Sandra Sherbanowski v. Centennial College, 2016 HRTO 348

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Sherbanowski

Applicant

-and-

Centennial College

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: March 17, 2016

Citation: 2016 HRTO 348

Indexed as: Sherbanowski v. Centennial College

WRITTEN SUBMISSIONS

Sandra Sherbanowski, Applicant

Self-represented

Centennial College, Respondent

Dianne Jozefacki, Counsel

Introduction

1This Application 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”). The Hearing is scheduled for April 13 and 14, 2016. This Interim Decision deals with some of the issues raised in the applicant’s Requests for Orders. It also provides directions to the parties so that they have a better idea of what to expect at the hearing.

2The parties should note, however, that at the commencement of the hearing, the Tribunal will offer mediation-adjudication pursuant to Rule 15A of the Tribunal’s Rules of Procedure. If the parties do not agree to participate in mediation-adjudication, or if it fails to resolve the Application, then the hearing will proceed on April 13 and 14, 2016, and the parties are expected to have complied with the directions below by that time. Only the applicant will be expected to testify on the first day of the hearing, but the other witnesses must be prepared to testify on the second day in the event that mediation-adjudication is not successful.

requests for orders during proceedings

Applicant’s November 19, 2015 Request for Production

3On November 19, 2015, the Applicant filed a Request for Order During Proceedings for the following production:

(a) copies of any grant applications, contracts and agreements that the College has in regards to their disability office and services;

(b) lrene Volinets’ certification and qualifications;

(c) any taped telephone conversations regarding this matter and the recorded voicemails that the Applicant left to Sung Nahm and Ann Buller;

(d) any correspondence the College had with the teachers’ union regarding the Applicant;

(e) the name of the teachers’ union rep. that was spoken to;

(f) the Law Society of Upper Canada Licensee numbers of Patti Ann Sullivan, Dione Coley and other staff mentioned in this matter;

(g) any correspondence the College had with OSAP regarding the Applicant;

(h) any correspondence the College had with security in regards to the Applicant;

(i) copies of any performance reviews or complaints received from students of the staff mentioned in this matter;

(j) any reports and training procedures the staff had undertaken for disability training; and

(k) outlines of the College’s disability training procedures.

4The respondent filed a Response to a Request for an Order.

5On December 9, 2015, the applicant filed an amended Request for Order During Proceedings that provided some argument for some of the above productions requests. In an email sent immediately afterwards, the applicant appears to confirm that this amended Request for Order during Proceedings is to replace the one filed November 19, 2014. In the amended Request, the applicant does not appear to provide argument to support her requests pertaining to subparagraphs d), e), and g) – k) above, but in the event this is not the case, I will address each one of those requests. The respondent relies on its previously filed Response to a Request for an Order to address the amended Request by the applicant.

6As regards the specific request described in subparagraph a) above, the respondent explained that it has already disclosed to the applicant her entire file from the Centre for Students with Disabilities (“CSD”). Assuming that the applicant meant the CSD when she referred to the documents “in regards to their disability office and services”, I understand that the respondent has already provided the documents that might contain what the applicant is seeking. Unless the applicant can demonstrate during the hearing that a document exists that was excluded from the documents in her CSD file already provided, the Tribunal will refuse her request for production listed in a) above.

7As regards the specific request described in subparagraph b) above, the applicant argues:

The applicant is requesting that the respondent produce lrene Volinets’ certification and qualifications, and feels this is relevant as under the law only certain people are to be designated as custodians of personal health information and only certain people with certain qualifications are to handle psychological reports.

8The respondent argues that lrene Volinets’ certification and qualifications are not relevant to the Application. It appears that the applicant wishes to show that Ms. Volinets had no right to see her personal health information. It is not clear to me how this is relevant to the allegations made in the Application, but the applicant may renew her request for production in the event that information arises in the cross-examination of Ms. Volinets which the Tribunal finds makes her qualifications relevant.

9As regards the specific request described in subparagraph c) above, the respondent claims that it does not have any audio recordings of voicemail messages other than the ones that were already disclosed through transcripts to the applicant – a written transcript of voicemail messages left by the Applicant on December 17, 2013 and January 20, January 22 and February 4, 2014. As the Tribunal cannot order the respondent to produce material that does not exist, and the applicant has not demonstrated that other recordings exist, this request for recordings other than the ones made on the above dates cannot be granted. The applicant argues that transcripts of the voicemail messages left by her on the above dates will not disclose “the tone of the applicant’s voice during these voicemails that will show the level of panic and distress that the respondent was putting the applicant in when she delivered these calls.” Given that this tone may arguably be relevant, the respondent is ordered to deliver to the applicant by March 29, 2016 one copy of the audio recording of these voicemail messages. If the applicant decides to rely on any audio recording during the hearing, then she must file a copy with the Tribunal, but she is responsible for making such a copy for the Tribunal. She must also advise the Tribunal that audio equipment will be required at the hearing if she decides to rely upon an audio recording.

10As regards the specific request described in subparagraph d) above, the respondent claims that it has already provided such documentation to the applicant to the extent any of these records exist. As the respondent claims it has provided to the applicant all correspondence with the teachers’ union in its possession, and it does not appear that the applicant can demonstrate otherwise, her request for production described in d) above is refused.

11As regards the specific request described in subparagraph e) above, it is not clear from the respondent’s Response to a Request for Order whether it has already provided the applicant with all the names of union representatives with whom its employees spoke, or just some of the names, but the applicant has provided nothing to explain the relevance of the names, or the evidence the union representatives would add to address the allegations made in the Application. Therefore I refuse this request.

