Vaney v. Toronto Police Services Board, 2016 HRTO 603

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Natasha Vaney Applicant

-and-

Toronto Police Services Board, Mark Tracey, Christopher Mobbs, Adrienne Gilvesy, Brian Doyle, Roy Foster and Richard Slater Respondents

A N D B E T W E E N:

Natasha Vaney Applicant

-and-

Toronto Police Services Board, Peter Lennox, Mark Tracey, Scott Slater, Marisa Hamilton and Debra Hough Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: May 6, 2016 Citation: 2016 HRTO 603 Indexed As: Vaney v. Toronto Police Services Board

1These are two Applications filed under section 34 of Part IV of the Human Rights Code, R.S.O.1990, c.H.19, as amended (the “Code”). The Applications are being heard together. This Interim Decision addresses the continuation of these Applications and what appears to be the applicant’s request for an indefinite adjournment of the hearing.

Background

2The Applications have been in the process together since about April 2012 and the issue of the applicant’s ability to attend the hearing and/or what accommodations she requires to participate in the hearing have been raised and addressed on several occasions.

3Initially, the applicant requested accommodation by way of half day hearings scheduled for mornings. This request was accommodated by the Registrar and four hearing dates were scheduled at the Tribunal’s Toronto hearing centre in January and February 2015 from 9:30 to 1:30 p.m..

4After the hearing dates were scheduled, the applicant made a different request; namely that she be able to participate in the hearing by telephone as opposed to attending in person. The applicant stated that her illnesses and disabilities deplete her energy levels and that she has needs that she can better meet in her home environment. The respondents acknowledged that the applicant may require accommodation but submitted that if she only attended by telephone, it may impact on the fairness of the process. The respondents suggested that there may be ways to accommodate the applicant, i.e. shorter days, the applicant attending in person for some of the evidence and adjusting seating in the hearing room.

5On December 23, 2014, I determined that it would be appropriate to seek clarification from the applicant’s doctor of the applicant’s restrictions and needs and on December 24, 2014 issued directions to the applicant as to the issues her doctor should address to allow the Tribunal to assess the applicant’s particular needs.

6In January 2015, the applicant provided two medical letters from her doctors, both of which concluded that the “best option” for the applicant was that she participates by telephone. On January 14, 2015, the respondent filed a response, stating that with the exception of the applicant’s own testimony, the respondents did not oppose the applicant appearing by telephone, but that they were opposed to the applicant being permitted to offer her testimony telephonically because their right to a fair hearing would be seriously prejudiced. Among other things, the respondents stated that their fair hearing rights would be compromised given the serious issues of credibility in the case and that also the testimony of the applicant by telephone would present a number of logistical concerns in light of the number of documents and videos that are central to the case.

7After receiving these medicals and submissions, the Tribunal scheduled a conference call on January 19, 2015. During the call, after further probing of the applicant’s circumstances, I raised the possibility of convening an in-person hearing closer to the applicant’s location as an accommodation to address the applicant’s needs. The applicant and respondents were not opposed although the applicant asked that the hearing time commence later and that the duration be shorter than originally scheduled. On consent of the parties and subject to confirmation by the Registrar, the Tribunal directed that the hearing would proceed on the agreed to dates from 10:30 a.m. to 1:30 p.m. at a location to be determined. The parties agreed to each make inquiries about specific locations near to the applicant’s home.

8Ultimately, the hearing was scheduled and proceeded at Swansea Town Hall on the following dates in 2015: February 23 and 24; April 8 and 29; and July 13, 2015 (although the latter date concluded early). The applicant did not raise any concerns about the in-person hearing including the location selected. The Applicant’s testimony was not completed at these hearing dates.

9The Application was scheduled to continue on July 20, 21, 27 and 28, 2015. The parties attended the hearing on July 20, 2015, but due to an administrative error the hearing date had been mis-entered into the Tribunal’s calendar. As a result, I was not aware of the hearing and did not attend. The hearing was adjourned by email of the Registrar on July 20, 2015.

