King v. Sherbourne Mental Health Centre, 2016 HRTO 24

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy King

Applicant

-and-

Sherbourne Mental Health Centre and Melanie Oda

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: January 7, 2016

Citation: 2016 HRTO 24

Indexed As: King v. Sherbourne Mental Health Centre

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 goods and services because of disability.

2This case was scheduled for hearing on January 15, 2016. In a Case Assessment Direction issued on November 23, 2015, the Tribunal cancelled the merits hearing and directed that a summary hearing be held to determine whether or not some or all of this Application ought to be dismissed because all or part of it has no reasonable prospect of success. The summary hearing is scheduled to take place by telephone conference call on January 15, 2016.

3On December 15, 2015, the applicant filed a Request for Order During Proceeding (“Request”) dated December 14, 2015, seeking an Order deferring this Application pending the conclusion of another proceeding he had just launched (on or about November 29, 2015).

4In Interim Decision 2015 HRTO 1734, issued on December 24, 2015, the applicant’s Request was denied.

5On December 29, 2015, the applicant requested an adjournment of the summary hearing for medical reasons. The applicant provided a letter from his family physician in support of the request, dated December 15, 2015.

6The respondent was requested to respond to the Request by December 31, 2015.

7The respondent responded and opposes the Request.

8The Request is denied at this stage because I am not satisfied that the applicant has met the burden of establishing an inability to fairly participate in the summary hearing.

9I note in particular the following facts, only some of which are known to the respondent in this case. I note that the applicant’s family physician states in a letter dated December 15, 2015 that his medical issues make it “essentially impossible” for the applicant to engage in activities requiring focussed cognition. He also states that the applicant “cannot medically proceed in dealing with the preparations required for his hearing.” In contrast to this evidence, the applicant has been quite active in pursuing a number of issues both in his various Applications at this Tribunal and in other legal forums. As the parties are aware the applicant has made a complaint in respect of his allegations in this case to the College of Psychotherapists. He has also filed a number of Requests for Order During Proceeding (Requests) in several of his other Applications at this Tribunal seeking to have various Decisions issued in those cases anonymized. Additionally, the Request for Deferral that the applicant filed with the Tribunal on December 15, the same date of his doctor’s letter, made no mention of any medical basis for his deferral request. It did include full legal submissions addressing the Tribunal’s jurisprudence on deferral in the context of concurrent legal proceedings, along with supporting case law. The focus and clarity of these legal submissions completely contradicts the information included in the medical note of the exact same date. I also find it significant that the adjournment request was only submitted after the deferral request (which if successful would have effectively amounted to an adjournment) was denied. I am also advised that the applicant fully participated in mediation at the Tribunal on Monday, January 4, 2016. Finally, I observe his ongoing, active and coherent participation post-December 15 in this case, including a number of emails complaining about an administrative error on the part of the Tribunal in delivering materials to counsel on another file as well as his most recent communications with respect to this adjournment request. I find that these various activities are inconsistent with the symptoms his family physician describes as limiting his ability to participate in the scheduled hearing in this case.

10The applicant may renew his Request with medical information that can explain how the applicant is capable of these many other legal activities but not able to participate in a summary hearing. Amongst other issues, the applicant should be prepared to address how he was able to file legal submissions on other issues and participate in mediation before the Tribunal but is not able to participate in a summary hearing. It is important to note in this respect that summary hearings are very different in nature from a full merits hearing; evidence is not presented at a summary hearing and the issue for the applicant is limited to explaining how he intends to prove discrimination by the respondent without any medical evidence to explain the nature of his disability and/or how those needs were impacted by the decision taken by the respondent at the material time.

11The summary hearing will proceed as scheduled.

12I am not seized.