Kathleen Sandy v. Toronto Community Housing Corporation, 2016 HRTO 572

Human Rights Tribunal of Ontario

B E T W E E N:

Kathleen Sandy Applicant

-and-

Toronto Community Housing Corporation Respondent

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: April 29, 2016

Citation: 2016 HRTO 572

Indexed as: Sandy v. Toronto Community Housing Corporation

APPEARANCES

Kathleen Sandy, Applicant Self-represented

Toronto Community Housing Corporation, Respondent Matthew Curtis, Counsel

1This is an Application alleging 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”). The applicant is a current employee of the respondent.

2On April 21, 2016, the Tribunal held a conference call to hear submissions on the respondent’s request to dismiss the Application as abandoned and the applicant’s request to defer the Application. I deny both requests for reasons that follow and issues directions to the applicant regarding her obligations for the continuation of the Application.

Background

3The Application was scheduled for hearing on November 16 and 17, 2015. Prior to the hearing the respondent requested that certain preliminary issues be addressed including its request that the Application be dismissed on the basis of s. 45.1 or in the alternative, deferred to a WSIB proceeding. By Case Assessment Direction (CAD), dated September 1, 2015, the Tribunal denied both requests. In addressing the alternative request to defer, the Tribunal stated at paras. 9 and 10:

It appears that the applicant has filed anIntention to Object with the WSIB. This means that she had met time limit for filing an objection. The WSIB will not deal with the objection unless the applicant indicates that she is ready to proceed with the objection. Based on the information currently before the Tribunal, there is currently no proceeding underway to which the application could be deferred. The respondent's request that the application be deferred is dismissed at this time.

The applicant is directly to inform the Tribunal and the respondent if she proceeds with the objection before this Application is resolved.

4In its CAD, the Tribunal also extended the deadline for pre-hearing filing requirements to September 18, 2015.

5The applicant did not comply with the pre-hearing disclosure requirements and on October 29, 2015, the respondent filed a Request for Order During Proceeding, seeking that the applicant comply and in addition produce other documentation by November 6, 2015.

6The applicant did not respond by November 6, 2015 and on November 10, 2015, the respondent wrote to the Tribunal asking that the Application be dismissed as abandoned based on the applicant’s failure to respond to its most recent request as well as its earlier requests for production.

7On November 10, 2015, the Tribunal issued a Case Assessment Direction directing that by noon on November 13, 2015, the applicant deliver the documents and witness statements to the Tribunal and the respondent and confirm in writing that she intends to attend the hearing on November 16 and 17, 2015. The Tribunal also warned the applicant that her failure to comply may result in a dismissal based on abandonment.

8On November 13, 2015 at 3:29 p.m., the applicant left a voicemail message with Tribunal staff, stating, among other things, that she “cannot deal with anything right now, mentally not able to deal with anything.” Tribunal staff received the voicemail message on November 16, 2016 and attempted to contact the applicant early on the morning of the scheduled hearing but the staff person was only able to leave a voicemail message.

9At the commencement of the hearing on November 16, 2015, only the respondent was in attendance. The Tribunal set the hearing down for 30 minutes but the applicant did not attend. The Tribunal then heard oral submissions from the respondent. The respondent strongly urged the Tribunal to dismiss the Application as abandoned given the applicant’s continuing failure to participate in the process. The respondent stated that the applicant voicemail message should not allow her to keep the “claim going” given that she has not been an active participant.

10The Tribunal declined to dismiss the Application as abandoned at the hearing. The Tribunal issued a Case Assessment Direction on November 17, 2015 directing that the applicant file written submissions in response to the respondent’s request that the Application be dismissed as abandoned. The Tribunal directed that in her submissions, the applicant explain the reasons, if any, for her failure to attend a hearing and to comply with the Tribunal’s earlier directions; and that if the applicant seeks an adjournment, she provide reasons in support of her request along with any supporting documentation.

11On November 27, 2015, the applicant filed a request to defer the Application because of “ongoing medical and mental distress and issues” and “ongoing related case with WSIB to be completed.”

12The respondent opposed the request and requested a conference call in order to “further probe the status of the Applicant’s WSIB claim(s).” Among other things, the respondent submitted that the Tribunal had already declined to defer the Application pending the applicant’s WSIB claims. The respondent stated that the applicant appeared to be functionally able to work and able to pursue her Application. In reviewing the applicant’s attendance at work in the period leading up to and including the scheduled hearing dates, the respondent stated that the applicant was “ill” on November 16, 2015 and had pre-scheduled time off on November 17, 2006 for a medical appointment.

13The Tribunal attempted to schedule a conference call with the parties for March 23 or 24, 2016 to address the outstanding issues. The respondent provided its availability but the applicant did not respond. Notwithstanding the foregoing, the applicant faxed a letter to the Tribunal on April 5, 2016, stating that her case with the WSIB had not been heard and that she would advise when this related case is completed (which left the impression that the applicant was conducting herself as if the Application was deferred).

14By Case Assessment Direction, dated April 13, 2006 the Tribunal scheduled the conference call for April 21, 2016 for the purpose of addressing the outstanding issues including the respondent's request that the application be dismissed as abandoned; and the applicant's request that the application be deferred. In the CAD, the Tribunal reminded the applicant that by Case Assessment Direction dated September 1, 2015, the Tribunal had considered and dismissed a request by the respondent to defer the Application and that as a result, the Application has not been deferred to any proceeding at the WSIB and will continue to be processed unless the Tribunal determines otherwise.

