Solomon Fagan v. Toronto Transit Commission and Wheel-Trans, 2017 HRTO 1143

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Solomon Fagan

Applicant

-and-

Toronto Transit Commission and Wheel-Trans

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: September 1, 2017

Citation: 2017 HRTO 1143

Indexed as: Fagan v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Solomon Fagan, Applicant

Self-represented

Toronto Transit Commission and Wheel-Trans, Respondents

Angela Rae, Counsel

1This Interim Decision addresses the applicant’s production request and his request to adjourn and reschedule the hearing for this Application which is scheduled to be heard October 17-18, 2017.

background to this application

2The applicant filed an Application alleging that the respondents discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The allegations contained in the Application were wide-ranging, but included allegations that the respondents discriminated against the applicant and others with respect to the conduct of in-person eligibility interviews and in the way they address disabilities where endurance is a factor as well as mental disabilities that can have physical effects. The applicant also alleged that the respondents discriminated against him in various ways by failing to provide reasonable accommodations on the day of his appeal interview on February 7, 2014.

3By Interim Decision, 2017 HRTO 514, I dismissed all but a few allegations in the Application on the basis that they had no reasonable prospect of success or were moot. In particular, and significantly, I dismissed the applicant’s allegation that the respondents engage in systemic discrimination against persons with disabilities where endurance is a factor and/or against persons with mental disabilities that have physical effects in various ways including:

a. by forcing applicants to attend eligibility interviews at locations that are not equally accessible;

b. by failing to accurately inform applicants of the conditions of the interview;

c. by using vague and non-medical criteria that do not adequately take into consideration endurance as a factor;

d. by using privatization to veil the respondents’ eligibility process from oversight. Under this heading, the applicant raises various issues such as potential conflicts of interest, the independence of panel members, etc.; and

e. the respondents’ lack of accountability in terms of having a transparent process.

4The only allegation I did not dismiss is the allegation that the respondents discriminated against the applicant by failing to provide reasonable accommodations on the day of his appeal interview (February 7, 2014) by:

a. requiring him to attend an in-person interview;

b. failing to adequately inform him of the conditions of the interview (distance of room from drop-off point, etc.); and

c. failing to ensure equal access to the location of the interview.

5At para. 25 of my Interim Decision, I stated as follows:

In my view, the allegations in the third category set out above [i.e. those reproduced in the previous paragraph] cannot be dismissed as being moot. These allegations relate to the process surrounding his assessment interview in February 2014. In my view, these allegations are unaffected by the changes in the Wheel-Trans assessment process as of January 1, 2017. They are also unaffected by the applicant’s own inability to use the Wheel-Trans service between February 2014 and the date he filed his Application since the allegations relate to an alleged failure to procedurally accommodate his disability on the day of the assessment. In my view the procedural allegations listed in para. 5, items 1(a)-(c) cannot be dismissed as moot. Having said this, I note that this is not a situation where the respondents provided no accommodations to the applicant. The respondents did provide certain accommodations in this case. Under the Code, an applicant is not entitled to his preferred accommodation but only to reasonable accommodations up to the point of undue hardship. The question in this case will be whether the accommodations provided by the respondent on the day of the assessment interview were reasonable in the circumstances. [emphasis added]

6The scope of the allegations that I permitted to go forward to a hearing is very narrow. No allegations beyond those set out in para. 4 above will be heard in this case. As stated in my June 29, 2017, Case Assessment Direction, the only documents that are required to be disclosed are those that are relevant to the very narrow and defined allegations that I have permitted to go forward. Only evidence relating directly to the allegations set out in para. 4 above will be admitted at the hearing.

production request

7By Request for Order During Proceedings, the applicant filed a broad production request listing 21 categories of materials he was seeking to have produced. He requested the last name of a security guard who was allegedly a witness to some of the alleged events on February 7, 2014, and the full name and last known contact information and address for a taxi driver that drove him to the February 7, 2014 interview. He also requested numerous other documents such as Medisys audits, documents relating to the medical qualifications of various employees of the respondents, correspondence between various employees of the respondents relating to his initial interview as well as his appeal interview, copies of new assessment guidelines, and systemic evidence relating to data that relates to Wheel-Trans applicants in general. The applicant has also filed Freedom of Information requests for much of this documentation.

8The respondents responded to the applicant’s production request by taking the position that most items are not arguably relevant to the remaining issues set out in my Interim Decision. With respect to the identity and contact information of the security guard, the respondent replied that it obtained this information as part of its preparation for the hearing and therefore it is subject to litigation privilege. It also took the position that the security guard’s information was not arguably relevant to the issues remaining in this case. The respondents took the position that the information that the applicant sought in relation to his initial eligibility interview was not arguably relevant to this case. They stated that they were not aware of any notes, emails, records, or video recordings that are arguably relevant to any of the remaining issues in dispute that have not already been produced.

Finding

9The basic principle in determining a production request by this Tribunal is whether the requested documents are “arguably relevant” and not subject to some form of legal privilege. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. See McKay v. Toronto Police Services Board, 2009 HRTO 1220 at paras. 12-13.

10It appears to me that the applicant has either not read my Interim Decision in this case very closely or else he does not understand the very narrow scope of the issues remaining in this case. I would have expected that any counsel who the applicant may be consulting at the Human Rights Legal Support Centre would have been able to explain to him the findings in my Interim Decision and the very narrow scope of the issues remaining in this case.