10A little more than one hour after the parties were notified of the adjournment, the applicant emailed the Tribunal seeking an adjournment of the remaining dates (July 21, 27 and 28, 2015) until further notice “due to a medical issue” with her throat. The applicant stated that the issue is under investigation by a number of specialists who are waiting for the outcome of tests for the cause of her ailment. The applicant asked that the remaining hearing dates be cancelled until she is treated for the condition and able to speak for a long period of time without pain and discomfort. The respondent took no position on this request.

11In the Case Assessment Direction subsequently issued on July 21, 2015, the Tribunal cancelled one of the hearing dates and directed the applicant to provide medical information clarifying her restrictions and limitations. Among other things, the Tribunal provided information about the hearing process and directed the applicant to deliver to the Tribunal by July 24, 2015, a letter from her doctor addressing the following questions:

• Is the applicant well enough to attend and participate in the hearing on July 28, 2015 and on any future dates that may be scheduled in consultation with the parties;

• Does the applicant have any additional restrictions or limitations to those above that will impact on her ability to participate in the hearing and if she does, what are the restrictions and/or limitations;

• How long are the additional restrictions/limitations expected to last?

• If the applicant is unable to participate in the hearing at the present time, are there any additional accommodation measures that would enable the applicant to continue to participate in the hearing (other than those set out in paragraph above) and if there are, what are the accommodation measures;

11On July 24, 2015, the applicant advised the Tribunal by email that she was unable to see her family doctor until July 27, 2015. In addition, the applicant advised the Tribunal that she had been feeling unwell (providing some details of her symptoms) since the end of April 2015 and that her condition was under investigation (stating that she had a procedure booked the first week of September). The applicant asked that when the matter continues, the hearing days be shorter (two hours or three hours depending on how she feels) and that she attend by teleconference as opposed to appearing in person. The applicant stated that her doctors would be unable to answer the questions until the root cause of her condition was identified.

12The applicant provided a brief medical note on July 29, 2015 which did not address all of the issues identified in the Case Assessment Direction. The note stated only as follows:

This 44 year old female is having great difficulty with talking because of throat pain under treatment. Her [ ] has been present since birth. This has been worsening with age. She is a [ ] survivor. An adjournment would be advisable for medical grounds.

13On September 29, 2015, the respondent wrote to the Tribunal asking that further dates be set as soon as possible so that the matter may move forward. The respondents stated that due process entitles them to have the matter continue to move towards completion at a reasonable pace. In their email, the respondents highlighted that the applicant had indicated that she would keep both parties informed as soon as she gets treated for the condition and that she was awaiting test results. The respondents submitted that the cursory medical letter received did not address the questions to the doctor listed in the CAD and did not support the length of the delay period.

14On September 29, 2015, the applicant responded. While not entirely clear, it appeared that the applicant’s position was that she was unable to participate in a hearing and was opposed to scheduling further dates. The applicant stated that she was under treatment with several specialists and “some serious medication for the infection which is on going” and that she has been told could take “months” to clear up.

15On October 22, 2015, the Tribunal issued a Case Assessment Direction. The Tribunal stated that the information submitted by the applicant did not address all of the questions set out in the Case Assessment Direction dated July 21, 2015 and that before making a determination on whether there is a sufficient medical basis to further adjourn the matter or whether further hearing dates should be set down with existing and/or other accommodations in place, the Registrar would ask a Vice-chair of the Tribunal to contact the parties separately by telephone to explore whether it would be productive to engage in mediation. The Tribunal further stated that if no further mediation dates were scheduled, the Tribunal would make a determination on whether further hearing dates should be scheduled or there is a sufficient basis for any further adjournments.

16The parties did attempt mediation with a different Vice-chair of the Tribunal but their efforts did not result in a resolution of the Applications.

17On December 21, 2015, the Tribunal issued a Case Assessment Direction stating that it would be in contact with the parties to schedule additional dates and that the hearing would continue as an in-person hearing for the duration of the applicant’s testimonial evidence at Swansea Town Hall, subject to availability. The Tribunal further stated:

If the applicant is seeking either a further adjournment or different accommodation from that currently being provided, she should advise the Tribunal of the same by December 29, 2015. If a request is forthcoming, in all the circumstances, I find it would be fair, just, and expeditious to address any such request after hearing directly from the applicant’s doctor. I note that previous attempts to seek clarification from the applicant’s doctors have not resulted in sufficient clarification of the applicant’s needs and restrictions. Accordingly, if the applicant does make such a request, the applicant shall advise of three possible dates that she and her doctor would be available for up to a one hour conference call at 12:00 or 1:00 p.m. with the Vice-chair and counsel for the respondents.

