A.T.A. v. Houselink Community Homes, 2016 HRTO 1357

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.T.A.

Applicant

-and-

Houselink Community Homes and

Canadian Apartment Properties Real Estate Investment Trust (CAPREIT)

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: October 19, 2016

Citation: 2016 HRTO 1357

Indexed as: A.T.A. v. Houselink Community Homes

WRITTEN SUBMISSIONS

A.T.A., Applicant

Self-represented

Houselink Community Homes, Respondent

Jessica DiFederico, Counsel

CAPREIT, Respondent

Kristin Ley, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to accommodation (housing) because of disability.

2The applicant self-identifies as a person living with a cluster of disabling conditions. She alleges that the respondents have failed to make the necessary modifications to her apartment to accommodate her disability-related needs.

3The respondent CAPREIT is an investment trust with interests in multi-residential properties, including apartment buildings located in or near major urban centres across Canada.

4The respondent Houselink leases 12 bachelor units at a residential complex owned by CAPREIT, including the apartment where the applicant resides.

5The respondents deny the applicant’s allegations and argue that they have done everything they can to accommodate the applicant.

Decision

6The Application was filed in 2011 and since that time, many steps have been taken by the Tribunal and the parties to accommodate the applicant in a supportive hearing process. Over the course of a significant period of time, the applicant has failed to meet numerous deadlines for providing the Tribunal with medical information which would assist the Tribunal in creating accommodations to the hearing process. The applicant recently filed two medical reports which indicate that she is incapable of dealing with this Application for the foreseeable future. The applicant has refused to attempt to find someone who could stand in her place and move the Application forward on her behalf or meet with a lawyer at the Human Rights Legal Support Centre. In all of the circumstances, I have concluded that the applicant is incapable of moving her Application forward in the hearing process and therefore the Application should be dismissed.

Background

Submissions of the Respondents

7The Tribunal issued a CAD dated April 27, 2016, inviting submissions from the parties as to whether the Application should be deferred indefinitely or dismissed. Both respondents filed written submissions supporting dismissal. The applicant filed notes from two medical advisors supporting deferral.

8Both respondents have set out a detailed chronology of the action and inaction taken with respect to this Application since it was commenced. I have reviewed that history and agree that it is correct and should be incorporated in this decision. A summary of that chronology follows below.

9The Application was commenced in September 2011. The allegations date back to February 2010. At the time of the filing of the Application, the applicant was represented by counsel.

10In October 2011, the Application was put on hold until January 2012 at the request of the applicant’s counsel for the purpose of exploring settlement discussions. By January 2012 the applicant was no longer represented by counsel. She indicated that she would be filing either an amended Application or a new Application. On March 14, 2012, an extension was granted for the purpose of the applicant revising her application before the filing of the Responses. A new or amended Application was never filed.

11The respondents filed their Responses in early April, 2012.

12On June 29, 2012, the applicant was granted an extension to August 7, 2012 to file a Reply. The applicant indicated that she was in the process of retaining new counsel through Legal Aid. On August 6, 2012, the applicant requested another extension to file her Reply citing circumstances beyond her control. An extension was granted to September 7, 2012 to file a Reply. The applicant did not file a Reply or retain counsel. She requested that the Application be temporarily suspended.

13On November 9, 2012, the parties were advised that a mediation was scheduled for February 27, 2013. In December 2012, the applicant requested that the mediation be cancelled so that she could file new information with the Tribunal. The Tribunal declined to cancel the mediation because the nature of the request did not constitute an exceptional circumstance. The day before the mediation the applicant left a voicemail message indicating that she would not be attending the mediation.

14The Tribunal directed the parties to provide new dates for the mediation by March 5, 2013. The applicant did not respond either to the respondents or the Tribunal. The respondents conferred with one another on dates and attempted to make contact with the applicant, who did not respond. On March 5, 2013, the respondents provided their dates. On March 14, 2013, the applicant responded that the respondents’ dates were not convenient for her but did not suggest alternate dates. The Tribunal directed the applicant to provide five dates by March 22, 2013, failing which the Application would be scheduled for hearing. The applicant did not respond to the direction.

