Marsden v. Ontario (Community Safety and Correctional Services), 2009 HRTO 1542

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne Marsden

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Office of the Chief Coroner),

David Evans and Barbara Spoelstra

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: September 24, 2009

Citation: 2009 HRTO 1542

Indexed as: Marsden v. Ontario (Community Safety and Correctional Services)

[1] The applicant filed an Application with the Tribunal on September 22, 2009, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging that she was discriminated against in the provision of services on the basis of her disability. The applicant has requested that this Application be expedited and heard with her Application, Tribunal file number 2009-01170-I (“the first Application”), in which she claims that the decision by the Coroner to not convene an inquest into the death of her mother contravenes s. 1 of the Code on the ground of age. The first Application is scheduled for a hearing on September 30, 2009.

[2] The basis for the Applicant’s Request to Expedite is that this Application shares the same background facts as the first Application. She argues that if this Application is not expedited, it will mean a great deal of duplication of resources for herself, the respondents and the Tribunal. Accordingly, she submits that hearing this Application with the first Application ensures that the manner is heard in the fairest, most just and most cost-effective manner possible. She further states that it would harmful to her emotional health to prolong the hearing of the issues any longer than is necessary.

[3] The Tribunal’s Rules of Procedure provide for applications to be dealt with in an expedited manner in urgent circumstances. Rule 21.1 provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application and the harm that would result if the request is denied.

[4] In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9 the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

[5] In Ebrahimi v. Durham District School Board, 2009 HRTO 1062, the Tribunal noted that another basis for expediting an application may be where a requested (and arguably appropriate) remedy will be moot, or unavailable, without expediting an application.

[6] In accordance with Rules 5.2 and 21.3 of the Tribunal’s Rules of Procedure, the Tribunal does not require a Response to Request to Expedite from the respondent. Having reviewed the applicant’s materials, I cannot conclude that this Request to Expedite meets the high threshold required by the Tribunal’s jurisprudence. The Tribunal has held that the emotional harm cited by the applicant does not generally constitute an indication of urgency as compared with other discrimination cases.

[7] In addition, expediting the processing of this Application to allow it to be heard with a matter that is scheduled for one week from today would require significant abridging of applicable timelines. While I appreciate the applicant’s argument that the allegations in this Application arise out of the same interaction that forms the basis for the discrimination alleged in the first application, the allegations of discrimination are significantly different and two additional personal respondents are named in this Application. In the circumstances, it would not be appropriate to require the respondents named in this Application to provide a Response, and prepare to deal with these new allegations of discrimination at a hearing scheduled for less than one week from today.

[8] The applicant has failed to demonstrate that expedition is necessary to ensure a fair adjudication, or to prevent the remedy she is seeking from becoming moot. Nor does it appear that the Request is otherwise appropriate, given the potential unfairness to the respondents from having to prepare to respond to a separate claim of discrimination on very short notice. The Request to Expedite is denied.

[9] However, given that some aspects of the two Applications appear to be interrelated, the Tribunal requests submissions from the parties as to whether the hearing for September 30, 2009, should be cancelled and the two Applications joined and heard together at a later date. Such submissions must be delivered to the other party and filed with the Tribunal by 4:00 p.m. on Friday, September 25, 2009.