11Of the 21 categories of materials sought by the applicant, I find that the only materials that are arguably relevant to the very narrow allegations proceeding to a hearing in this case are the following:

a. The full name, last known contact information, and address of the Medisys building security guard who witnessed some of the events that allegedly occurred on February 7, 2014;

b. Full name, last known contact information, and address of the taxi driver who drove the applicant to Medisys on February 7, 2014 and who witnessed some of the events that allegedly occurred on February 7, 2014; and

c. Any video recordings relating to the accommodations for the applicant’s appeal interview on February 7, 2014.

12I find that none of the other items are arguably relevant to the very narrow issues remaining in this case and/or there is a lack of proportionality between the probative value of the requested materials and the scope of the issues remaining in dispute.

13Of the three sets of materials listed in para. 10, I decline to order the respondents to produce the information relating to the security guard since it is subject to litigation privilege. The applicant must seek the information from Medisys on his own.

14The respondents must produce to the applicant the full name, last known contact information, and address of the taxi driver who drove the applicant to Medisys on February 7, 2014 if this information is in their possession and/or control.

15The respondents have stated that they have produced all video recordings relating to the applicant’s February 7, 2014 appeal interview that are arguably relevant. They must ensure that this included any video recordings relating to the accommodations for the applicant’s appeal interview on February 7, 2014.

adjournment and rescheduling request

16By Notice of Hearing dated June 6, 2017, the Tribunal scheduled this hearing for October 17-18, 2017. The hearing dates were set after both parties confirmed their availability for a hearing on those two dates.

17By e-mail dated August 17, 2017, the applicant requested that the Tribunal reschedule the second day of hearings because he has difficulties reaching the Tribunal’s hearing center. He described these difficulties in great detail in his email. He asked that the hearing dates be staggered by at least a week and that they not be scheduled too close to the beginning and end of the month.

18By e-mail sent later in the day on August 17, 2017, the applicant asked that the Tribunal delay processing his first email until further notice. He indicated that he might have to request a later date for the whole hearing.

19By e-mail dated August 22, 2017, the Tribunal directed the applicant to advise by 5 PM Friday, August 25, 2017, whether he is seeking an adjournment of the October hearing.

20By e-mail dated August 25, 2017, the applicant advised that he would be requesting an adjournment of both days or, in the alternative, a rescheduling of the second day or, in the further alternative, that he be permitted to participate by teleconference on the second day. In a second e-mail sent after 5 PM on August 25, 2017, the applicant provided as reasons for his request that he has had difficulties communicating with the Human Rights Legal Support Centre in a timely way and that he has had difficulty obtaining disclosure of documents from the respondents. I note that none of the documents that the applicant is seeking disclosure of are relevant to the very narrow issues that I did not dismiss in this case (see above). In his email, the applicant also talked about needing more time to evaluate the new Wheel-Trans eligibility policy and asked that the hearing date be “put on hold” until sometime after the conclusion of the Wheel-Trans re-registration process in which he is currently involved.

21The applicant then sent four sets of very long attachments to the Tribunal which mostly consist of materials relating to Freedom of Information requests he has made of the respondents.

22Nowhere in his response to the Tribunal’s August 22, 2017 e-mail does the applicant mention the initial reasons he gave for his rescheduling request -- that is, the difficulties he would have reaching the Tribunal’s hearing center two days in a row. Significantly, the applicant has also not provided any medical documentation supporting his claim that he is physically unable to make it to the Tribunal’s hearing center two days in a row. The only documentation he provided was a letter from an occupational therapist from three years ago supporting his application for Wheel-Trans service.

findings

23The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states:

The HRTO discourages requests for adjournments outside the ten-day period to request rescheduling of a hearing (…) Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax, copied to the other parties. [emphasis added]

24As the Practice Direction makes clear, the Tribunal grants adjournment requests made outside the 10-day period for rescheduling requests only in extraordinary circumstances, even if both parties consent to the adjournment.

25In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used.

26An applicant’s failure to gather all necessary evidence in a timely way does not amount to the kind of “extraordinary” circumstances that would lead the Tribunal to grant an adjournment request. This is especially the case when the information the applicant seems intent on gathering is not relevant to the very narrow issues I have allowed to proceed in this case.

27The Tribunal’s case law and practice direction regarding adjournment requests is clear. Adjournments are only granted in exceptional circumstances. In order to be granted an adjournment due to an illness or disability, a party must provide acceptable documentation that their illness or disability renders them incapable of proceeding with a hearing before the Tribunal. See for example, Blakely v. Queen’s University, 2011 HRTO 706, and Husain v. Tortoise Restaurant Group, 2012 HRTO 1669. The applicant has failed to provide any medical documentation that supports the claim he made in his August 17, 2017 email that he is incapable of attending two hearing dates in a row due to his medical condition.

28For all the above reasons, the applicant’s request to adjourn and reschedule the hearing or, alternatively, the second hearing day is denied. His request to participate by teleconference is also denied. In my view, it would not be possible to conduct the hearing on the second hearing day with the applicant participating by telephone since the respondents will be presenting their evidence on the second hearing day and, due to the set-up of the hearing room, the applicant would not be in a position to hear, over the speaker phone, both the respondents’ counsel and witnesses as they testify.

ORDER

29For the reasons set out above the Tribunal orders as follows:

a. The applicant’s production request is only granted in part. Within 14 days of this Interim Decision, the respondents must produce to the applicant the full name, last known contact information and address of the taxi driver who drove the applicant to Medisys on February 7, 2014 if this information is in their possession and/or control. They must also ensure that they have produced to the applicant any video recordings relating to the accommodations for the applicant’s appeal interview on February 7, 2014.

b. The applicant’s request to adjourn and reschedule the hearing or, alternatively, the second hearing day is denied and his request to participate by teleconference is also denied.