Kathleen Sandy v. Toronto Community Housing Corporation, 2016 HRTO 1279

Human Rights Tribunal of Ontario

Between:

Kathleen Sandy Applicant

-and-

Toronto Community Housing Corporation Respondent

Interim Decision

Adjudicator: Kathleen Martin Date: September 29, 2016 Citation: 2016 HRTO 1279 Indexed as: Sandy v. Toronto Community Housing Corporation

Written Submissions

Kathleen Sandy, Applicant Self-represented

Toronto Community Housing Corporation, Respondent Matthew Curtis, Counsel

1This is an Application alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision addresses a Request for Order During Proceedings ("the Request") filed by the respondent asking that the Application be declared abandoned by the Tribunal or in the alternative, that the Application be dismissed because the applicant has abused the Tribunal's process.

Background

2The applicant is an existing employee of the respondent and the Application arises out of a dispute about whether or not the applicant requires accommodation by way of a customized workstation.

3Some of the background facts relevant to the Request are set out in an earlier Interim Decision 2016 HRTO 572 ("Interim Decision") and will be briefly summarized again.

4The Application was scheduled for hearing on November 16 and 17, 2015. The applicant did not attend the hearing although she contacted the Tribunal in advance of the hearing advising that she was "mentally not able to deal with anything". The respondent requested that the Application be dismissed as abandoned because the applicant had failed to provide an acceptable explanation for her non-attendance at the hearing and to comply with the Tribunal's Rules of Procedure and directions.

5After hearing further submissions from the parties including in a subsequent conference call hearing, I dismissed the respondent's request. In the Interim Decision, I stated that the applicant had been participating in the process (albeit intermittently and not fully in accordance with the directions of the Tribunal). While accepting that the respondent had raised valid concerns, based on the applicant's submissions, I stated that the applicant appeared to genuinely confused about the process and what was expected of her and while indicating that I had some difficulty with this given the directions given, I did not conclude that her conduct up to the date of the decision was an intentional flouting of the Rules and the Tribunal's directions.

6In the Interim Decision, I also considered and denied the applicant's request to defer the Application to her ongoing related cases at the WSIB. In a Case Assessment Direction dated September 1, 2015, the Tribunal had previously denied the respondent's request to defer the Application on the same basis.

7The Interim Decision also issued directions to the applicant including that she comply with her disclosure requirements and produce an IME report and any medical documentation underlying the Application that had been requested by the respondent or if she opposed the request, file a response to the respondent's Request. In addition, the Tribunal directed that if the applicant was unable to comply with the directions for health-related reasons, that she file submissions in support of her position and include supporting medical documentation. The Tribunal warned that if the applicant did not comply with the directions by June 15, 2016, the Application may be dismissed as abandoned.

8The applicant did not file a response by the deadline of June 15, 2016.

9On June 24, 2016, it appears the applicant attempted to send an email to the Tribunal (copied to the respondent) responding to the Interim Decision. Among other things, the applicant apologized for not responding sooner stating that she was unable to do so, that she was sick and on "sick disability" (giving some particulars of her condition), that she is unable to provide the documents as they are with the WSIB and that once the WSIB decision is rendered, she will forward the information to "the office". The email was provided to the Tribunal from the respondent as the email had a typographical error in the address used for the Registrar.

10On July 12, 2016, the respondent filed this Request. The respondent relies on the applicant's conduct prior to and since the Interim Decision. In respect of the latter, the respondent submits that the applicant has failed to deliver the materials and to provide a compelling justification for her non-compliance or any supporting medical evidence. While the respondent submits that the applicant appears to be actively engaged in her parallel WSIB claims, the respondent does not appear to take issue with the applicant's claim that she is on "sick disability" which I presume refers to the applicant being on sick leave from her employment with the respondent. The respondent submits that it has limited financial resources and is incurring cost, organizational time and expense to defend the Application which the applicant does not appear to be pursuing. The respondent asks that the matter be addressed in a conference call.

11In further correspondence filed July 29, 2016, the respondent submits that it rejects the applicant's submission that she is too ill to participate as the applicant appears to be medically capable to participate in her active WSIB files. In support of this submission, the respondent relies on correspondence related to two WSIB claims (one of which is a notice of hearing dated July 18, 2016 scheduling a hearing in one claim for September 12, 2016 and a second letter which refers to a lawyer filing an Intent to Object Form on behalf of the applicant in respect of another WSIB claim on July 4, 2016). The respondent also notes that the Tribunal has twice denied the request to have the Application deferred pending the applicant's WSIB claims.

12The applicant has responded by email to the respondent's Request and subsequent correspondence stating that she does not have a copy of her "relevant documents" in her possession (reiterating that they are with the WSIB) and that she will give them to the Tribunal when the case with the WSIB is completed "if" she can get them. The applicant further states that she does not have an IME report as it was done by the respondent. The applicant identifies one of her witnesses by name and indicates that she will "produce" the WSIB union representatives as witnesses. The applicant does not address the state of her health in this submission.

