Thomsen v. Sault Area Hospital, 2016 HRTO 416

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louise Thomsen

Applicant

-and-

Sault Area Hospital

Respondent

-and-

Unifor, Local 1359

Intervenor

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: April 1, 2016

Citation: 2016 HRTO 416

Indexed as: Thomsen v Sault Area Hospital

APPEARANCES

Louise Thomen, Applicant

Iain Donnell Counsel

Sault Area Hospital, Respondent

Frank Angeletti, Counsel

Unifor, Local 1359, Intervenor

Fred Bond, Representative

1The purpose of this Interim Decision is to address the issue of the Tribunal’s jurisdiction to the allegations made in this Application that occurred more than one year prior to the date the Application was filed, and to provide the parties with directions for the next steps in this Application.

2In her Application the applicant alleges discrimination in employment on the basis of disability.

3This Application is scheduled to be heard in Sault Ste. Marie on April 4 and 5, 2016.

Delay

4In her Application the applicant refers to events beginning in 2008 and the last incident is described to have occurred in November 2014. It was not clear from the narrative of the Application whether the applicant was intending to pursue all these alleged incidents in her Application. The respondent made a Request for Order During Proceedings that all or part of the Application be dismissed as untimely. In Interim Decision, 2015 HRTO 970, the Tribunal determined that the applicant’s response to the respondent’s Request does not assist in that it tends to suggest that some of these earlier incidents are included as background to more recent events as opposed to incidents of discrimination for which the respondent may be liable. The Tribunal concluded that it would be most fair, just and expeditious to leave the delay issue to the hearing adjudicator to revisit this issue, if necessary, when the parties have completed their productions to each other and filed their hearing documents with the Tribunal.

5The parties have filed the documents they intend to rely on at the hearing and their witness statements. The applicant’s documents appear to only be relevant to the alleged incidents that occurred within one year of the date of filing the Application which was on April 20, 2015. However, the applicant did not file a witness statement for herself and stated that the applicant will say “evidence fully set out in the Application”. As well, the will say statements of the medical professionals that the applicant indicates she is calling, do not provide dates relevant to the evidence they will state.

6During a case conference call, applicant’s confirmed that the applicant was only proceeding on the allegations that occurred on or after April 20, 2014 and the Tribunal confirmed that it would only hear evidence that pertained to those incidents.

7The Application was therefore narrowed to the alleged incidents that occurred on or after April 20, 2014.

Adjournment

8During the case conference, the respondent raised issues with the fact that the nature of the Application has significantly changed and that the documents and witness statements filed may no longer accurately relate to the alleged incidents of discrimination that are to be heard by the Tribunal.

9In addition, the respondent raised the issue that the applicant had not provided a report or medical records and notes from the two medical professionals that the applicant has on her witness list. The applicant confirmed that these witnesses had been subpoenaed to attend on April 4, 2016 with the applicant’s medical files but the applicant could not be certain when it could provide copies of those documents to the respondent and the Tribunal.

10In the interests of fairness and efficiency, the Tribunal decided that the Application would be adjourned in order to allow the parties to serve and file documents and witness statements that were relevant to the issues that were now to be determined in the Application and to allow the parties to better prepare for a hearing of these issues.

ORDER

11The hearing of this Application is adjourned.

12The parts of the Application that involve incidents that occurred prior to April 20, 2014 are dismissed.

13By May 31, 2016, the applicant shall provide the respondent and the intervenor, and file with the Tribunal the following:

• A witness statement from the applicant that fully details the alleged incidents of Code violations that she is advancing including dates, places and other persons involved in the incidents, in accordance with Rule 17 of the Tribunal’s Rules.

• A witness statement from Pam Stubbs that fully details of the evidence she intends to state including dates, places and other persons involved in the incidents, in accordance with Rule 17 of the Tribunal’s Rules.

• A copy of Dr. David McPhee’s written report, or full summary of his proposed evidence, and his curriculum vitae, in accordance with Rule 17 of the Tribunal’s Rules.

• A copy of Dr. Chinedu Sunday Ogbonna’s written report, or full summary of his proposed evidence, and his curriculum vitae, in accordance with Rule 17 of the Tribunal’s Rules.

• All medical records, test results and clinical notes from the Dr. David McPhee from November 1, 2013 to December 31, 2014;

• All medical records, test results and clinical notes from Dr. Chinedu Sunday Ogbonna from November 1, 2013 to December 31, 2014; and

14By June 14, 2015 the parties shall provide to the Registrar mutually available dates for two consecutive hearing dates for the resumption of the hearing in Sault Ste. Marie between September 12 and 30, 2016 and October 12 and 29, 2016.

15Should the parties wish to serve and file amended books of documents and should the respondent wish to serve and file amended witness statements, these documents shall be served and filed at least 45 days prior to the first hearing date.