Mettinen v. Toronto District School Board, 2016 HRTO 1584

Human Rights Tribunal of Ontario

B E T W E E N:

Nikko Mettinen Applicant

-and-

Toronto District School Board Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: December 8, 2016 Citation: 2016 HRTO 1584 Indexed as: Mettinen v. Toronto District School Board

WRITTEN SUBMISSIONS

Nikko Mettinen, Applicant Anna Kalinichenko, Counsel

Toronto District School Board, Respondent Gail Geronimo, Counsel

introduction

1This Application was filed on November 23, 2016. It alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision grants the applicant’s request to expedite so that the respondent must file its Response to December 23, 2016, and so that the process of scheduling mediation begins immediately.

background

2The applicant has amyotrophic lateral sclerosis (Lou Gehrig’s disease) and uses a wheelchair. His muscles are progressively weakening and he is afraid that he will soon lose the use of his hands. He enrolled last year and this year in a printmaking class at one of the respondent’s schools, hoping to live long enough to create and print certain projects to leave for his family, particularly to create and print invitations for a celebration of life. He alleges that the respondent failed to accommodate his disability at the school where he was enrolled in a printmaking class, and made it very difficult for him to attend classes and complete his work. He alleges that in the Fall of 2016, the respondent made it impossible for him to access the classes.

3The applicant filed with his Application a Request to Expedite and accompanying declarations by treating physicians. They confirm his condition and opine that he is in impending danger of serious health deterioration. The applicant requests that the time for the respondent to file a Response be reduced from 35 days to seven (7) days, and that the Tribunal schedule an urgent mediation. It is apparent that he feels that if the Application were expedited, particularly so that mediation occurs very soon, before his health deteriorates further, and while he is still alive, he still might complete the printmaking in which he says he has invested months of work.

4The respondent does not object to the Tribunal scheduling dates in an expedited manner, but does object to an abridgement of time to file a Response, pointing out that the allegations involve incidents that happened over a period of more than a year with numerous employees who need to be interviewed. The respondent also warns that the school holidays at the end of the year mean that it is unlikely to be able to obtain the information to respond to the Application, and file a Response, before January 9, 2016.

granting the request to expedite

5Rule 21.1 of the Tribunal’s Rules of Procedure provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances that require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application, and the harm that would result if the request is denied.

6In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53 at para. 9, the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

7In Ebrahimi v. Durham District School Board, 2009 HRTO 1062, the Tribunal noted that another basis for expediting an application may be where a requested (and arguably appropriate) remedy will be moot, or unavailable, without expediting an application.

8The Tribunal has in other decisions considered the health of the applicant in granting requests to expedite. See AK v. Peel District School Board, 2016 HRTO 799; XY v. Toronto Housing Connections, 2011 HRTO 1377; and Cymbalisty v. Wal-Mart Canada, 2009 HRTO 454.

9Having regard to all of the circumstances, and having reviewed the submissions and the declarations submitted in support of the Request to Expedite, the Request to Expedite is granted. I am satisfied that the applicant’s health issues are truly urgent circumstances that may affect the fair and just resolution of the merits of the Application if the Application does not proceed in an expedited manner. However, I am satisfied by the respondent’s submissions that the time for filing a Response cannot be significantly abridged. The due date for filing the Response is the day after which it appears all of the relevant employees will be on holiday - December 23, 2016. The date by which the applicant must file his Reply is January 4, 2017. Mediation shall be expedited as per my directions below.

directions

10In the circumstances, the parties are directed to immediately file their availability for a three-hour mediation the week of December 19-23, 2016, specifying whether they may attend in person or by teleconference. Counsel for the parties are encouraged to arrange together a date and time that week, and then notify the Tribunal. I note that the Response may not be filed until the last day of that week, but I also note that a settlement might affect the applicant’s access to classes beginning in January 2017. This is why the parties may wish to resolve the Application in December prior to the due date for the Response.

11If the parties are unavailable in December, or unwilling to mediate before a Response might be filed, then they must indicate their availability in January, 2017.

12If mediation is not successful, and the applicant wishes any further orders expediting the processing and hearing of the Application, he will need to file another Request to Expedite the Application.