Hoffman v. Provincial Long Term Care Inc., 2014 HRTO 770

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Hoffman

Applicant

-and-

Provincial Long Term Care Inc. and Ed Ozimek

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: May 30, 2014

Citation: 2014 HRTO 770

Indexed as: Hoffman v. Provincial Long Term Care Inc.

1This Interim Decision responds in further detail to the applicant’s request in his Request for an Order During Proceedings (“RFOP”) dated March 3, 2014 for hearing accommodations for the applicant, as well as for clarification of my Case Assessment Direction, dated April 17, 2014.

2The applicant filed his RFOP prior to the first day of hearing on March 13, 2014, and the parties agreed that it should be dealt with prior to the resumption of the hearing. Dates for the resumption of this hearing have been set for August 6-8, 2014. The respondents provided a written response to the applicant’s RFOP on March 24, 2014. The applicant since has provided further information in response to my CAD that requested, in part, medical documentation to support the request for hearing accommodation.

Request for Code-related Accommodations

3The applicant asks that:

a. his testimony be limited to 3 hours each hearing day, and

b. his wife be permitted to sit with him as a support person during his testimony despite the fact that she will also be a witness.

4The applicant seeks these accommodations to permit him to participate in the hearing effectively and not become overwhelmed.

5The respondents object to the request to limit testimony to 3 hours per day and to the applicant’s wife being permitted to sit with him as a support person. The respondents also request that if the applicant’s testimony is going to be limited to 3 hours a day that the hearing be moved to Toronto due to the increased cost for the respondents.

Clarification of CAD

6The applicant also requested that I clarify my CAD with respect to information to be provided to the applicant by the respondents, namely his request that the respondents advise when Mr. Ozimek made the undated notes included in the Respondents’ Documents to Rely on at Hearing.

the rules, the law & Policy

7Rule A5.1 of the Social Justice Tribunals Ontario Common Rules provides:

A party, representative, witness or support person is entitled to accommodation of Human Rights Code-related needs by the tribunal and should notify the tribunal as soon as possible if accommodation is required.

8Section 40 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) also is relevant to this issue:

40. The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

9The Tribunal also has a Policy on Accessibility and Accommodation which confirms that everyone who uses the Tribunal’s services can ask for and is entitled to receive accommodation for their human rights related needs in order to enable them to participate in the Tribunal’s proceedings on an equal basis. Both the Tribunal and the individual seeking accommodation have ongoing obligations to participate in the accommodation process; this may include exploring various options to meet the Code related needs of the individual seeking accommodation. Accommodation is provided up to the point of undue hardship. In the somewhat unique context of an administrative tribunal, where an individual has requested a particular form of accommodation that will likely have an impact on the hearing process, an assessment of undue hardship may require an examination of the impact of the requested form of accommodation on the other parties’ legal interests, and in particular procedural fairness issues that may arise and have an impact on their right to a fair hearing.

the parties’ positions

10The applicant submits, on the basis of his diagnosis of bi-polar affective disorder, that he becomes irritable and edgy and has difficulties in concentration and focus and executive function, symptoms which asserted themselves in the days leading up to the first day of hearing in March, 2014. Dr. Milo, the applicant’s former psychiatrist, confirmed in his February 2014 report that bi-polarity often is accompanied by these symptoms during periods of stress.

11The applicant also submits that his wife is a registered nurse and expects that the applicant will become increasingly confused, overwhelmed and disoriented as he gives his evidence.

12The applicant submits that his bi-polar disorder disability is supported by letters from Dr. Patino, dated March 19, 2014 and from Dr. Milo, dated February 10, 2014.

13The respondent submits that there is no medical evidence to support the accommodation requests; the request to limit the applicant’s evidence to 3 hours per day will greatly increase the respondents’ costs of the hearing; and the requests are not consistent with the applicant’s apparent ability to work full-time, which they state he appears to have been doing since July 2013.

decision

14After I reviewed the applicant’s RFOP, I requested that the applicant provide further information including:

• Clarification of whether he was asking that the hearing time be limited to 3 hours a day or that his time testifying be limited to 3 hours per day; and

• medical documentation in support of his request for accommodation.

15I pointed out to the applicant that he need not disclose a diagnosis but must identify the Code-protected ground for which accommodation is sought and explain why the proposed accommodations are necessary to permit his effective participation in the hearing.

16The applicant clearly requests accommodation for a disability and I accept that he has a disability for the purposes of the accommodation request.

17However, with respect to the request for accommodation, it is necessary that the Tribunal have enough information to be satisfied not only that accommodation is requested for needs related to the Code, but also that there is enough specificity to suggest and assess an appropriate accommodation in the circumstances. Having sufficient information about the applicant’s medical needs as they relate specifically to restrictions on his ability to participate in the hearing process allows the Tribunal to assess options for accommodation that also take into account balancing the interests of other parties who may be directly affected by changes to the hearing process. For example, with more information, it might be possible to assess whether options such as taking additional breaks during the hearing, would be an appropriate form of accommodation that met the applicant’s disability-related needs and were less intrusive to the process than limiting the duration of the applicant’s testimony to 3 hours per day.

18The Tribunal requires information that will satisfy it that a request for accommodation is linked, in this case, to the applicant’s disability, rather than simply being the applicant’s preference. See, for example: Gravelle v. Giorgio's No Frills, 2012 HRTO 1643.

19The medical note provided by the applicant from Dr. Patino, dated March 19, 2014, is a referral requesting that another doctor consider seeing the applicant because he has “some new concerns regarding stress related to labour dispute” although he is noted to be “[c]urrently stable”. The note from Dr. Milo, although dated February 10, 2014, provided a history of the applicant’s treatment by Dr. Milo dating from April 2010, but Dr. Milo had not seen the applicant since the fall of 2012.

20While Dr. Milo drew a link between the applicant’s bi-polar affective disorder and the symptoms that often accompany times of stress, he did not provide sufficient information to allow the Tribunal to meaningfully assess the types of restrictions the applicant’s disability would place on him with respect to the hearing process; in particular whether there are options less intrusive to the hearing process that would allow the applicant to meaningfully participate or whether the accommodation proposed by the applicant is the only option reasonably feasible to meet his medical needs/restrictions. See, for e.g. Ihasz v. Ontario (Revenue), 2013 HRTO 2112. At this time the applicant’s request for accommodations is denied in part. He may renew the request with further medical information, if obtained.

21With respect to the applicant’s wife attending with him as a support person while he gives his evidence, the respondents object because there is no medical evidence to support this, but also because the respondents see it as a way to circumvent an order excluding witnesses. With respect to this request, given the applicant’s medical condition, it appears reasonable that his wife be able to support him during his evidence – this may also alleviate his stress such that he is better able to testify. The respondents’ concern with respect to excluding the applicant’s wife as a witness can be addressed by having her testify before the applicant.

22Even though, at this stage, I do not have enough information to grant the specific 3-hour accommodation request, if the applicant obtains more specific medical support for the request, he can renew his request. I would suggest that if further medical information is obtained that the parties could request a conference call with me to discuss hearing options. That could result in an order for frequent breaks, or potentially even a shortened day while he is giving his testimony or a change in venue to Toronto.

order

23Within 14 days of the date of this Interim Decision, the respondents shall advise the applicant the date(s) upon which he made the undated notes in the Respondents’ Book of Documents to Rely on at Hearing.

24The applicant’s wife may attend as a support person subject to paragraph 21, above. The further request for accommodation as set out above is denied, but can be renewed by the applicant if there is further medical information obtained, at which point the parties can arrange a teleconference call with the Tribunal to consider options for accommodations.