HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Renee Kwan
Applicant
-and-
Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community Safety and Correctional Services and the Ministry of Economic Development, Employment and Infrastructure
Respondent
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Kwan v. Ontario (Ministry of Community Safety and Correctional Services)
WRITTEN SUBMISSIONS
Renee Kwan, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community Safety and Correctional Services and the Ministry of Economic Development, Employment and Infrastructure, Respondent
Felix Lau, Counsel
1The applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her with respect to employment because of various grounds under the Code.
2On December 9, 2015, the Tribunal issued a Notice of Hearing to the parties, which informed them that the hearing was scheduled for April 18 and 19, 2016.
3On March 4 and April 7, 2016, the applicant filed letters from her health care providers, which stated that she was unable to participate in an in-person hearing because of health reasons, and requested, as an accommodation, that there be a written hearing instead.
4On March 4, 2016, the respondent filed a letter, which objected to the applicant’s request for a written hearing because it would be deprived of the opportunity to test the credibility of the applicant’s allegations through cross-examination. The respondent stated that the hearing should be adjourned until the applicant is medically cleared to participate in an in-person hearing.
5In my view, the applicant’s request for a written hearing to accommodate her health-related needs cannot be granted. The Tribunal’s procedure for accommodating Code-related needs during the hearing process is set out in Rule A5.1 of the Social Justice Tribunals Ontario Common Rules:
A party, representative, witness or support person is entitled to accommodation of Human Rights Code-related needs by the tribunal and should notify the tribunal as soon as possible if accommodation is required.
6Rule 3.5 of the Tribunal’s Rules of Procedure also provides that the Tribunal may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate.
7However, s. 43(2) of the Code and Rule 3.5 also provide that an Application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions. Although the applicant is willing to waive her right in this regard, the respondent is not. Furthermore, it is clear from the parties’ pleadings that there are important factual issues in dispute which require that witnesses testify under oath or affirmation, and be examined and cross-examined.
8In the circumstances, it would be contrary to the Code and the Tribunal’s Rules, as well as a denial of procedural fairness to the respondent, to grant the applicant’s request to conduct the hearing in writing. I also agree with the respondent that the hearing should be adjourned until the applicant is medically cleared to participate in an in-person hearing.
9The Tribunal therefore makes the following orders and directions:
The applicant’s request for a written hearing is denied.
The in-person hearing scheduled for April 18 and 19, 2016 is adjourned.
When the applicant’s health care providers have medically cleared her to participate in an in-person hearing, she shall notify the Tribunal and the respondent that she is ready to proceed and provide her availability dates.
The applicant shall notify the Tribunal as early as possible of any request for accommodation of Code-related needs during the in-person hearing.
Dated at Toronto, this 15th day of April, 2016.
“Signed By”
Ken Bhattacharjee
Vice-chair