Davie v. PMA Brethour Real Estate, 2009 HRTO 1198

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Davie

Applicant

-and-

PMA Brethour Real Estate Corp. Inc. and Sue Di Illio

Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: August 4, 2009

Citation: 2009 HRTO 1198

Indexed as: Davie v. PMA Brethour Real Estate

1The resumption of the Case Resolution Conference (“hearing”) in this matter is scheduled for August 7, 2009. The date was agreed to by the applicant and the respondents at the conclusion of the first day of hearing on June 12, 2009 and was scheduled by Notice from the Tribunal dated June 23, 2009. This Interim Decision addresses the applicant’s request for an adjournment and a Rule 5.11 confidentiality order.

Adjournment Request

2The applicant wrote to the Tribunal and the respondents on July 31, 2009 seeking to adjourn the hearing on the basis that he wishes to retain counsel to represent him at the resumption. He did not set out any explanation as to why he has waited until July 31, 2009 to advise the Tribunal and the respondents of his request for an adjournment or why he has waited to this late date to seek representation.

3The respondents have objected to the request for an adjournment. They point out that the applicant commenced this complaint over three years ago and during that time has never formally retained counsel to represent him. The respondents indicate that the applicant stated at the hearing on June 12, 2009 that he was interested in retaining counsel for the continued hearing which was scheduled on June 12, 2009 for August 12, 2009. The respondents maintain that the applicant’s request for an adjournment at this late hour is an abuse of the Tribunal’s process. The applicant has not yet retained counsel nor is there any indication that counsel would be available for a hearing if in fact retained.

4While the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments does not specifically apply to Transition Applications, nonetheless the principles set out in this Information Bulletin are equally applicable to Transition Applications.

5The Tribunal’s Information Bulletin provides that requests to reschedule must be made within five (5) days of receiving the Confirmation of Hearing and that thereafter, adjournments will be granted only in extraordinary circumstances. The Information Bulletin states the following regarding requests for adjournments:

Requests for adjournment, particularly last minute requests for adjournments are a significant impediment to fair and timely access to justice.

The Tribunal’s approach to scheduling and rescheduling mediations and hearings is designed to give the parties a fair opportunity to find suitable dates. Therefore, the Tribunal discourages adjournment requests, and will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative.

The Tribunal will not automatically grant adjournments even when all parties consent. Consent of all parties will be a factor which the Tribunal will consider where a request to adjourn a mediation or hearing is made, but it is not the only, or even the main factor.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. If practical, they should contact the other parties to seek their consent, and to discuss alternate dates for the rescheduling of the mediation or hearing. Alternate dates for mediation must fall within five (5) months of the date of the Notice of Application. Alternative dates for a hearing must fall within five (5) months of the date of the Confirmation of Hearing.

The party making the request should contact the Registrar and provide the reason for the request and the alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by telephone or email.

The Tribunal typically will not adjourn a hearing date because the parties wish to “engage in settlement discussions” or are “close to a deal”. The Tribunal encourages mediation and settlements, and will assist the parties in this regard. Where parties believe they may be able to resolve a matter shortly before the scheduled hearing, they should advise the Registrar and the Tribunal will make a mediator and mediation room available. However, the Tribunal discourages the cancellation or adjournment of hearing dates so that the parties can explore settlement.

6The reasons for the Request do not constitute exceptional circumstances that would permit an adjournment. The applicant agreed to the hearing date, has known since June 12, 2009 that the resumption of the hearing was scheduled for August 7, 2009 and had the opportunity to retain counsel and, if necessary, to request a rescheduling in a timely manner. The Request for adjournment is denied.

Confidentiality Request

7The applicant requests that the Tribunal not publish his name on the Tribunal’s website or in any other public document. The applicant asserts that the stigma attached to being a person with a disability and the particular symptoms associated with his disability are such that, if a confidentiality order is not made, he may be subject to ridicule and prejudice.

8Pursuant to section 42 of the Code, the provisions of the Statutory Powers Procedure Act, RSO 1990 c. s.22, as amended (the “SPPA”), apply to proceedings before the Tribunal, unless those provisions conflict with the Code itself, the Code’s regulations, or the Tribunal’s rules. Section 9 of the SPPA calls for public hearings, as follows:

9.(1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the tribunal may hold the hearing in the absence of the public.

9In addition, the Tribunal’s Rules applicable to this proceeding provide as follows:

5.10 The Tribunal’s proceedings, other than mediation, are open to the public, except when the Tribunal determines otherwise.

5.11 The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

10In the normal course, then, a hearing before this Tribunal is open to the public. Part of the principle of openness is that the parties to the proceeding are identified. Documents that are made exhibits are accessible to members of the public and become part of the hearing record. The Tribunal’s decisions, naming the parties and referring to the exhibits as necessary, is public. The Tribunal provides its decisions to three legal reporter services: the Canadian Legal Information Institute, Quicklaw and Canadian Human Rights Reporter (CHRR).

11Any order of confidentiality, whether to close the hearing, to keep the name of any party undisclosed, or to keep any exhibit confidential, must be restricted, in my view, to circumstances that are for some reason exceptional. That is the assumption behind section 9 of the SPPA, and it must be the basis of interpreting Rule 5.11. Otherwise the principles of openness and transparency, fundamental to this province’s legal system, would be seriously undermined.

12This Tribunal commonly hears cases in which sensitive and otherwise private medical information is received through oral testimony and documents such as reports from health professionals. That is in the nature of applications under the Code, a large proportion of which involve individuals who are alleging discrimination on the ground of disability. The Tribunal has not applied any blanket rule ordering any type of confidentiality for applicants with disabilities.

13It is understandable in this case, given the nature of the complaint, that the applicant would prefer some measure of privacy. However, in my view, there is nothing about this applicant, or about the facts as alleged in the complaint, or about the nature of the likely testimony or documentary evidence, that would compel the Tribunal to conclude that the normal standards of a public hearing should not apply. Granting the applicant’s request would enable him to keep his identity private while he pursues in a public forum allegations of discrimination against a named individual and a named corporation.

14While the material from health professionals that is likely to be put in evidence in this case may be of a sensitive nature from the point of view of the applicant, there is no indication that it is any more sensitive or embarrassing than the evidence in many other cases.

15However, as always, the adjudicator conducting the hearing retains the discretion to write his or her decision keeping in mind the sensitivities of the applicant.

16Again, in my view, the nature of this case does not justify that level of departure from the fundamental principles of an open and transparent legal system. The fact that the applicant has a disability is not in itself sufficient justification to not disclose his identity.On balance, in my view, the desire for privacy by the applicant, including the concern about sensitive information, is outweighed in these circumstances by the principle of openness.

17In summary then, the applicant has not provided sufficient reason to justify his Request for a Rule 5.11 order. The Request is therefore denied.

Order

18The applicant’s request for an adjournment and a confidentiality order are denied.