A.B. v. Joe Singer Shoes Limited, 2016 HRTO 1083

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.B.

Applicant

-and-

Joe Singer Shoes Limited, Paul Singer and Buy-A-Hammer Investments Inc.

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: August 15, 2016
Citation: 2016 HRTO 1083
Indexed as: A.B. v. Joe Singer Shoes Limited

WRITTEN SUBMISSIONS

A.B., Applicant

Emily Shepard, Counsel

Joe Singer Shoes Limited, Paul Singer and Buy-A-Hammer Investments Inc., Respondents

Arnold Zweig, Counsel

Introduction

1This Application alleges reprisal and discrimination with respect to employment because of race, colour, place of origin, ethnic origin, disability, sex, sexual solicitation or advances, family and marital status and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application was deferred in Interim Decision, 2010 HRTO 1053, and reactivated in Interim Decision, 2016 HRTO 40, dated January 12, 2016.

3A hearing is scheduled for September 8 and 9, 2016 in Toronto.

requests for orders during proceedings

4This Interim Decision addresses the applicant’s two July 26, 2016 Form 10 Requests for an Order During Proceedings (“applicant’s RFOP”) and the respondents’ August 3, 2016 Request for an Order During Proceedings (“respondents’ RFOP”) for the following:

a. The applicant requests an Order permitting her to amend her Application to increase the amount of the monetary remedy sought;

b. The applicant requests hearing accommodation; and

c. The respondents request an adjournment of the hearing.

5This Interim Decision does not address the respondents’ request for the exclusion of certain evidence because the time for the applicant to file her Form 11 Response to that request has not passed.

Amendment to Remedy

6The applicant asks that the amount of compensation for injury to dignity, feelings and self-respect be increased from $50,000 to $200,000.

7The requested amendment is permitted in accordance with the test in Wozenilek v. 7-Eleven, 2009 HRTO 926, by “taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice.”

8The Tribunal regularly grants requests to amend remedies. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050.

9With respect to the timing of the request, the applicant made the request more than 6 weeks before the hearing.

10With respect to the nature of the amendment and the prejudice to the respondents, the respondents argue they would have prepared for the hearing differently had they known of the increased damages. The respondents do not explain how their preparation would differ. In addition, although they assert prejudice they do not explain what it is that constitutes that prejudice. They mainly argue that the monetary award sought is not appropriate because it differs from the case of O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 in which the Tribunal awarded $150,000 for injury to dignity, feelings and self-respect.

11In permitting the amendment, the Tribunal is not making any decision with respect to the appropriateness of the remedy sought. There is no prejudice to the respondents.

Hearing Accommodation

12The applicant requests hearing accommodations as follows:

a. That she be permitted to testify, in the presence of a support person and her counsel, via video technology from a different hearing room than where the personal respondent is, with the applicant not able to see the personal respondent but with the personal respondent and his counsel able to see her; and

b. That she be permitted to take breaks as required.

13The applicant alleges sexual harassment by the personal respondent. She has been followed by a psychiatrist and psychologist since 2008 for a major depressive disorder and post-traumatic stress disorder, which she alleges resulted from the personal respondent’s actions against her.

14The applicant’s psychiatrist provided a letter, dated May 31, 2016, in which he opined that the applicant will be unable to provide reliable testimony if she is in the same room as the personal respondent. He wrote in part:

[The applicant’s] symptoms include memory disturbance, worsening anxiety, sadness and low energy, hypervigilance and anxiety. She has always found it extremely anxiety provoking talking about her initial trauma at her former place of work. I think she would clearly be unable to keep her composure and cognitive clarity if she had to be in the same room as her former employer.

15The applicant also requests that she be permitted to have a support person present. The applicant points to Dr. Bart’s January 19, 2009 report that indicates that because the applicant is afraid to be alone with a male, she meets with her psychiatrist in the presence of a female social worker.

16Although the respondents advised in correspondence to the Tribunal, dated July 27, 2016, that they intended to object to the applicant being in a separate room while she testified, they did not file a Form 11 Response to a Request for an Order During Proceedings, and the time for doing so has now passed.

17With 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 her 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. The Tribunal requires information that will satisfy it that a request for accommodation is linked 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.

18In this case, there is sufficient evidence of the applicant’s requirement of being permitted to testify via videoconferencing from a room separate from the personal respondent, and there was no objection from the respondents. The accommodation is granted.

19The applicant will be permitted to take breaks as required.

20With respect to the applicant having a support person present while she gives her evidence, given the applicant’s medical condition and the lack of any objection from the respondents, it is reasonable that this be permitted. It may assist with alleviating the applicant’s symptoms so that she is better able to testify.

Respondents’ Request for Adjournment

21The Notice of Hearing was sent to the parties on May 6, 2016.

22The Tribunal’s Practice Direction on Scheduling states as follows about adjournments and adjournment requests:

If the parties are able to agree on alternative dates, one party must advise the HRTO Registrar in writing within 14 days of the Notice of Confirmation of Hearing. The HRTO will make every effort to schedule the hearing for dates provided by the parties. […]

The HRTO discourages requests for adjournment outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournment, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. When the request is on short notice, the party must contact the Registrar by email or fax.

