letter, and should also make Dr. Bray available to testify. Testimony from Dr. Bray should include whether she was aware of the fact that the Tribunal scheduled non-consecutive half-day hearing dates as an accommodation to the applicant’s stated needs, what leads her to conclude that the applicant is unable to participate in a hearing into the merits of her Application at this time, how and why she chose May 2014 for dates for disclosure of the applicant’s documents and a four-month period for review of the documents prior to the actual hearing date, as well as what leads her to conclude that the applicant will be in a position to participate in a hearing on those future dates. Should the applicant require a summons to witness for her witness, she may contact the Tribunal in order to obtain one. The Tribunal will permit Dr. Bray to testify by teleconference and will permit Dr. Bray to choose what time on January 30, 2014, between 1:30 and 4:30 p.m., will be most convenient for the commencement of her testimony. The applicant should provide that information to the Tribunal and to the respondents no later than January 29, 2014.

16The above-noted November 19, 2013 letter from Dr. Bray indicated that the applicant was at that time in the course of preparing a letter for the Tribunal, outlining her needs for accommodation at the hearing. If the applicant seeks accommodation for the January 30, 2014 half-day hearing, she is reminded that it is her responsibility to provide the Tribunal with sufficient information that her needs may be assessed and balanced with the requirements of the Application process, and accommodation may be planned in advance. Accordingly, should she seek accommodation for the upcoming hearing date, she is directed to write to the Registrar forthwith, with a copy to the respondents, with the details of her request.

ORDERS

17The Tribunal orders as follows:

a. The half-day hearing scheduled for January 21, 2014, will not proceed as scheduled.

b. The half-day hearing scheduled for January 30, 2014, will proceed. At that time, the parties will not address the merits of this Application. The applicant will be required to provide evidence, including testimony, regarding her request to adjourn, and the parties will be required to make submissions regarding whether the applicant’s request for an adjournment should be granted or whether the Application should be dismissed as an abuse of the Tribunal’s process.

c. The applicant shall advise the Tribunal when Dr. Bray will be testifying by January 29, 2014.

d. If the applicant seeks accommodation for the January 30, 2014 half-day hearing date, she will contact the Registrar forthwith with details of her request.

18I am not seized.