PSGB#P-2014-4875

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Ron Ihasz

Complainant

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE COMPLAINANT

Ron Ihasz

FOR THE EMPLOYER

Ferina Murji Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

September 10 and 15, 2015

Decision

1From the early stages of scheduling this matter, the complainant has requested that the Board deal with his complaint by telephone conference. That request has been repeatedly made on the basis that the complainant is unable to physically attend a hearing due to medical reasons. No supporting medical documentation had been provided. By e-mail to Board staff on March 19, 2015 the complainant indicated that he wished to have the matter dealt with over the phone and asked that the employer make a formal proposal to four issues raised by the complainant. This was an apparent reference to an e-mail sent to the Deputy Minister of the Ministry of Government and Consumer Services dated February 23, 2015 and attached to the complainant’s Form 1 application to the Board.

2On March 26, 2015, the complainant indicated that he was available for a hearing on September 18, 2015 but would not be able to attend until he received medical clearance closer to that date. In that e-mail the complainant again suggested that the issues could be resolved over the telephone. On March 28, 2015 the complainant reiterated his request that a telephone conference be booked for September 18, 2015 based on his asserted medical condition. Although the complainant has made references to having legal counsel, none has been identified and any correspondence with the Board has come directly from the complainant.

3By decision dated April 17, 2015 the Board reviewed this history as well as the employer’s position that it was entitled to the opportunity to respond appropriately to the legal proceeding commenced by the complainant. The employer’s Form 2 response received on August 21, 2015, asserts that the complainant has failed to clearly articulate the particulars of his application and reserves full rights to make any preliminary or other objections regarding the complaint, asserting that complaints brought by the complainant have already been the subject of proceedings before the Ontario Human Rights Tribunal.

4The decision of April 17, 2015 noted that accommodation of the hearing process is not provided pursuant to a mere request or preference. Rather, any assertion that an individual participating in the proceeding requires accommodation under the Ontario Human Rights Code on the basis of disability must be substantiated with accompanying medical documentation that is both appropriate and sufficient to the request for accommodation, and which must indicate any medical restrictions or limitations that either result in an inability to attend and/or participate in the hearing process in the usual course and/or provide information from which one might assess how the process might be adjusted in order to allow appropriate participation.

5The matter was set down for hearing on September 18, 2015. The earlier decision notes that a failure to provide appropriate and sufficient medical documentation supporting an inability to attend may result in the matter proceeding in the complainant’s absence.

6By e-mail dated September 10, 2015 the complainant forwarded a scanned copy of a medical note, requesting that he be advised of “the next step”. That note indicates that the complainant has been under the care of the medical practitioner and identifies a disorder for which she has treated the complainant. That medical note states simply that the complainant “is not able to go to hearings or meetings in person as there is a risk of him decompensating. He is capable of resolving things over the phone if that is possible”.

7In response, the employer has taken the position that the medical note is insufficient and that the complainant should be directed to attend the hearing in person, failing which the employer will ask the Board to dismiss the complaint.

8It is important that the nature of the hearing process be understood by both the complainant and his medical practitioner. Mr. Ihasz has filed a complaint against his employer (I note that while there appears to be some issue as to the identification of the appropriate Ministry, there can be no dispute that the employer is the Crown in Right of Ontario). The onus of establishing that the employer has acted in a manner contrary to the terms and conditions of his employment rests with Mr. Ihasz. Although less formal than the courts, complaints are heard by the Board in like manner as a trial. As an administrative tribunal, the Board is required to conduct its proceedings in accordance with the rules of natural justice, which include the requirement that a party complained about have the opportunity to know the case against it and have an appropriate opportunity to respond. That hearing process contemplates the examination and cross-examination of witnesses by both the complainant and respondent, followed by legal submissions as to the appropriate legal outcome based on the evidence presented. One would expect that, in pursuing his complaint, Mr. Ihasz would provide testimony under oath with respect to the facts that he asserts support his complaint. The employer is entitled to cross-examine Mr. Ihasz in that regard, as well as call its own witnesses in support of facts it asserts. Mr. Ihasz would have the opportunity to cross-examine those witnesses. A hearing is not a matter of ”resolving things over the phone”. The employer takes issue with the complaint and has indicated that it may have preliminary objections to the matter proceeding at all, issues that may also require the calling of witnesses to establish the factual basis for any objection. The evidentiary process is not one that may be readily adapted to a telephone call without jeopardizing the adjudicative protections the process is designed to ensure.

9An individual is entitled to be accommodated if they suffer a disability that interferes with their ability to attend and properly participate in the hearing. Not all disabilities result in a need for accommodation. It is for that reason that the Board is concerned with the nature of any restrictions and limitations suffered as a result of the disability, and why a statement of diagnosis is generally insufficient. In the absence of understanding how the disability affects the individual’s ability to participate, the Board is unable to assess how the process may be adjusted and/or whether the Board will be able to appropriately fulfill its adjudicative function at all.

10In this case, the medical note is insufficient. While it does indicate that the complainant “is not able to go to hearings or meetings in person”, the basis for that conclusion is not clearly identified. The diagnosis is not one that would obviously or necessarily lead one to conclude that the sufferer is incapable of participating in a hearing process. The medical note indicates a risk of decompensation should the complainant attend the hearing in person. However, the extent or likelihood of any risk is not indicated, nor is there any indication as to why that risk arises should the complainant be physically present when it does not arise over the phone. It does not indicate whether the risk may be managed in any way. A hearing process is typically stressful, regardless of the manner in which it is conducted. There is no apparent consideration given to any alternative accommodation other than the one requested and preferred by the complainant from the outset.

11This matter will therefore proceed as follows. I hereby direct that:

1. The complainant provide the Board with a more fulsome medical report that addresses the concerns raised in this decision and the direction provided in the decision dated April 17, 2015. Any further medical report must include an indication from that medical practitioner that they have been provided with and have read this Board decision and the Board’s decision dated April 17, 2015. Absent such report the Board will not be in a position to properly consider any request for accommodation.

2. The complainant provide to the Board, in writing, a full statement of the asserted facts on which he intends to rely in pursuit of his complaint. This is to include the detail as to the “who, what, where, and when” of any issue he seeks to raise. In addition, he is to provide a clear statement as to the remedy that he is seeking, that is, what is he asking the Board to order should it uphold his complaint. The complainant should understand that the Board expects, as a result, to be in a position to be able to ascertain the extent of any factual dispute between the parties.

12The complainant will have until 5:00pm on Friday, November 20, 2015 to comply with both directions outlined above.

13The hearing date of September 18, 2015 is hereby adjourned.