15The conference call was held on April 21, 2016. The applicant and respondent were in attendance.

16In her submissions, the applicant clarified that her reference to ongoing medical and mental distress and issues pertained to her still waiting for the “WSIB” to be completed. The applicant continued to appear confused about the issues and the status of the Application. When I asked the applicant to explain why she did not attend the hearing, the applicant stated she had filed her Request to Defer before the hearing on November 16, 2015 and when I stated that this was not the case as the filing date was after the hearing, the applicant stated that she could not remember why she did not attend the hearing and apologized for her non-attendance. The applicant stated that she seeks medical treatment (which she identified) to help her to recall things and referenced certain family circumstances (which I understood she found difficult). The applicant stated she did not wish to abandon the Application and stated that she would move the Application forward whenever the WSIB matter had concluded.

17With respect to her WSIB claims, the applicant was unable to articulate the status of the claims beyond stating that her union was looking after her appeals and that she understood the union would move her appeals forward as soon as possible. The applicant stated that she was now off for three months for medical reasons although she acknowledged that she had yet to file medical information in support of her illness with the respondent.

18In its submissions, the respondent renewed its request that the Application be dismissed as abandoned. The respondent submitted that the applicant has not provided an acceptable explanation for her non-attendance at the hearing and has failed to comply with the Tribunal’s Rules of Procedure and directions. The respondent submitted that the applicant cannot pick and choose what process to deal with to address her concerns.

19On the issue of deferral, the respondent submitted that nothing has changed since the Tribunal already addressed the issue and the new request should be denied. The respondent also stated that it understood the applicant was not at work because of vacation.

DECISION

Request to Dismiss for Abandonment

20I do not find it appropriate to dismiss the Application as abandoned. The applicant has been participating in the process (albeit intermittently and not fully in accordance with the directions of the Tribunal).

21I accept that the respondent has raised valid concerns about the applicant’s conduct. The applicant did not attend the hearing and has not consistently responded to the Tribunal’s directions and orders. Nonetheless, based on the material before me and the party’s submissions, while the applicant’s conduct is of concern, I do not find that it justifies dismissal on the basis that it reflects abandonment. With respect to the applicant’s non-attendance at the hearing, the applicant did contact the Tribunal the day before the hearing and the respondent’s records appear to reflect that the applicant was off work that day because she was ill. While it would appear from the respondent’s submissions they are sceptical of this reason, the respondent did not directly submit that this explanation was untrue, just that it was not supported by evidence. The applicant seemed confused about the timing of the hearing date and what was going on in the case at that time although ultimately, the applicant stated that she could not recall and apologized for her failure to attend.

22Based on these submissions, the applicant appeared to be genuinely confused about the process and what was expected of her. While I have some difficulty with this given the directions that have been issued, I do not conclude that the applicant’s conduct up to this point is an intentional flouting of the Rules and the Tribunal’s directions.

23I do caution the applicant that there can be serious consequences if she fails to comply with the Tribunal’s Rules of Procedure and any orders and directions issued by the Tribunal. Pursuant to s. 23(1) of the Statutory Procedures Act, R.S.O. 1990, c.S.22, as amended and Rule A8 of the Tribunal’s Rules of Procedure, the Tribunal has the power to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process. In some circumstances, the Tribunal has applied this power to dismiss an application where an applicant has refused to comply with directions. I set out below those directions that remain outstanding that the applicant must comply with for the Application to continue.

Request to Defer

24The applicant’s Request to Defer is denied. The Tribunal previously dismissed an earlier request to defer this Application because it concluded that there was no other proceeding underway. I agree with the respondent’s submissions that the applicant has not pointed to any new facts that would justify a reconsideration of that determination.

Orders and Directions

25In summary, the Tribunal makes the following orders:

• The respondent’s request that the Application be dismissed as abandoned is denied; and
• The applicant’s request to defer the Application to the WSIB is denied;

Directions to Applicant

26I issue further directions to the applicant that she must comply with for the Application to continue.

27On November 10, 2015, the Tribunal issued specific directions to the applicant regarding her disclosure obligations and the respondent’s production request for the IME and related material which continue to be applicable for the continuation of this Application. The Tribunal directed that the applicant shall:

• Deliver to the respondent a copy of her arguably relevant documents;
• Deliver to the respondent and file with the Tribunal: (1) confirmation of delivery of her arguably relevant documents to the respondent; (2) a list and copy of the documents she intends to rely upon at the hearing; (3) a list of her witnesses; and (4) a brief statement describing what her witnesses will say when they testify; and
• Produce the IME report and any other medical documentation underlying the Application; or if she opposes the request to produce the IME and other medical documentation, complete and file a response to the Request for Order During Proceeding (Form 11), with the Tribunal, with a copy to the respondent.

28These directions have not been complied with and remain outstanding. The applicant has until June 15, 2016, to comply with the above directions. If the applicant has difficulty understanding her obligations, the applicant may wish to review the Guide to Preparing for a Hearing before the HRTO available on the Tribunal’s website at www.sjto.gov.on.ca/hrto, which includes information on assistance and representation.

29I note that the applicant has indicated that she is now off work for three months on a sick leave but acknowledges that she has not filed any medical information with the respondent. If the applicant is unable to comply with the directions in paragraph 27 for health-related reasons, she must file submissions in support of her position and include supporting medical documentation of the same by June 15, 2016.

30If the applicant does not comply with the outstanding directions set out in paragraphs 27 or 29 by June 15, 2016, the Application may be dismissed as abandoned.