15On April 15, 2013, the Tribunal again requested the applicant’s availability for mediation. The applicant responded on April 16, 2013, requesting that the Application be suspended pending health improvements. The applicant did not provide the Tribunal with any medical information to assist the Tribunal in understanding her accommodation needs and to support her request to suspend the Application. The applicant was advised to file a Form 10 for her request or provide dates for mediation by May 2, 2013. On May 7, 2013, the applicant requested that she be permitted until May 13, 2013 to file the Form 10, which was never filed.

16On May 24, 2013, the Tribunal sent the parties a Notice of Hearing indicating that the hearing was scheduled for December 18, 2013. The parties were required to disclose arguably relevant documents by June 7, 2013. The respondents complied with their obligations under the Rules. The applicant did not comply.

17On October 22, 2013, the applicant requested that the Application be held in abeyance because of health issues she was experiencing. The applicant did not provide any medical documents to support her request. The respondents opposed the request. A case management conference call was held on December 10, 2013 to address the request. The applicant was asked what accommodations she required to participate in the hearing process. Mediation-adjudication was offered and the parties subsequently agreed.

18On January 17, 2014, a conference call was held to determine how to structure the mediation-adjudication process to accommodate the Applicant. The applicant indicated that as a result of her health, she was unable to comply with rules and deadlines. She also indicated that she would be unable to participate in in-person discussions and that although the Tribunal might schedule a mediation-adjudication session by teleconference, she would not know until that day whether she would be well enough to participate. The applicant agreed to provide a list of issues for resolution with the respondents by January 30, 2014 to move the mediation forward. The applicant did not file any material on that date. On May 11, 2014, the applicant provided a list of issues to be addressed in mediation-adjudication.

19On July 15, 2014, the parties participated in a conference call. The applicant raised concerns about her ability to continue the application without assistance. She was advised to get in touch with the Human Rights Legal Support Centre for assistance. There was also a discussion about section 34(5) of the Code, which would allow another individual (a social worker or other person who is familiar with the applicant’s needs) to pursue the Application on behalf of the applicant. These suggestions were made because it was clear that the applicant was either unable or unwilling to provide the information necessary to move the mediation portion of the mediation-adjudication process forward.

20Following the call on July 15, 2014, the Tribunal issued a CAD dated July 21, 2014, directing the applicant to provide the Tribunal with information about the nature of her disabilities and how her disabilities affect her housing needs, by September 15, 2014. The applicant was consulted before this date was set, however, she did not file submissions by that deadline.

21On September 15, 2014, the applicant requested an extension to October 3, 2014. The Tribunal advised the applicant there would be no further extensions, barring exceptional circumstances, supported by medical evidence, and that if the applicant was unable to file written submissions she could contact the Registrar to arrange to make her submissions orally through the Bell Relay Service.

22The applicant did not file her materials on October 3, 2014, nor did she request an extension of time to do so. On October 9, 2014, the Tribunal made arrangements for the applicant’s submissions to be made orally through the Bell Relay Service on that same date. On October 14, 2014, the Tribunal advised the respondents that the applicant was almost finished her submissions, and granted another extension to October 14, 2014. The applicant amended her submissions on October 16, 2014.

23Responding submissions were received from the respondents on December 1, 2014. The respondents raised questions about the extent of the applicant’s disabilities and the connection between those disabilities and the accommodations sought. The respondents requested an opportunity to conduct a multi-disciplinary assessment on the applicant to determine the extent of her disabilities and how they could be accommodated.

24On January 7, 2015, the Tribunal directed the applicant to provide her position on the multi-disciplinary assessment by January 31, 2015. The CAD indicated that the assessment would assist in determining how best to accommodate her needs. The applicant did not file submissions nor did she request an extension by January 31, 2015.

