Myers v. York Region District School Board, 2016 HRTO 435

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Duane Myers

Applicant

-and-

York Region District School Board and Steve Bewcyk

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: April 7, 2016

Citation: 2016 HRTO 435

Indexed As: Myers v. York Region District School Board

WRITTEN SUBMISSIONS

Duane Myers, Applicant

Self-represented

York Region District School Board and Steve Bewcyk, Respondents

Patty Murray, Counsel

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

2The Application is scheduled for hearing on April 26 and 27, 2016. This Interim Decision responds to communications from the parties and provides direction about the hearing.

3Based on my preliminary assessment of the issues in the Application and the number of potential witnesses, it appears unlikely that this case will conclude within the two days that have been scheduled. Some of the directions provided in this Interim Decision assume that the hearing will likely have to continue on a subsequent day or days.

Scope of the Application

4The Application the applicant filed includes a narrative that includes events in the period from 2008 to 2009 which he indicates contributed to a medical leave in the period 2009 to 2011. The applicant returned to work in 2011 and alleges that he was subject to harassment and that the respondents failed to accommodate his disabilities to the extent he considered necessary. The applicant indicates that those issues have continued to date.

5In the Response to the Application, the respondents deny that the applicant experienced harassment or discrimination. The respondents submitted that all or almost all of the allegations relate to matters that occurred more than one year before the Application was filed and that they should be dismissed as untimely.

6Section 34 of the Code provides:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

7The applicant subsequently withdrew the Application as it related to allegations of harassment by two individuals who had been named as personal respondents to the Application. He indicated that they were responsible for the harassment he alleged and that he did not wish to pursue those allegations. The applicant did not specify whether this meant that he was not pursuing any allegations about the period from 2008 to 2011, but it appears that this was his intention.

8The Application was filed in June 2015. Any allegations about things that may have occurred before June 2014 happened more than one year before the Application was filed. The applicant can still pursue those allegations if they are part of a series of incidents, within the meaning of section 34(1)(b). The Tribunal has held that in most cases, a gap of more than one year between alleged incidents means that they cannot be considered to be a series of incidents.

9In this case, it appears to me that the allegations about events in 2008 and 2009 that the applicant says were at least part of the reason that he was off work for the following two years are not timely and cannot form part of the applicant’s allegations in the Application. In addition, as noted it is not clear that the applicant event wishes to advance allegations about this earlier period.

10Based on my review of the documents filed by the parties, it appears that the allegations about events following the applicant’s return to work in 2011 may be a series of incidents within the meaning of section 34(2)(b) and those allegations may form part of the applicant’s allegations in the Application.

Medical reports and the request that the doctors be produced as witnesses

11The respondent asserts that if the applicant wishes to rely on any medical opinion about the nature of accommodations he required, the applicant must produce the doctors for cross-examination. The respondent asserts that if the applicant does not produce his doctors as witnesses, I should give no weight to those portions of the medical reports regarding accommodation of the applicant. The respondent requests an order stipulating this.

12The respondent relies on Baber v. York District School Board, 2010 HRTO 538 which dealt with a similar request at paragraphs 19 – 22:

A central issue in this case is whether the respondent breached its duty under the Code to accommodate the applicant on the basis of disability by not assigning her to duties as a teacher-librarian and ESL teacher. In support of the claim that she required accommodation in such a position, the applicant relies on the medical reports noted above.

The contents of the doctors’ reports are very much in dispute and relate to a central issue in the Application. Natural justice requires that the respondent be given the opportunity to test the reliability and veracity of the applicant’s evidence by cross-examination. To permit the applicant to rely on the medical reports in question without making her doctors available for cross-examination would be unfair to the respondent because it would restrict and prejudice the respondent’s ability to test the case against it.

Accordingly, I ruled during the conference call that I would give no weight to those portions of the medical reports regarding accommodation of the applicant unless the doctors who wrote the reports were made available for cross-examination.

On the other hand, I was not prepared to exclude the medical reports from evidence altogether. When an applicant comes before the Tribunal alleging that the respondent breached its duty to accommodate her under the Code, she must establish that she asked the respondent for accommodation or otherwise triggered the procedural and substantive aspects of the duty to accommodate. If nothing else, the medical reports, which were submitted to the respondent at various points by or on behalf of the applicant, are relevant evidence on this issue. Accordingly, they are properly admitted into evidence for that purpose, even though I will give no weight to those portions of the reports regarding what, if any, accommodation was required by the applicant, unless she makes the doctors who wrote the reports available for cross-examination.

13As indicated in the last paragraph above, in a case where the allegations include a failure to accommodate a disability, medical reports are generally relevant. This is particularly true of any medical report that was provided to the respondent at the time.

14In my view, whether it is necessary to hear oral evidence from a doctor who has provided an opinion about accommodation of an applicant's disability will depend on the facts of the case. Sometimes it may be necessary to hear from a doctor but sometimes it will not. If it is necessary to obtain evidence from a doctor it is not always necessary that the doctor appear at a hearing as a witness. In Baber it was held that while it would be necessary to hear from the applicant's doctor if the doctor’s opinions about the accommodations that were required were to be given weight, the evidence could be provided by telephone. In other cases, it may be possible to obtain necessary clarification of medical evidence through correspondence.

15In this case, I am satisfied that it is not appropriate at this time to make an order requiring the applicant to produce his doctors for cross-examination or to make an order at this time concerning the weight that may be given to any medical opinion that has been expressed. In my view, these matters can be considered and dealt with after hearing at least the applicant’s evidence.

16In my view, the same thing applies to the request that the applicant disclose the clinical notes and records of his treating physicians.

17The respondent’s request that the applicant be ordered to produce his doctors at the hearing is denied at this time. The request for an order that no weight will be given to any medical opinion which has been provided regarding the applicant’s accommodation needs is also denied at this time. These matters will be reviewed as necessary at a later stage of the hearing. That review will include measures that are necessary to ensure that the hearing is fair. This could include recalling witnesses.

Disclosure of documents

18Both parties appear to allege that the other may not have disclosed all relevant or arguably relevant documents. Given the volume of documents that have been disclosed, I find that this is another issue that cannot be properly assessed at this time and can better be determined at a later stage in the hearing.

Direction about the hearing

19At the outset of the hearing, I will offer the parties my assistance in facilitating settlement discussions between the parties if they are interested in pursuing that option. Such discussions would be under the Tribunal’s mediation/adjudication process. A copy of the Tribunal’s mediation/adjudication agreement is provided with this Interim Decision.

20Assuming that the Application does not settle, the applicant will testify first. The applicant can either provide his evidence in chief directly or in response to questions that I will put to him to help me understand his case. After that I anticipate that the applicant will be cross-examined by the respondent’s counsel.

21The applicant has identified witnesses that he would like to call to support his case. He has not however provided any details about who these people are and what he anticipates they will say. The applicant is directed to provide a detailed witness statement setting out what he anticipates the witness will say if called at the hearing. These witness statements should be sent to the Tribunal and Ms. Murray by April 19, 2016.

22At some time before the conclusion of the applicant’s evidence, I will review with the parties the witnesses each proposes to call and determine what witnesses need to be called, what order they will be called and when they will be called. For this reason, it is not necessary that any witness be present at the outset of the hearing on April 26, 2016.