Selvyn Wilson v. The Regional Municipality of York, 2009 HRTO 2020

Human Rights Tribunal of Ontario

BETWEEN:

Selvyn Wilson Applicant

-and-

The Regional Municipality of York Respondent

-and-

Canadian Union of Public Employees, Local 905 Intervenor

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: November 25, 2009 Citation: 2009 HRTO 2020 Indexed as: Wilson v. York (Regional Municipality)

1This is an Application filed on February 6, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination in employment on the basis of disability. The matter is scheduled for hearing on December 1, 2009. This Interim Decision deals with the applicant's request for an adjournment, and the respondent's request for particulars and disclosure.

BACKGROUND

2On April 28, 2009, the applicant's bargaining agent, the Canadian Union of Public Employees, Local 905 (the "union"), filed a Request to Intervene, which was granted in a previous Interim Decision dated June 4, 2009: 2009 HRTO 751.

3The Tribunal sent the parties a "Confirmation of Hearing" Notice on July 31, 2009, scheduling the hearing for December 1, 2009.

4On August 21, 2009, the respondent produced a list of all of its arguably relevant documents, and copies of the documents, to the applicant in accordance with Rule 16, which mandates such disclosure within 21 days of the Tribunal sending a Confirmation of Hearing. The applicant did not produce his list or any documents.

5On October 16, 2009, the respondent wrote to the Tribunal advising that it was unable to fulfil its disclosure obligations under Rules 16 and 17, namely to produce copies of all documents it intends to rely on at the hearing and to produce a list of proposed witnesses with summaries of anticipated evidence, due to the fact that the applicant had failed to comply with his disclosure obligations. The respondent argued that, in the absence of documentary evidence and the names of witnesses from the applicant, the respondent was unable to confirm the evidence upon which it intends to rely at the hearing.

6On November 16, 2009, counsel for the applicant, S. Sean Hagler, wrote to the Tribunal indicating that he is no longer representing the applicant. He also stated that he is, in any event, unavailable on the scheduled hearing date.

7By email correspondence dated November 19, 2009, the applicant wrote to the Tribunal, with a copy sent to the respondent and intervenor, requesting an adjournment of the hearing. The reasons given were that the applicant needs "more time to acquire documents...especially medical documents" in support of his case. He also indicated that he needs more time to identify witnesses and secure new counsel.

8By way of correspondence faxed to the Tribunal on November 19, 2009, and copied to the other parties, counsel for the respondent again raised concerns over the applicant's failure to comply with the Rules. The respondent requested the Application be dismissed for failing to disclose a prima facie case and, alternatively, that the Tribunal order the applicant to provide particulars and documentary production. The respondent did not indicate whether it opposes or consents to the applicant's adjournment request.

9No submissions were received from the union with respect to the preliminary issues or the adjournment request.

REQUEST TO ADJOURN

10The Confirmation of Hearing stated that requests for adjournments would be dealt with according to the Tribunal's "Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments." The Information Bulletin provides that requests to reschedule must be made within five days of receiving the Notice of Hearing, and goes on to state the following regarding requests for adjournment:

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 alternative dates for the rescheduling of the mediation or hearing. Alternative 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.

11In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4, the Tribunal stated as follows:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties' dispute will no longer be used. For that reason, among others, the Tribunal's Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel's availability with these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

12The Tribunal has held that a party's decision to retain counsel after the hearing has been scheduled is not an "extraordinary circumstance" justifying an adjournment simply because counsel is unavailable.

13The only reasons the applicant has cited in support of his request relate to matters that were entirely within his control – retaining counsel, compiling evidence and identifying witnesses. The applicant has had ample opportunity to prepare his case. There is no indication that he did not have sufficient notice of the hearing date. Disclosure deadlines, requiring the applicant to produce witness lists and statements of intended evidence along with copies of all documents on which they intend to rely, are now long overdue, the implications of which are addressed below. It is clear that there is nothing extraordinary about the applicant's circumstances. Lack of preparation and failure to comply with the Tribunal's Rules alone are not valid reasons to grant an adjournment.

14The applicant made submissions with respect to prejudice to the respondent, arguing that he is providing "plenty of notice" that should not disrupt the respondent's preparation. The central question is not whether the balance of convenience favours granting the adjournment, but rather whether extraordinary or exceptional circumstances are present to justify re-scheduling the hearing. The applicant has not cited any such circumstances. The request is therefore denied.

PARTICULARS AND DISCLOSURE

15The respondent argues that the applicant has failed to plead sufficient facts which, if established, would support his allegation of disability discrimination. The respondent seeks particulars about the applicant's disability, about any communications between the parties regarding the disability, and about specific actions of the respondent that constituted the alleged discrimination. In addition to the request for particulars, the respondent also notes that it has not received any disclosure, as required by Rules 16 and 17.

16Rule 6.2 of the Tribunal's Rules of Procedure requires that an application specifically set out the underlying facts in support of allegations of discrimination. Rule 6.2 states:

A complete Application must provide the information requested in every section of the Application form and must set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened, and the names of person(s) or organization(s) alleged to have violated the Applicant's rights under the Code.

17Rule 5.7 provides that a possible consequence for a party which does not set out specific facts in its application or response is that the Tribunal may not allow the party to introduce evidence with respect to those facts. It reads as follows:

Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 17.2 or 18.2, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay in the proceedings.

18Disclosure obligations are outlined in Rules 16 and 17, which set deadlines for producing documents, witness lists and witness statements of intended evidence. According to the Rules, no party may rely on or present any document or witness not disclosed in accordance with Rules 16 and 17 prior to the hearing, except with the permission of the Tribunal.

19The applicant has taken no steps whatsoever to comply with Rules 16 and 17. His correspondence of November 19, 2009 indicates he seeks an adjournment to undertake tasks, such as gathering evidence and identifying witnesses, which were to have been completed weeks ago.

20The hearing shall proceed as scheduled on December 1, 2009, beginning with the applicant's case. The applicant is ordered to comply with his Rule 16 and 17 obligations immediately, failing which he may be prevented from introducing any evidence or calling any witnesses at the hearing.

21The respondent is not required to provide any further disclosure at this time and will not be expected to call any evidence on the first day of the hearing. The parties should be prepared to make submissions at the outset of the hearing regarding the respondent's request for early dismissal.