25On March 25, 2015, the applicant wrote to the Tribunal indicating that her health was improving and that she would be able to file a response to the January 7, 2015 request shortly. The applicant was given until April 10, 2015 to provide her position on the multi-disciplinary assessment.

26On April 9, 2015, the applicant requested an extension to May 4, 2015, and provided a number of reasons for her inability to meet the April 10, 2015 deadline, including the fact that she did not have legal representation; her elderly father was in hospital; April 10 is Greek Orthodox Good Friday; and she was scheduled to appear at the Landlord and Tenant Board on April 27, 2015. The applicant requested a deadline of May 4, 2015. The respondents agreed to a shorter extension to April 13, 2015. The Tribunal denied the extension request.

27On April 10, 2015, the applicant wrote to the parties and the Tribunal advising that she would not be retaining legal counsel to assist her in providing submissions regarding the multi-disciplinary assessment because it was “not feasible”. She indicated that based on her previous experience, the Human Rights Legal Support Centre “does not meet her needs”.

28I issued a CAD on April 13, 2015. The CAD indicated that the applicant was given three months to respond to a single question about her willingness to participate in a multi-disciplinary assessment which would assist the respondents and the Tribunal in understanding her accommodation needs. I concluded that the mediation process was unlikely to result in a resolution and the Application should be scheduled for a hearing. I directed the applicant to provide, within 90 days, a medical report with sufficient information to understand the applicant’s medical needs and how those needs could be accommodated in the hearing process. The CAD indicated that the Tribunal was not in possession of any medical reports which would assist in the creation of an accommodated hearing process. I indicated that if the medical note was not provided, the Application may be dismissed as abandoned. The applicant did not comply with this deadline.

29On July 13, 2015, the applicant wrote to the parties and the Tribunal indicating that she required an extension until at least the end of September, 2015. The applicant advised that attempting to find a lawyer to represent her was one of her top priorities. She advised that she had received the appropriate forms from Legal Aid Ontario in order to secure proper representation. The respondents opposed the request for a further extension and asked that the matter be dismissed as abandoned.

30On July 20, 2015, the applicant wrote to the Tribunal in response to the request to dismiss. She indicated that she had just been discharged from hospital; that she would be faxing some medical and legal documentation that day following a medical appointment; that she had been attempting to obtain a legal aid certificate and legal representation; and that the matters before the Tribunal are complex and the applicant is very vulnerable with significant legal, emotional and medical issues to contend with.

31On July 21, 2015, the applicant wrote that she would fax the necessary documents that night. On July 22, 2015, the applicant left a voicemail with the Tribunal indicating that she was unable to fax the documents and that she was exhausted and dehydrated.

32On October 1, 2015, the applicant faxed the parties and the Tribunal indicating that she was in the process of retaining Pinto Wray James LLP through a Legal Aid certificate.

33On November 2, 2015, the applicant telephoned the Tribunal to advise that her Legal Aid file had been lost and she was re-submitting her information. The applicant indicated that the law firm of Pinto Wray James LLP had agreed to represent her pending receipt of her legal aid certificate. She also indicated that she was attempting to obtain a doctor’s note in relation to her accommodation requests but her OHIP card has expired and that will result in further delay.

34On November 4, 2015, the applicant phoned the Tribunal regarding an outdoor light which had been installed and which was disrupting her sleep. She asked that the other issues in her Application be placed on hold until the issue of the outdoor light was resolved. She requested an immediate order that the light be switched off and requested a telephone hearing in that regard. The Tribunal advised her that her call would be noted, but that all requests had to be made with a Form 10.

35On November 13, 2015, I issued a CAD setting out the history between April and November. I asked that the law firm of Pinto Wray James LLP advise the Tribunal within 10 days of how much time it would need to address the outstanding issues from previous Case Assessment Directions. If the applicant did not ultimately retain counsel or if counsel did not respond, then the Tribunal would deal with the outstanding request to dismiss the application.

