Reason v. Town of Uxbridge, 2017 HRTO 1297

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eugene Reason Applicant

-and-

Town of Uxbridge Respondent

INTERIM DECISION

Adjudicator: Eban Bayefsky Date: October 3, 2017 Citation: 2017 HRTO 1297 Indexed as: Reason v. Uxbridge (Town)

introduction

1A hearing in respect of this Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, was scheduled for July 13 and 14, 2017, in Toronto.

2The Tribunal issued a Case Assessment Direction (“CAD”) on July 5, 2017, alerting the applicant to the fact that he had failed to comply with the Tribunal’s Rules regarding pre-hearing disclosure of documents and witnesses, and directing him to provide the required materials by July 11, 2017, failing which the hearing would be cancelled and the Application might be dismissed as abandoned.

3The Tribunal did not receive anything from the applicant and, by email to the parties on July 12, 2017, the Tribunal advised that the hearing was cancelled, with directions to follow.

4Shortly afterwards, and without apparently having seen the Tribunal’s earlier email, counsel for the respondent emailed the Tribunal advising that she had received correspondence from the applicant on July 11, 2017, requesting an extension to provide the required pre-hearing disclosure. Counsel attached the applicant’s correspondence, which does not appear to have been sent to the Tribunal. In his letter, the applicant stated that he had had “2 major surg[er]ies which I have only recently recovered from” and requested an extension to August 20, 2017 to provide the required disclosure.

5Counsel for the respondent submitted, among other things, that the Application should be dismissed or, in the alternative, the hearing should be adjourned with the applicant being required to provide “substantiation of his alleged incapacity to participate in the Tribunal process.”

6The Tribunal issued a further CAD on July 21, 2017, directing the applicant to provide, by July 28, 2017, supporting documentation for his claim that, due to his surgeries, he was unable to provide the required pre-hearing disclosure, failing which the Application might be dismissed as abandoned. The respondent was provided an opportunity to respond to the documentation submitted by the applicant.

7On July 28, 2017, the applicant served and filed a letter in which he stated that he had had significant surgery with “[m]onths of pre and after complication[s].” The applicant also stated that he was scheduled for a follow-up examination on August 8, 2017, and had had a “life treating [sic] procedure at the Markham Stouf[f]ville Hospital” for another serious condition. The applicant attached a letter, dated July 26, 2017, from the physician who conducted the surgery, Dr. A. Sheikh, which stated, as follows:

[The applicant] underwent a surgical procedure at the Markham Stouffville Hospital on Monday, May 15, 2017. He was medically fit to return to work on Monday, June 26, 2017.

8In response, the respondent submitted, in part, as follows:

The Applicant’s medical documentation does not support his allegations that he was unable to provide pre-hearing disclosure. The documentation does not indicate why, between March 1 and May 15, 2017 the Applicant could not provide his Rule 16 disclosure. Further, it does not provide any explanation for why the Applicant was unable to comply with Rules 16 and 17,…or comply with the Tribunal’s Case Assessment Directions between June 26 and July 11, 2017 as his physician confirms he was fit to return to work.

9The respondent asked that the Application be dismissed.

decision

10The applicant failed to comply with any of his pre-hearing disclosure obligations, despite being given two opportunities to do so.

11The applicant was directed to provide support for his claim that, due to his surgeries, he was unable to comply with the Tribunal’s July 5, 2017 CAD regarding pre-hearing disclosure, but the documentation submitted establishes that the applicant was capable of providing the required disclosure from at least June 26, 2017, when he was medically cleared to return to work. The applicant did not provide any documentation regarding the second procedure he is alleged to have had, or how that might have prevented him from providing the required disclosure.

12I find that the applicant has not shown that he was incapable of providing the necessary pre-hearing disclosure.

13The applicant’s request for an extension to comply with his pre-hearing disclosure obligations is, therefore, denied and he shall not be permitted to file any additional materials or call any witnesses.

14I am not prepared to dismiss the Application at this time. In my view, the matter should be permitted to proceed, with the warning that, at the hearing, the applicant’s evidence will be limited strictly to the contents of the Application. I note, in this regard, that in the Tribunal’s July 5, 2017 CAD, the applicant was reminded that, if he intended to testify, he was required to submit a witness statement for himself, unless he only intended to testify about the facts already contained in the Application, in which case it would be sufficient for him to confirm that in writing by July 11, 2017. The applicant did not do this.

ORDER

15The applicant’s request for an extension to comply with his pre-hearing disclosure obligations is denied.

16The applicant shall not file any additional materials or call any witnesses.

17The Tribunal shall schedule a hearing in the matter. The applicant’s evidence shall be strictly limited to the contents of his Application, filed with the Tribunal on June 14, 2016.