23As set out in the Practice Direction, and as confirmed in the Tribunal’s decisions, adjournments are only granted in exceptional circumstances. The Tribunal has explained its rationale for taking such positions in a number of cases including Vallentyne v. Royal Canadian Legion, 2009 HRTO 660. At para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceedings must consider, but the fact that Tribunal time reserved for the resolution of those parties’ disputes will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five [now fourteen] days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of the parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five [now fourteen] days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

24In this case, the respondents requested an adjournment on August 3, 2016 based on the requests to amend the remedy and for accommodation, and also because when the applicant delivered her documents to be relied on at the hearing on July 26, 2016, she stated that she was seeking others, which would be provided when they became available. She explained that these documents included notes from the University Health Network (“UHN”) and Dr. Bart, the Community Care Access Centre (“CCAC”) and Dr. Price; additional documents from the police who investigated the applicant’s complaints against the personal respondent; and the applicant’s WSIB file.

25The respondents submit they may wish to call additional witnesses or provide additional documentation in response to any additional documentation provided by the applicant; will require additional time to review the late documents; and that it would be prejudicial to them not to adjourn the hearing.

26The respondents also argue that their preparations for this claim that potentially involves $200,000 in damages for injury to dignity, feelings and self-respect will involve more work, concentration and effort than if the damages claimed are $50,000.

27The applicant opposes the adjournment request. She asserts that the respondents failed to meet the deadlines for the disclosure of their arguably relevant documents and for providing witness statements and documents to be relied on at the hearing, and she is concerned that the respondents are attempting to delay the hearing.

28The applicant argues that the respondents did not meet the requirements set out in the Tribunal’s Practice Direction on Scheduling, and that the three reasons they provide for the adjournment request do not constitute exceptional circumstances.

29The applicant submits she made her request for hearing accommodation and an amendment to the remedy claimed in her Application in a timely manner on July 25, 2016. She submits the respondents have not explained how the Tribunal’s decision with respect to hearing accommodation or an increase in the remedy claimed will alter their hearing preparation, and that the same testimony will be required.

30With respect to the additional disclosure of documents, the applicant submits that the additional documents are as follows:

a. CCAC records;

b. Additional documents in relation to the criminal case against the individual respondent;

c. UHN records;

d. Dr. Bart’s records; and

e. ODSP documentation.

31The applicant does not mention Dr. Price’s records, and it is not clear to the Tribunal whether she intends to obtain these.

32The applicant argues the additional documents are not central to the case against the respondents, but she has sought them in order to be able to make full disclosure to the respondents.

33Specifically with respect to the CCAC records, these relate to the home care the applicant receives and are peripheral to her condition which is fully summarized in the documents from her psychiatrist and other medical practitioners.

34With respect to the criminal file, relevant documents have already been disclosed, including the charging document and the interview with the applicant. The applicant sought additional information to try and locate contact information for witnesses, and advises she is content with the witness statements she has provided and therefore is no longer seeking this information for any specific purpose in this case.

35With respect to the UHN records, the applicant advises that she received them on August 8, 2016 and will be providing them to the respondents and to the Tribunal this week.

36With respect to Dr. Bart’s records, these were sought for the purpose of making full disclosure to the respondents. The applicant points out she already has provided Dr. Bart’s reports.

37Finally, with respect to the applicant’s ODSP documentation, the applicant submits this document confirms the applicant’s income since her WSIB was discontinued, and can be provided if required.

Analysis and Decision – Adjournment

38With respect to the three reasons for the respondents’ request for an adjournment, I find that none of these constitutes exceptional circumstances for the reasons that follow.

39The applicant made her request to amend her Application more than 7 weeks before the hearing. As indicated, the Tribunal is not taking any position on the appropriateness of the remedy sought. In addition, the respondents did not explain how their hearing preparation would differ if the monetary remedy sought increased.

40The respondents filed one witness statement on August 8, 2016 in accordance with my Case Assessment Direction, dated July 27, 2016, directing the respondents to file their documents to be relied upon at the hearing and their witness statements by no later than August 8, 2016. This was after the applicant requested this amendment to the Application, and two weeks after the deadline set out in the March 3, 2016 Notice of Hearing. In addition, the respondents have delivered no documents to the Tribunal (although it appears the applicant may have received some or all), despite the Notice of Hearing advising the parties that the documents to be relied on at the hearing were to be delivered to the Tribunal by no later than July 25, 2016 and the subsequent CAD advising the respondents that their hearing documents were due by no later than August 8, 2016.

41The amendment does not constitute an exceptional reason that warrants an adjournment of the hearing.

42The respondents’ second reason for requesting the adjournment relates to the applicant’s request for hearing accommodation. However, the respondents filed no Form 11 Response to a Request for Accommodation, and therefore no explanation of how, if her request is granted, which it is, this would affect the hearing such that the respondents would require an adjournment. This also does not constitute an exceptional circumstance.

43Finally, the applicant’s late document disclosure potentially could constitute a reason for an adjournment. However, in considering the parties’ submissions, I find that these particular documents will not be prejudicial to the respondents such that an adjournment is required.

44This hearing is set for two days and, if it proceeds, it will require additional days. If there are documents that the applicant submits late to the respondents that they require additional time to review, they can make further submissions at the hearing, if necessary.

45The respondents’ request for an adjournment is denied.

order

46The Tribunal makes the following orders:

a. The Application is amended to increase the claim for monetary compensation for injury to dignity, feelings and self-respect to $200,000;

b. The applicant shall be permitted to testify in a separate room from the personal respondent and shall be visible to the respondents, but the respondents shall not be visible to the applicant;

c. The applicant shall be permitted to have a support person with her while she testifies;

d. The applicant shall be permitted to take breaks, as required, during her testimony;

e. The request for an adjournment of the hearing is denied;

The respondents, by no later than August 22, 2016, shall deliver to the Tribunal (and to the applicant if not already delivered) their documents to be relied on at the hearing to the Tribunal and file with the Tribunal a Form 23 Statement of Delivery evidencing delivery of them on the applicant.