36On November 20, 2015, Robert Tarantino of Pinto Wray James LLP indicated that this office was in the process of being retained subject to receipt of a Legal Aid Certificate, which was not yet issued by Legal Aid Ontario.

37The respondent CAPRIET requested documentation to show the status of the Legal Aid Certificate as well as documentation to show that the original application was lost as alleged. No documentation was provided.

38On December 1, 2015, the Tribunal issued a CAD directing that Mr. Tarantino advise the Tribunal when he was retained. If he was not retained within 30 days, the applicant was to provide an explanation for the delay.

39On December 21, 2015, the applicant left a voicemail for the Tribunal advising that she was told by Legal Aid Ontario that it would take well into January for a decision to be made on the certificate. She indicated that Legal Aid Ontario required more information which she was submitting to them.

40On February 8, 2016, the Tribunal advised the parties that it had been contacted by the applicant on January 5, 2016 and February 2, 2016. The applicant advised that her uncle had passed away on December 23, 2015. She was not able to provide the requested information to Legal Aid Ontario because of her uncle’s passing and because her apartment apparently did not have heat.

41On February 9, 2016, I issued a Case Assessment Direction in which it noted that it would be of assistance if Mr. Tarantino would provide an update by February 26, 2016 as to the status of the Legal Aid Certificate and whether he expected to ever be retained. I indicated that the information provided by the applicant about the status of her legal aid application was inadequate to evaluate her request for further delay. I stated:

If the applicant is unable to complete the requirements to get a legal aid certificate, and unable to comply with any of the Tribunal’s request for information, the Tribunal will need to consider whether the Application should be dismissed or deferred indefinitely. The Tribunal’s requests for medical and other information from the applicant are directed at establishing an appropriate and supportive hearing process. I recognize that the applicant is dealing with a cluster of disabling symptoms, but she has not provided any medical support for the ongoing delay or any information which would assist the Tribunal in designing a process to move this Application forward to a final resolution.

42On February 26, 2016, the applicant advised the Tribunal that she was “in bad shape due to unforeseen circumstances”. She was unable to provide documents to Mr. Tarantino and requested a one-week extension in that regard. The applicant indicated that she was in bed immobilized, there were two recent deaths in her family and she was dealing with another legal matter.

43The respondent Houselink wrote to the Tribunal on March 23, 2016, requesting that it consider whether the Application should be dismissed.

44On March 24, 2016, the applicant left a message for the Tribunal providing the same information which she had provided a month earlier. She indicated that she was in bad shape, had not been able to provide the documents to Mr. Tarantino and requested a one-week extension.

45On April 14, 2016, the respondent CAPREIT noted the ongoing delay and asked that the Tribunal dismiss the Application in accordance with its previous Case Assessment Direction.

46On April 18, 2016, the applicant advised the Tribunal that there was delay in responding to the Tribunal and respondents because she was having difficulty obtaining a medical appointment and her medication was no longer working.

47On April 27, 2016, the applicant advised the Tribunal that Mr. Tarantino was away from the office, returning the following week. She indicated that upon his return he would update the parties as to her situation. She also indicated that she was experimenting with new medication and was unable to focus on the Application in the interim.

48On April 27, 2016, the Tribunal issued a Case Assessment Direction indicating that if communication was not received by Mr. Tarantino by May 6, 2016, the respondents could provide submissions on whether the application should be dismissed or deferred until such a time that the applicant was able to comply with the Tribunal’s request for medical support to develop an accommodation plan.

49On May 6, 2016, Mr. Tarantino wrote to the parties and the Tribunal advising that he was not retained by the applicant and did not represent her. He asked that he not be sent further correspondence on the issue.

50On May 18, 2016, the Tribunal requested submissions on whether the Application should be deferred indefinitely or dismissed unless the Applicant is able to comply with the Tribunal’s request for medical support to develop an accommodation plan.

The Applicant’s Submissions

51The applicant filed two letters in support of her position that the Application should be deferred indefinitely and not dismissed: one from a medical doctor and one from a social worker.

