HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rachel Jacob
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Ontario Lottery and Gaming Corporation o/a Casino Sault Ste. Marie
and
David Gutnik
Respondents
interim DECISION
Adjudicator: David A. Wright
Date: November 12, 2008
Citation: 2008 HRTO 255
Indexed as: Jacob v. Ontario Lottery and Gaming Corporation
Human Rights Tribunal of Ontario
655 Bay Street, 14th Floor
Toronto ON M7A 2C7
Phone (416) 314-8419 Fax (416) 314-8743 Toll free 1-866-598-0322
TTY (416) 314-2379 / 1-800-424-1168
E-mail hrto.registrar-transition@ontario.ca
Website www.hrto.ca
APPEARANCES BY
Ontario Human Rights Commission ) Christine Elwell, Counsel
Rachel Jacob, Complainant ) On Her Own Behalf
Ontario Lottery and Gaming Corporation ) J. Lynn Thomson, Counsel
o/a Casino Sault Ste. Marie and )
David Gutnik, Respondents )
[1] The Tribunal made the following oral decision on a conference call with the parties yesterday:
This interim decision addresses a contested adjournment in this case, in which the Commission and complainant allege that the respondent violated the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) by failing to accommodate the complainant’s disability. The hearing is scheduled to take place in Sault Ste. Marie tomorrow (November 12, 2008), Thursday (November 13, 2008), and Friday (November 14, 2008). There were two previous hearing dates in September that were cancelled on consent as a result of the illness of a respondent witness.
The Tribunal was closed today, November 11, 2008, for Remembrance Day. Since the parties had advised the Tribunal that settlement discussions were continuing and asked for a manner to get in contact with me today in case the matter was settled, the Tribunal provided the parties with my e-mail address. This afternoon, counsel for the respondent advised the Tribunal and the other parties by e-mail that she was unable to walk as a result of an injury. She stated that she was “reluctant to cancel” but suggested that the parties continue mediated settlement discussions tomorrow by telephone. She said that she hoped to be in a position to travel for the hearing on Thursday if there was no settlement on Wednesday.
Commission counsel replied by advising respondent counsel that she was “sorry for your knee… but the hearing starts tomorrow at 10:45 am.” She stated that the complainant was unwilling to consent to an adjournment as a result of the stress of the hearing and suggested to respondent counsel that she have her client’s in-house counsel “step in for you as he is fully aware of the details of the case”.
I convened a conference call with the parties at 7:30 pm this evening to deal with the adjournment request. The complainant opposed the adjournment, on the basis of the stress that preparing for the hearing and the change had caused her. Counsel for the Commission reiterated her request that in-house counsel present the evidence although she did not oppose the adjournment request for Wednesday. She submitted that this was an issue of “competing rights”.
As counsel for the respondents has become unexpectedly ill and is unable to represent her client, an adjournment is justified and appropriate. I appreciate the complainant’s frustration. It is difficult to have been prepared for the hearing twice and have it adjourned. However, unexpected circumstances do happen and the respondents are entitled to present their witnesses and have counsel who prepared the case represent them.
The Commission’ position, however, is less understandable. Although Commission counsel notes the time the complainant has been waiting for the hearing, most of that time occurred while the complaint was being investigated at the Commission. The Tribunal and the respondents agreed to early hearing dates and quick rescheduling of the previously cancelled dates.
Accordingly, tomorrow’s hearing is cancelled and the hearing on Thursday, November 13 is rescheduled to start at 10:45 am. Counsel for the respondents shall advise the Tribunal and the other parties by tomorrow at 4:30 pm if she is unable to travel. If she requests that the hearings on Thursday and Friday be cancelled due to her illness, these hearing dates shall be adjourned by the Registrar’s office.
Dated at Toronto, this 12th day of November, 2008.
“Signed By”
David A. Wright
Vice-Chair