Stewart v. Ingenia Polymers Corp., 2016 HRTO 192

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Stewart

Applicant

-and-

Ingenia Polymers Corp.

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: February 10, 2016

Citation: 2016 HRTO 192

Indexed as: Stewart v. Ingenia Polymers Corp.

WRITTEN SUBMISSIONS

John Stewart, Applicant

Wade Poziomka, Counsel

Ingenia Polymers Corp., Respondent

Zain Naqi, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability.

2Broadly speaking, this case centres on the respondent’s decision to remove the applicant from a position provided to him to accommodate his disability-related restrictions effective July 15, 2014 and place him on medical leave. The applicant’s position is that he could perform the duties of the accommodated position; therefore, the respondent’s decision amounted to discrimination because of disability. The respondent’s position is that the medical information available to them indicated that the applicant had new restrictions that prevented him from performing the duties of his position in a safe and efficient manner and there were no other positions within the applicant’s restrictions.

Request to Adjourn

3The hearing of this Application is scheduled for March 2 and 3, 2016. By e-mail message dated February 4, 2016, the applicant requested that the Tribunal adjourn the hearing. The applicant submitted that the applicant retained new counsel in mid-December 2015, but he did not receive his file from his previous counsel until late January 2016. At that time, counsel determined that the respondent had not disclosed any documents related to its review of positions to determine if there were any that were consistent with the applicant’s restrictions (as described at paragraph 17 of the respondent’s Response). The applicant submitted that he requested disclosure of these documents from the respondent, but has not received a response. The applicant submitted that the applicant cannot properly prepare for hearing without these documents, as he has no information regarding the review the respondent states it undertook and cannot obtain an expert report regarding whether any position considered by the respondent is within the applicant’s restriction. The applicant submitted that he had consented to the respondent’s request for disclosure of medical information and that disclosure regarding only one of the applicant’s physicians remained outstanding.

4The respondent responded to the applicant’s request by e-mail later on February 4, 2016. The respondent submitted that it received the applicant’s request for additional document only the week before, i.e., almost six weeks after the applicant retained new counsel, and is considering the applicant’s request. For its part, the respondent submitted that it had also been almost six weeks since applicant’s counsel agreed to the respondent’s request for medical disclosure. The respondent submitted that it required this disclosure in order to obtain an expert opinion, as stated in the respondent’s Request for an Order During Proceedings seeking medical disclosure, which was filed on November 26, 2015. The respondent submitted that it will not be able to deliver an expert report in time for the hearing in March, and, accordingly, agrees that an adjournment of the hearing is necessary.

Analysis and Decision

5For the reasons that follow, the request to adjourn is denied.

6The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments provides that requests to reschedule must be made within 14 days of receiving the Confirmation of Hearing and that outside that time adjournments will be granted only in extraordinary circumstances, such as illness of a party, witness or representative. Accordingly, the Tribunal grants adjournment sparingly regardless of the consent of the other parties. In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, The Tribunal stated at paragraph 4:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

7The situation described by the applicant does not amount to extraordinary circumstances that warrant the adjournment of the hearing. The materials in the Tribunal’s file indicate that applicant’s counsel was retained not later than December 9, 2015. However, there is nothing before me that indicates that counsel took any proactive steps to obtain the respondent’s disclosure of arguably relevant documents, e.g., requesting them from the respondent, despite the fact that the next disclosure deadline was fast approaching. Rather, the applicant and his counsel waited until the applicant’s former counsel delivered the applicant’s file in late January 2016, at which point they determined that the respondent’s disclosure was in their view incomplete. Having said that, any documents related to the respondent’s review of potential positions for the applicant are clearly arguably relevant and must be disclosed, but the remedy for the applicant’s lack of proactivity is not an adjournment.

8While I appreciate that the respondent has not received all of the applicant’s medical disclosure, the inability to deliver an expert report in time for the hearing is not in my view a reason not to begin the hearing as scheduled. Given the nature of this case, the applicant shall necessarily be required to present medical evidence to counter the respondent’s position that he was unable to perform the essential duties of his position, as well as his own testimony. I expect that this evidence will take at least the first two days of hearing, particularly if the parties participate in Mediation/Adjudication pursuant to Rule 15A of the Tribunal’s Rules of Procedure. Accordingly, I do not expect that the respondent shall present any witnesses in the first two hearing dates. If the parties cannot produce expert reports prior to commencement of hearing, then they will produce them well in advance of continuation dates to avoid prejudice to each other. With respect to experts, the central issue in this case is whether the applicant could perform the essential duties of his position, or any other position the respondent may have had available. Accordingly, it appears that the case turns on the evidence of the respondent’s personnel and it advisers who determined that the applicant could no longer work for the respondent and the applicant’s physicians who, apparently, do not agree with that assessment. In these circumstances, it is not entirely clear how expert testimony will be helpful. The parties may speak to this issue at the hearing.

9The request to adjourn is denied. The parties shall immediately comply with their obligations pursuant to Rules 16.2, 16.3, 17.1, 17.2 and 17.3 (subject to my comments, above). The respondent shall also immediately disclose any documents created or considered during its review for other positions that may have been suitable for the applicant, subject to any submissions the respondent may make about the arguable relevance of such documents.

Order

10The Tribunal orders as follows:

1. The request to adjourn the hearing is denied;

2. Within 7 days of the date of this Interim Decision the parties shall comply with their obligations under Rules 16.2, 16.3, 17.1, 17.2 and 17.3 (subject to caveat set out in paragraph 8, above);

3. Within 7 days of the date of this Interim Decision the respondent shall disclose to the applicant any documents created or considered, including job descriptions and functional ability requirements, during its review for other positions that may have been suitable for the applicant conducted after it received Dr. Karpilow’s report; and,

4. Should the respondent disagree with the order set out in paragraph 10(3), above, then it shall file with the Tribunal and deliver to the applicant written submissions setting out its objection (including how such documents are not arguably relevant) by the end of business on February 12, 2016.

Mediation/Adjudication

11As noted above, Mediation/Adjudication pursuant to Rule 15A of the Rules is available to the parties during the hearing should the parties wish to attempt to settle the matter without further litigation. As is my normal practice, I shall offer Mediation/ Adjudication to the parties at the outset of the hearing and, accordingly, I would be grateful if the parties would consider in advance of the hearing whether they are willing to participate in Mediation/Adjudication.