Taucar v. University of Western Ontario, 2015 HRTO 380

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Haruyo Taucar

Applicant

-and-

The University of Western Ontario, Donna Pennee and Lisa Ann Korab

Respondents

B E T W E E N:

Haruyo Taucar

Applicant

-and-

Western University

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: March 25, 2015

Citation: 2015 HRTO 380

Indexed as: Taucar v. University of Western Ontario

1This Interim Decision is issued further to my Interim Decision dated March 4, 2015 and in anticipation of the hearing in this matter, which is scheduled to commence on May 4, 2015.

2In response to correspondence from applicant counsel dated March 10, 17 and 19, 2015, the Tribunal already has addressed the applicant’s requests for me to be removed as the assigned adjudicator in this matter and those requests have been denied. In particular, the Request for Reconsideration that was delivered by the applicant to the Tribunal under cover of letter dated February 26, 2015 was assigned to me to determine in the normal course, and the content of the Request for Reconsideration was dealt with by me as the assigned adjudicator in this matter in my Interim Decision dated March 4, 2015.

3Nothing new has been raised by the applicant that merits any change to that decision. I am aware that the applicant has indicated her intention to commence an application for judicial review regarding the Tribunal’s denial of her requests. Whether or not she does so is entirely up to her. But as stated in my last Interim Decision, unless and until a deferral or stay of this proceeding is granted, the hearing will commence and proceed on the scheduled dates and the Tribunal expects all parties to comply with their disclosure and filing obligations under the Rules.

4As all parties have indicated that they are available for the continuation of the hearing in this matter on June 10, 11, 12 and 30, 2015, these hearing dates are now confirmed in addition to the already scheduled hearing dates on May 4 and 7, 2015. The hearing on June 10, 11, 12 and 30, 2015 will take place in London commencing at 10:00 a.m. on each of those days.

5In correspondence from applicant counsel dated March 19, 2015, the applicant has made submissions in respect of deferral pending anticipated judicial review proceedings and due to the applicant’s disability. In respect of the first basis for deferral, the Tribunal already has considered the applicant’s various requests for me to be removed as the assigned adjudicator and already has dismissed these requests. As these issues already have been dealt with, they do not support any deferral of this matter.

6In support of the applicant’s request for deferral due to her disability, the applicant has provided a letter from her treating physician dated March 16, 2015 strongly recommending that the hearing be delayed “if there will be court proceedings to challenge any of the Tribunal’s decisions so that there is no possibility that [the applicant] may have to re-attend a hearing for the same matter”. This in my view does not provide a proper basis for deferral of this proceeding, as it presupposes that the decisions made by the Tribunal in this matter are in error, that these decisions would be overturned on judicial review, and that a new hearing would be required and the applicant would have to testify twice. In my view, this is entirely speculative and without merit, given the decisions already made by the Tribunal in this matter.

7The physician’s letter also states that the applicant believes that I have a conflict of interest in the case and that bias arises. As a result of these beliefs, it is stated that the applicant “will suffer additional damage to her mental health at the prospect of facing what she believes to be an unfair hearing or further legal proceedings”. As a consequence, the physician recommends that another adjudicator be assigned to the case. In my view, this is not a proper request for deferral or accommodation. The applicant’s allegations of a reasonable apprehension of bias on my part already have been fully addressed and have been dismissed. Whether or not she continues to believe that I am biased when in fact I am not does not provide any proper basis for the applicant to achieve by another means what she was unsuccessful in achieving by raising allegations of a reasonable apprehension of bias that have been found to be without merit.

8In the letter from applicant’s counsel dated March 19, 2015, it is stated that “the applicant’s condition has deteriorated to such a point over the last several months with no sign of improvement, thanks in part to Mr. Hart’s misconduct, that she now asks for a delay of several months in any event until at least the end of December 2015 in order to give her a chance to recuperate.” This is not stated in or supported by the physician’s letter dated March 16, 2015.

9Accordingly, the applicant’s request for deferral of this proceeding is denied and the hearing will proceed as scheduled, subject to the initiation of any application for judicial review and the granting of a stay by the court.

10The physician’s letter also requests that accommodations be made to minimize the time that the applicant is required to attend the hearing. It is requested that the proceedings be recorded so that the applicant does not have to attend the hearing when she is not testifying. Applicant’s counsel also makes this request on the basis that English is the applicant’s second language and recording the proceedings would allow her to review them according to her ability and as her disability will permit. This request is granted.

11The physician’s letter also requests any accommodation to lessen the time for the applicant to testify, such as allowing her counsel to read documents into evidence rather than the applicant. As stated in my Interim Decision dated March 4, 2015, I do not need anyone to read documents into evidence. I certainly am prepared to do what I can to minimize the time required for the applicant’s testimony, while preserving the fairness of the proceeding for all parties.

12Finally, the physician’s letter also requests that the applicant be allowed to testify on the first day, and be questioned starting immediately afterwards, and that the documents later be read into evidence so she does not have to attend. As stated above and in my Interim Decision dated March 4, 2015, I do not need anyone to read documents into evidence. The applicant will testify on the first day of hearing on May 4, 2015 and I have set out my expectations in my last Interim Decision regarding the amount of time required to complete examination-in-chief and cross-examination of the applicant, so that her evidence will be completed by the end of the hearing day on May 7, 2015.

ORDER

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

a. The applicant’s request for deferral of this proceeding is denied;

b. In addition to the already scheduled hearing dates on May 4 and 7, 2015, the hearing also will continue on June 10, 11, 12 and 30, 2015 in London commencing at 10:00 a.m. on each of those days; and

c. The Tribunal will record the hearing as an accommodation for the applicant and will provide all parties with a digital file of each day’s recording as soon as reasonably practicable.