LaFortune v. Washington Mills Electro Minerals, 2009 HRTO 14

Human Rights Tribunal of Ontario

Between:

Tom LaFortune Applicant

-and-

Washington Mills Electro Minerals Corporation Respondent

Interim Decision

Adjudicator: Kaye Joachim Date: January 7, 2009 Citation: 2009 HRTO 14 Indexed as: LaFortune v. Washington Mills Electro Minerals

Reasons for Decision

1This is an Application filed October 27, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision addresses a request made by the respondent that proceedings in this matter be adjourned and held in abeyance. The basis for the request is that the respondent’s particular counsel within the law firm retained by the respondent is on maternity leave. The respondent requests these entire proceedings be held in abeyance until counsel returns from leave.

3The applicant has not consented to the request.

4The respondent, through its temporary counsel, asserts that the leave of absence is a Code-related accommodation of counsel, and the adjournment is required in order to preserve the respondent’s right to its chosen legal representative. The respondent states “while it is possible for another lawyer in our office to assume carriage of the file ….if the Tribunal refuses to grant an adjournment, our client will incur additional costs associated with a second lawyer getting up to speed on this matter.”

5In my view, the issue that is engaged in these particular circumstances is the request by the respondent that these entire proceedings be held in abeyance for a period of over six months because it wants to be represented by a particular counsel. The issue is really about the choice of counsel.

6In other circumstances extensive involvement in a complex matter by a single counsel may weigh heavily in favour of taking steps to permit the same counsel to retain carriage of a matter even where the need for an appropriate Code-related accommodation requires a lengthy adjournment. These circumstances do not exist here.

7The initial complaint which gives rise to the present Application was filed with the Ontario Human Rights Commission on March 9, 2005. After its response was filed with the Commission the respondent states there was almost no investigation or other activity on the complaint. This is not a situation where the nature of the counsel’s participation in the file has been extensive so that it would be onerous to instruct a new representative.

8The length of the adjournment requested is likely to delay this hearing by six to seven months at a minimum. It includes a request not to take any steps until counsel returns from her leave which presumably means the respondent would not file its statement of facts and response to remedy, make disclosure, or file witness lists and documents until some time after May 2009. Assuming that the counsel does return May 31, 2009 (no date having been provided), she will need time to prepare these materials which could delay this hearing until July 2009 at the earliest.

9In my view it would not be fair, just or expeditious to adjourn this Application for six or seven (or more) months to permit the respondent to be represented by a particular counsel in circumstances where counsel has had limited involvement with the Application to date and other counsel from the same law firm are readily available. Section 53(4) of the Code requires that applications brought under section 53(3) be dealt with expeditiously. The right of the applicant to have the Application dealt with expeditiously must be balanced against the request by the respondent to be represented by particular counsel.

10In my view the issue of accommodation of a Code-related need does not arise in these specific circumstances. There may be circumstances where it may be necessary to explore and implement particular accommodations in relation to Code-related needs of counsel to ensure full access to the Tribunal. The Tribunal has established a comprehensive Policy on Accessibility and Accommodation which applies not only to parties but counsel as well. That Policy also establishes a procedure to ensure that accommodation requests are dealt with in an effective way, and allows the Tribunal to carry out its statutory mandate while at the same time ensuring that its services are fully accessible.

11It is neither necessary nor appropriate in these circumstances for the Tribunal to engage in an analysis of whether “taking no further steps” in this proceeding, for a six month period, while a particular counsel is on a maternity leave, is an appropriate accommodation, or is otherwise required by the Code.

12Accordingly, the respondent’s request to adjourn the processing of this Application until after May 2009 is denied.

13As the respondent has declined to participate in mediation, this matter will proceed directly to a case resolution conference in accordance with Rule 9.1. The timelines for the respondent will be extended to permit alternative counsel to become familiar with the Application.

14The Tribunal makes the following orders:

• Within 30 days following the date of this decision, the applicant shall deliver to the respondent and file with the Tribunal, a statement of any additional facts the applicant intends to rely upon and a description of the remedies sought. In addition, the applicant shall deliver to the respondent a copy of all arguably relevant documents in the applicant’s possession, except where privilege is claimed.
• Within 60 days following the date of this decision, the respondent shall deliver to the applicant and file with the Tribunal a statement of any additional facts the respondent will rely upon and the respondent’s position with respect to the requested remedies. In addition, the respondent must deliver to the applicant a copy of all arguably relevant documents in the respondent’s possession, except where privilege is claimed.
• Within 10 days of the date of this decision, the parties are directed to advise the Registrar-Transition of their availability for a one day case resolution conference during the weeks of April 6 or April 13, 2009, failing which the Tribunal may set the date for the case resolution conference without further consultation with the parties.