18On December 21, 2015, the applicant responded but not in a manner that was responsive to the issues identified in the CAD. The applicant stated that a medical letter had been provided that it was “best” to conduct the hearing via teleconference which was ignored and that she did not need the “point” of providing any more medical letters as it was a breach of her privacy and patient/doctor confidentiality. The applicant raised a concern about the timing of the call (stating that this is a time that the doctors she sees usually go for lunch), made reference to some of her symptoms including that her throat was still swollen and how it was affecting her and made reference to the doctor’s letter she submitted on July 29, 2015 noting that treatment is still going on. The applicant concluded with the statement, “The infection has cleared up” which I presume was an error given her other comments.

19There has been no further communication from the applicant since her email of December 21, 2015.

Decision and Next Steps

20While not entirely clear, the applicant’s email of December 21, 2015 appears to be a request that the Applications continue to be adjourned with no time frame being specified; in short, an indefinite adjournment. Further, the applicant appears unwilling to attend a conference call with her doctor to provide clarification of her needs and restrictions in support of her request. In light of the foregoing, to the extent the applicant is seeking an adjournment; I am limited to the applicant’s submissions as set out in her email.

21Based on the applicant’s submissions, there is insufficient information to justify an ongoing and/or indefinite adjournment of the Applications. The last medical note was submitted nine months ago. Even accepting that the applicant required an adjournment for medical reasons as of July 29, 2015, the sparse information provided does not support an ongoing or indefinite adjournment of the Applications. The doctor describes a condition which is “under treatment”. Without further information about the status of that condition and how it impacts on the applicant’s ability to participate in the hearing, there is no basis to continue to adjourn the hearing. As a result, to the extent the applicant is requesting an indefinite adjournment in her email of December 21, 2015, it is denied.

22In its Case Assessment Direction dated July 21, 2015, the Tribunal explained the rationale underlying the need to provide specific medical or comparable information to justify an indefinite or long term adjournment. The Tribunal stated that both the applicant and the respondents have interests – including procedural fairness interests -- in the resolution of the legal proceedings brought by the applicant and for this reason, the Tribunal will generally not grant indefinite or long term adjournments without specific medical or comparable information. See also Shaikh v. York Condominium Corporation #60, 2013 HRTO 396 at paragraph 22 and Taucar v. University of Western Ontario, 2015 HRTO 515 at paras. 7-14.

23I do note that the applicant also commented on the issue of accommodation. In her email, the applicant suggests that the recommendation of a teleconference hearing was “ignored”. However, the history of this proceeding demonstrates otherwise. As set out above, while the applicant’s doctors opined in January 2015 that a teleconference hearing was “best”, the applicant subsequently appeared to consent to the accommodations that were provided including the re-location of the hearing to a venue near her home. Further the applicant did not apprise the Tribunal of any restrictions on her ability to participate on the days on which she attended and in fact appeared to have no difficulty participating with the accommodations provided. In the context of this history, the characterization that the doctor’s recommendation was ignored is inaccurate.

24The Tribunal will proceed to schedule further dates subject to the applicant confirming, in writing, her willingness to participate in the process by May 20, 2016, with a copy to the respondents. The accommodations will be as previously provided.

Summary of Orders

25The Tribunal orders:

a) The Request for an adjournment is denied;

b) The Registrar will proceed to schedule further dates for an in-person hearing at Swansea Town Hall (or such suitable alternative venue if Swansea Town Hall is unavailable) with shortened hearing dates subject to the applicant complying with (c) below; and

c) The applicant shall confirm her intentions to attend and participate in the hearing by May 20, 2016.

26If the applicant does not confirm her intentions by May 20, 2016, the Tribunal may dismiss the Application as abandoned.

Dated at Toronto, this 6th day of May, 2016.

“Signed By”

_________________________________

Kathleen Martin Member