HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Aaron Sherman
Applicant
-and-
Her Majesty the Queen in the Right of Ontario as represented by the Ministry of Community Safety and Correctional Services Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Sherman v. (Community Safety and Correctional Services)
WRITTEN SUBMISSIONS
Aaron Sherman, Applicant
Tess Sheldon, Counsel
Her Majesty the Queen in the Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Respondent
Jordana K. Joseph, Counsel
introduction
1This Application, alleging a breach of settlement, 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 and directs next steps.
background
2The applicant has a disability which requires that he provide self-care with special equipment, including when he is incarcerated in any of the respondent’s detention centres. He filed an Application in 2014 alleging that the respondent failed to accommodate his special needs arising from his disability. The parties executed Minutes of Settlement in March of 2015 to govern the accommodation in the case that the applicant finds himself incarcerated again. The applicant was incarcerated again, more than once, and he alleges that the respondent breached certain terms of the Settlement by not following the accommodation it promised.
3The applicant filed a Request to Expedite and accompanying documents by treating physicians. They confirm his condition and need for self-care with equipment. The applicant wants his Application expedited because he believes that he will soon find himself incarcerated again in the respondent’s facilities, and he believes that the respondent has shown that it has breached and will continue to breach the agreement to supply him with the means for self-care which has resulted and will continue to result in serious harm, including inappropriate solitary confinement and extremely degrading and unhygienic conditions that are dangerous to his mental and physical health.
4The applicant also filed a declaration by a community service worker who confirms that the applicant is regularly incarcerated. Subsequent documentation filed by the parties indicates that the applicant was incarcerated numerous times over the past two years, sometimes for weeks and sometimes for days. In 2016 alone, the applicant was incarcerated three times in the Spring and once for two weeks in August.
5The respondent takes no position with respect to the Request to Expedite, but maintains its position that there was no breach of the Settlement.
granting the request to expedite
6Rule 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.
7In 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. The Tribunal has considered the health of the applicant in granting requests to expedite. See XY v. Toronto Housing Connections, 2011 HRTO 1377; Cymbalisty v. Wal-Mart Canada, 2009 HRTO 454; and Mettinen v. Toronto District School Board, 2016 HRTO 1584
decision
8Having regard to all of the circumstances, and having reviewed the submissions and the documents submitted with respect to the Request to Expedite, the Request to Expedite is granted. I am satisfied that the hearing of this matter is urgent given the seemingly high likelihood that the applicant will find himself incarcerated again in the early part of 2017, his health issues and the potentially serious physical and mental harm that may result to him if accommodation is not provided. These 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. .
directions
9This week, the Tribunal will issue a Notice of Hearing for two dates in 2017 for which the Tribunal is able to book an adjudicator and a hearing room. Those dates shall not be before February because the parties are directed to exchange all arguably relevant documents by January 15, 2017, and file all documents upon which they intend to rely by January 31, 2017. Also by January 31, 2017, the parties must file summaries of what they anticipate their witnesses, including the applicant, to say.
10I am not seized.
Dated at Toronto, this 22nd day of December, 2016.
“Signed By”
Mary Truemner
Vice-chair