Alex Kelly v. Ross Memorial Hospital, 2015 HRTO 24

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alex Kelly

Applicant

-and-

Ross Memorial Hospital

Respondent

DECISION

Adjudicator: Mark Hart

Date: January 8, 2015

Citation: 2015 HRTO 24

Indexed as: Kelly v. Ross Memorial Hospital

1This is an Application dated December 2, 2013 and completed January 15, 2014, alleging discrimination with respect to services because of disability, gender identity and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Notice of Rescheduled Hearing dated July 23, 2014, the parties were advised of their obligations under the Tribunal’s Rules of Procedure (the “Rules”) to make disclosure to each other of all arguably relevant documents in their possession by August 14, 2014 and to file a list of witnesses, witness statements and the documents upon which they intend to rely for the hearing by December 29, 2014 (subsequently extended to January 19, 2015). The applicant was specifically advised that if he did not disclose and file the requested documents, the Application may be dismissed.

3On August 19, 2014, the respondent wrote to the applicant to raise the issue of his failure to comply with his obligation to disclose all arguably relevant documents in his possession, and to request that he do so forthwith.

4The applicant replied by e-mail dated August 22, 2014 to express his belief that he had complied with his disclosure obligations. However, in this same e-mail, the applicant made reference to medical documentation that he intended to rely upon, which had not been disclosed. He also took the position that in the absence of real-time testing regarding his alleged allergic reaction to scents in the emergency room waiting area, “there is no point for me to provide any documentation simply for 'fodder' for the tribunal”.

5By Interim Decision dated November 24, 2014 (2014 HRTO 1692), I addressed the respondent’s requests to strike the applicant’s Reply on the basis that it raised new allegations that had not been set out in his Application and for removal of the personal respondents. I allowed the respondent’s request to remove the personal respondents and also allowed the request to strike the Reply in part and struck portions of the Reply that raised new allegations. I also set a timetable for the applicant to file a request to amend his Application if he wished to raise these new allegations in the context of the ongoing proceeding. No request to amend was filed by the applicant by the established deadline.

6In my Interim Decision, I also addressed the issue of the applicant’s disclosure obligations under the Tribunal’s Rules. I noted that I had reviewed the correspondence between the parties on this issue, and stated that, while the applicant may not intend to rely on materials beyond what he had described in his correspondence of August 22, 2014, his obligation to disclose all arguably relevant documents extends beyond those documents or materials upon which he intends to rely at the hearing. I noted that, for example, arguably relevant documents in the applicant’s possession would include:

a. All e-mail correspondence between the applicant and the Hospital regarding the events of August 15, 2013, his concerns about those events, the conference call of September 10, 2013, and the proposed treatment plan for his daughter;

b. All materials sent or received by the applicant regarding his needs or his daughter’s care during this period, including the document he sent regarding Doose Syndrome;

c. Any personal notes the applicant or anyone else present to assist him may have made regarding the events of August 15, 2013, the conference call of September 10, 2013 or other related events;

d. Medical documentation supporting that the applicant has a scent allergy and any needs he may have arising from any such allergy;

e. Medical documentation supporting that the applicant has a brain injury or any other medical condition that he alleges was not properly accommodated by the respondent Hospital in the context of the events of August 15, 2013, the conference call of September 10, 2013 or other related events, and any needs he may have due to brain injury or any other medical condition at issue; and

f. Any other documents in his possession that relate to the events of August 15, 2013, the conference call of September 10, 2013 or other related events.

7I accordingly directed the applicant to comply with his disclosure obligations under the Rules by making a list of all such relevant documents in his possession and providing this list and a copy of all such documents to respondent counsel by no later than December 8, 2014.

8By letter dated December 10, 2014, respondent counsel wrote to the Tribunal to advise that the applicant still had not complied with his disclosure obligations under the Rules and requested that the Application be dismissed on this basis.

9I wrote a Case Assessment Direction (“CAD”) dated December 23, 2014 to raise the applicant’s continued non-compliance with his obligations under the Rules and with the Order I had made in the Interim Decision. In this CAD, I noted that an Application under the Code commences a serious legal proceeding that imposes obligations on all parties. I stated that a party to a proceeding before this Tribunal cannot simply ignore their legal obligations without consequence. Having said that, I expressed my view that it would be appropriate to afford the applicant one final opportunity to comply with his disclosure obligations under the Rules and pursuant to my Order. Accordingly, I gave the applicant until January 5, 2015 to disclose his arguably relevant documents to the respondent, failing which his Application would be dismissed as abandoned and/or for failure to comply with a Tribunal Order.

10On January 6, 2015, respondent counsel wrote again to the Tribunal to advise that the applicant still had not complied with his disclosure obligations under the Rules or with the Tribunal’s Order.

11At this stage of the proceeding, the applicant has been afforded with four separate opportunities to comply with his disclosure obligations: first when the Notice of Hearing was issued; second when the issue was raised directly with him by respondent counsel; third when I made the Order in the Interim Decision; and finally when I provided the applicant with a final opportunity to comply with his obligations in the CAD. Despite these multiple opportunities to comply, the applicant has failed to do so and has failed to communicate in any manner with the Tribunal or the respondent in response to the Interim Decision or the CAD.

12In these circumstances, it is my view that the Application is appropriately dismissed as abandoned. The parties are relieved of any further obligations in this matter, and the hearing dates currently scheduled for February 9 and 10, 2015 are hereby cancelled.

ORDER

13For the foregoing reasons, I hereby make the following order:

a. The Application is dismissed as abandoned; and

b. The parties are relieved of any further obligations in this matter, and the hearing dates currently scheduled for February 9 and 10, 2015 are cancelled.