Decision

13I find that the Request can be determined based on the submissions filed.

14While I continue to appreciate the respondent's frustration and concerns, I do not find it appropriate to dismiss the Application on the basis of abandonment and/or because the applicant has abused the Tribunal's process.

15There is no question that the applicant continues to not fully comply with the Tribunal's Rules and its directions in this proceeding. The Tribunal issued a number of directions in its Interim Decision and the applicant has only partially complied with these directions. In particular, the applicant has not filed her pre-hearing documents or the IME (asserting that she does not have the documents in her possession) and while the applicant has identified witnesses, she has not provided summaries of their evidence. I am sceptical of the applicant's reason for not complying with the direction to produce documents. Apart from the IME, which may be in a separate category, it is not clear to me why the applicant cannot request additional copies of her documents from her union or WISB if she did not retain a copy herself so that the documents can be filed in this proceeding.

16Nonetheless, I cannot reasonably conclude from the applicant's email communications that she has abandoned the Application such that she is no longer pursuing the Application. In my view, it seems clear that the applicant wishes to pursue the Application given that the applicant has identified witnesses and stated that she will provide the documentation after the WSIB matter concludes if she can get them. Further, I am mindful that the applicant filed some documents earlier in this proceeding on April 16, 2015 although it is unclear if these are the documents that she would be relying on at the hearing.

17I also do not find that the applicant's conduct justifies a dismissal based on abuse of process.

18As the Tribunal stated in Sharma v. Peel District School Board, 2016 HRTO 735 at para. 43, the doctrine of abuse of process is a preventative tool which allows the Tribunal to dismiss an application in circumstances where to carry on with the proceeding would bring the administration of justice into disrepute. This is a high standard. While in some instances, an applicant's repeated refusal to comply with Tribunal directions has resulted in dismissal, at this stage, I do not find it appropriate to dismiss the Application for what is, for the most part, the applicant being in default of disclosure obligations set out in the Rules and directed by the Tribunal. Instead, I find that there are other means to address the applicant's default.

19Under the Tribunal's Rules of Procedure, there may be limits placed on the evidence that a defaulting party is allowed to rely on. In particular, Rules 5.6, 16.4 and 17.4 state as follows:

5.6 Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate.

16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

17.4 No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.

20In the circumstances of this case, in the event the applicant seeks to present documents or witnesses in the hearing that have not been disclosed in accordance with the Tribunal's Rules and its directions, the parties should be prepared to make submissions on whether the applicant ought to be permitted to present such evidence.

21In reaching the above conclusions, I have considered the health-related information provided by the applicant and the respondent's rejection of the applicant's submissions that she is too ill to participate in the Application relying on the documents filed from two WSIB proceedings in the month following her submission. However, I do not find it fair, just and expeditious to schedule a hearing to determine this issue for several reasons. First, the correspondence does not reflect direct engagement on the applicant's part given the nature of the correspondence (a notice of hearing generated by the WSIB and correspondence reflecting that a lawyer filed a document presumably on her behalf). Second, the correspondence was generated after the applicant represented that she was ill. Third, as of the date of the applicant's last submissions, it does not appear that the applicant is justifying her non-compliance based on her health but rather that she does not have copies of the documents. Finally, I am not convinced that even if the applicant exaggerated her health difficulties, I would be inclined to dismiss the case as an abuse of process at this stage given the high threshold that must be met.

22This does not mean that ultimately there will not be consequences if the applicant continues to not comply with the Tribunal's directions. While the Tribunal gives some leeway to a self-represented party, in addition to what has already been set out above, if the applicant continues to fail to comply with the Tribunal's directions, the applicant may be at risk of having her Application dismissed.

Orders and Next Steps

23The Tribunal orders:

• the respondent's request that the Application be dismissed as abandoned or in the alternative, because the applicant has abused the Tribunal's process, is denied;
• the Registrar will schedule a one day hearing;
• the applicant shall be prepared to proceed first and present all the evidence that she wishes to place before the Tribunal in support of the Application (subject to the Tribunal addressing any objections by the respondent that the evidence was not disclosed in accordance with the Rules and directions of the Tribunal); and
• the respondent shall be prepared to cross-examine the applicant and any of her other witnesses that may be permitted by the Tribunal on the basis of the information provided in the Application and any other filings of the applicant.

24I would remind the applicant that if she needs assistance in understanding her obligations, the applicant may wish to review the Guide to Preparing for a Hearing before the HRTO available on the Tribunal's website at www.sjto.gov.on.ca/hrto, which includes information on assistance and representation.

25If the applicant fails to attend the hearing, the Application may be dismissed as abandoned.

Dated at Toronto, this 29th day of September, 2016.

"Signed By"

__________________________________

Kathleen Martin Member