Human Rights Tribunal of Ontario
Between:
Brenda Daugherty Applicant
-and-
Shoppers Home Health Care Canada Inc. Respondent
Reconsideration Decision
Adjudicator: Brian Cook Date: August 23, 2016 Citation: 2016 HRTO 1114 Indexed as: Daugherty v. Shoppers Home Health Care Canada Inc.
Written Submissions
Brenda Daugherty, Applicant Self-represented
Shoppers Home Health Care Canada Inc., Respondent Samantha Crumb, Counsel
1This Decision concerns the applicant’s request that the Tribunal’s Decision 2016 HRTO 696 (“the Decision”) be reconsidered. The Decision dismissed the Application as abandoned after the applicant failed to call in to a telephone conference call hearing.
2In the Request for Reconsideration (“the Request”), the applicant states that she was unable to call in due to health problems. She describes a number of conditions that resulted in significant disability, including an inability to read and impaired concentration. The applicant indicates that she was aware that there was a telephone conference call scheduled but she could not find the details. She states that she called the Tribunal on more than one occasion but was unable to speak to someone in order to get details.
3The respondent opposes the applicant's Request. The respondents note that the applicant has not provided any documents to verify that she was prevented from participating in the conference call because of disability. The respondent further notes that it has already devoted considerable time and resources to responding to the Application.
Conclusions
4When an Application has been dismissed as abandoned after the applicant fails to attend a hearing, a request for reconsideration may be favourably considered when the applicant was unable to attend the hearing, or to call in to a telephone conference call hearing, because of disability. There is no dispute that the applicant has a disability. While it is true that the applicant has not provided documentation to prove the disabilities that she outlines in her Request, and while I am sympathetic to the respondent’s concerns, for the purpose of this Decision, I accept that the applicant intended to participate in the telephone conference call hearing but was unable to do so because of disability and because she was unable to obtain information about the details of the hearing.
5The request for reconsideration is granted.
6On further review of the Application, I find that it is appropriate to expand the issues for the hearing. The Tribunal’s Case Assessment Direction of September 25, 2015 identified the issue of whether the present Application should be dismissed as an abuse of process because the applicant had signed a full and final release stating that she would not bring an Application relating to the events giving rise to an earlier Application. The respondents assert that the present Application does relate to the events that gave rise to the earlier Application.
7If the Application is not dismissed for that reason, it is not clear how the applicant will be able to show that the events that she alleges in the present case involve an infringement of her Code-protected rights.
8When the Tribunal is not clear how an applicant will be able to prove allegations of discrimination, the Tribunal may hold a summary hearing. The Tribunal’s Practice Direction on Summary Hearings states:
A summary hearing usually considers:
- whether, assuming all of the allegations are true, the Application has no reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation; and/or
- whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.
9A summary hearing allows an applicant to explain what evidence she will rely on to show that the respondent’s infringed her Code-protected rights. If the applicant cannot explain how she will establish that her rights were infringed, the Application may be dismissed as having no reasonable prospect of success.
10In my view, the issues to be determined in this case should include the question of whether the Application should be dismissed as having no reasonable prospect of success, in addition to the question of whether the Application is an abuse of the Tribunal’s process.
11The Registrar will schedule a telephone conference call hearing. The purpose of the hearing is to determine if the Application should be dismissed as having no reasonable prospect of success and/or if it should be dismissed as an abuse of process.
Dated at Toronto, this 23rd day of August, 2016.
“Signed By”
__________________________________
Brian Cook Vice-chair