52The applicant filed a medical note dated May 24, 2016, attached to a letter to the Tribunal dated June 29, 2016. The letter indicates that the applicant will file a second medical note from a second doctor following an appointment July 19, 2016, although a second note was not received. The May 24, 2016 medical note is signed by Dr. Wood Hill, General and Forensic Psychiatry. The note indicates that Dr. Hill has recently started seeing the applicant, that her history is complex and includes a number of debilitating physical and psychological difficulties. He states that because of this the applicant is unable to focus on tasks, make and follow through on actions effectively, has been and remains compromised. Her basic tasks of daily living are poor, and she has not been able to respond as requested to issues related to her involvement with the Tribunal. He supports her request for a deferment of the application.

Going forward, this lady does not feel able to capably represent herself at hearings; I agree and advise assistance through legal counsel or other professional assistance.

In addition, with the above-noted problems of focussing, she would not be able to properly attend to, or concentrate on the matters before her over an extended period of time. Shorter hearings over a period of time, if possible would help.

53The applicant filed a second letter dated May 25, 2016 from Justin Pomeroy, a social worker with West Toronto Housing Help Services. Mr. Pomeroy indicated that he had been providing the applicant with a range of case management and eviction prevention services since May 2013. He writes that the applicant has a history of complex health and mental health issues and that these issues have often interfered with her ability to accomplish the tasks of daily living and maintaining appointments with her health care providers. Mr. Pomeroy indicates that the applicant’s health and mental health issues appear to have gotten worse. He states that until the applicant’s varying health and mental health conditions stabilize and symptoms become more manageable, the applicant is not in a position to pursue her Application. He requests that the Application be deferred indefinitely to allow the applicant to focus on improving her physical and mental well-being.

Timing of the Decision

54This Decision was being prepared for release in September 2016 when the applicant contacted the Tribunal. She left a voicemail on September 14, 2016 requesting that a decision not be issued for the next few days. The applicant indicated that she was on suicide ideation watch, her doctors were on holiday and she was struggling to look after herself. She reported that she would be meeting with her doctors the following Monday and Tuesday and would be making further submissions. The time for filing had passed; however, out of an abundance of caution, I held this decision back for one month. The applicant has not contacted the Tribunal since her voicemail message of September 14, 2016.

Analysis

55Section 40 of the Code reads as follows:

The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

56It is clear that the applicant will not be able to participate in the hearing of the Application she commenced for an indefinite period. There is no accommodation that the Tribunal could offer which would make it possible for the applicant to participate effectively. At the same time, I must consider that the delay of five years has been prejudicial to the respondents, who have done everything they can to cooperate in creating an accommodated hearing process.

57I would not describe this as an abuse of process or a form of abandonment. It is simply a reality of the administrative law system that not every person will have the capacity to initiate and manage a legal process. For that reason, the Tribunal Rules provide that an applicant may have another person stand in their place where they are unable to manage the hearing process on their own. In this case, the applicant refuses to pursue this possibility, but that is her choice and I would not find that she has abandoned this Application because of that choice.

58If and when the applicant becomes well enough to proceed, she may file a new application like any other person. This decision may not be raised as a bar to filing a new application in relation to some or all of the same facts. A new application may be out of time and it will be up to the presiding adjudicator to determine whether there is a series of incidents that renders the new application timely or whether the applicant has demonstrated a good faith reason for failing to file her allegations within the one-year limitation period under the Code. The adjudicator is also likely to consider whether the applicant is able to demonstrate an achievable plan for moving the new application forward.

59I consider dismissal a fair, just and expeditious approach to dealing with this Application, which has been outstanding for more than five years. It resolves the fairness concerns of the respondents while emphasizing that the applicant is not at fault for her inability to pursue this Application. It takes the pressure off the applicant to move this Application forward while she is attempting to focus on her health. The applicant’s right to file a new application is preserved subject to the presiding adjudicator’s findings with respect to timeliness.

60Having considered all of the circumstances, I order that the Application be dismissed.