12As regards the specific request described in subparagraph f) above, I cannot see how the Law Society of Upper Canada “Licensee numbers” of the respondent’s employees involved with the applicant has any relevance to the Application. The applicant appears to argue that if the respondent’s employees or professors were lawyers, or perhaps paralegals, then they have a more onerous duty to meet the requirements of the Code than if they were not. Given that the duty of the respondent to accommodate disability under the Code applies to employers whether or not their employees or professors are lawyers or paralegals, I refuse this request.

13As regards the specific request described in subparagraph g) above, the respondent states that the applicant has the right to obtain any such documents from the respondent’s Student Financial Services directly, and obtaining the documents is in her control. In the event that she demonstrates that the respondent is wrong about her right to do so, then the Tribunal will revisit this request at the hearing.

14As regards the specific request described in subparagraph h) above, the respondent claims that it has already provided any correspondence the College had with security in regards to the applicant. As the respondent claims it has provided to the applicant all correspondence with security in its possession, and it does not appear that the applicant can demonstrate otherwise, her request for production described in h) above is refused.

15As regards the specific request described in subparagraph i) above, it would appear that the applicant is fishing for any complaints about her professors. It appears that the applicant is curious as to whether there exists similar fact evidence to support her allegations. However, the circumstances and events that are related to the allegations are, for the most part, with respect to an alleged failure in accommodating the applicant’s very unique needs arising from her disability. The hearing of the Application is not an opportunity for the applicant to demonstrate that the respondent’s professors were unpopular, but instead it is an opportunity for her to demonstrate that they failed to accommodate her, regardless of whether they have or have not accommodated others. In the absence of any argument as to why the documents sought are relevant, and given the broad scope of this request, it is refused.

16As regards the specific request described in subparagraph j) above, the respondent argues that no such documents exist. The applicant has not argued that such a document does exist. This request is therefore refused, although, in the event that remedy becomes an issue, the applicant will be permitted to elicit the training practises of the respondent through the cross-examination of its witnesses.

17As regards the specific request described in subparagraph k) above, the applicant is seeking outlines of training procedures that the respondent does not believe exist. In the event that remedy becomes an issue, the applicant may further explain what she means by this request and renew it at the hearing.

Applicant’s February 25, 2016 Request

Request to have David Sherbanowski Assist in Representation

18On February 25, 2016, the applicant filed another Request for Order During Proceedings. In it, she seeks permission to have her brother, David Sherbanowski, assist her in representing herself.

19The applicant may have a support person with her to assist in her representation as long as that person does not later seek to become a witness. It appears that the only member of the applicant’s family who she intends to have testify is her mother, who, I understand, was present during meetings with the respondent. The applicant’s mother will not likely be permitted to attend the hearing while other witnesses testify, given my inclination to make an order excluding witnesses so that they do not hear the evidence provided by others. However, in the case that a party may wish to make submissions on the issue at the commencement of the hearing, I will reserve this decision until then.

Request to Remove Colour and to Add Other Grounds

20The applicant also seeks to amend her Application to remove the alleged ground of colour, and to add sexual harassment and/or harassment because of gender or sex. It appears that her request to add the allegation of harassment arises because she has recently listened to a recording of an interview with a professor, and the applicant now believes a reference to her appearance justifies such an amendment.

21The respondent does not appear to oppose the applicant’s request to remove the ground of colour, and that request is granted.

22The respondent does oppose the applicant’s request to add sexual harassment and/or harassment because of gender or sex. It argues that the request is made well after the applicant accessed the recording and should therefore be denied on that basis. I also note that there are insufficient particulars provided by the applicant for me to assess whether there is no reasonable prospect of success for what appears to be a single comment constituting harassment of any kind. If there were no reasonable prospect of success, this amendment would not be granted. The applicant’s request to make these additional allegations will be dealt with at the commencement of the hearing.

Request to Amend Remedy

23Similarly, the applicant’s request to amend her remedy section of the Application will be dealt with at the commencement of the hearing. The parties must be prepared to address whether the hearing should be bifurcated. Bifurcation would mean that the Tribunal would deal with remedy only if the Tribunal, after hearing the witnesses testify about the alleged events, were to decide that the respondent violated the Code.

Applicant’s responsibility in filing documents upon which she intends to rely at the hearing

24As the Tribunal notified the parties in the October 22, 2015 Notice of Hearing, under Rules 16 and 17 of the Tribunal’s Rules of Procedure, the parties were obliged to provide the following things by no later than February 29, 2016:

a. a list of the documents they intend to rely on at the hearing (these are the documents that you have chosen to put before the Tribunal from among the documents previously disclosed by both parties) – to one another and to the Tribunal;

b. copies of each of these documents for the Tribunal; and

c. a list of the witnesses with witness statements setting out the intended evidence of each witness – to one another and to the Tribunal.

25The applicant confirmed that she will be calling two witnesses – herself and her mother – and has provided a witness statement for her mother. The applicant appears to have filed a “Book of Authorities” in several volumes. Many of the documents in them do not appear to be relevant to the Application, and it is not clear which ones she intends to rely on at the hearing. The applicant appears to acknowledge that her documents are not clearly those upon which she intends to rely at the hearing, and says that her disability prevents her from being organized in a timely way, but the applicant has had four months since the respondent provided her with its arguably relevant documents to comply with her obligations, and the hearing is now fast approaching.

DIRECTIONS TO APPLICANT

26By no later than March 29, 2016, the applicant must deliver to the respondent and file with the Tribunal a bound volume that contains only the documents she intends to rely upon at the hearing in presenting her evidence through her witnesses or the respondents’ witnesses. Any case law, statutes or doctrine that she intends to rely upon in her closing argument should not be included. If the Application does not settle through mediation-adjudication, and the hearing proceeds, then the applicant will later be able to file documents to support final argument (as opposed to evidence).