Vizcaya v. University of Toronto, 2009 HRTO 2128

Human Rights Tribunal of Ontario

Between:

Salvador Vizcaya Applicant

-and-

University of Toronto (University College), Robin Morgan, Sylvia Bashevkin and Ken Aucoin Respondents

Interim Decision

Adjudicator: David A. Wright Date: December 8, 2009 Citation: 2009 HRTO 2128 Indexed as: Vizcaya v. University of Toronto

Appearances

Salvator Vizcaya, Applicant ) No one appearing University of Toronto (University College), Robin Morgan, Sylvia Bashevkin and Ken Aucoin, Respondents ) S. John Page and Sari Springer, Counsel

Decision

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19. It alleges discrimination in goods, services and facilities on the basis of ethnic origin and disability and reprisals. A previous Interim Decision on this matter is reported at 2009 HRTO 1116.

2The hearing was scheduled, by letter dated August 4, 2009, for December 7, 2009.

3Following an extension granted by the Registrar, the applicant’s witness statements and the documents the applicant was relying upon were due on October 23, 2009. In a Case Assessment Direction dated November 10, 2009, the applicant was directed to file these materials immediately. The applicant did not do so.

4On Friday, December 4, 2009, the applicant telephoned the Tribunal to advise that he would not be attending the hearing for medical reasons. The Tribunal wrote to the parties by e-mail at 1:09 p.m., as follows:

The Tribunal has received a telephone message from Mr. Vizcaya stating that he will not be attending the hearing on Monday. If Mr. Vizcaya asks that the hearing be rescheduled, he must make a request in writing, with a copy to counsel for the respondents. The request must fully explain the reasons for the request. The Tribunal’s policy is to only grant adjournments in exceptional circumstances such as sudden illness of a party or witness.

If the hearing is not adjourned, it will proceed on Monday and if Mr. Vizcaya does not attend, the application may be dismissed as abandoned, which is the Tribunal’s standard practice in such circumstances.

5At 4:43 p.m. on December 4, 2009, the Tribunal received a handwritten fax from Mr. Vizcaya which reads as follows:

I, Salvador Vizcaya, am not able to attend Monday’s hearing due to medical illness [details omitted]. Doctors and police have taken note.

The respondents have been notified by email – my email reply to their impossible to open email attachment (something about Tab 6, whatever that is).

6At 4:45 p.m. on December 4, 2009, the applicant wrote to counsel for the respondents in reply to an earlier e-mail with a corrected document for the document brief of the respondents, as follows:

reply:

what’s this? save to what? what tabs?

hrto registrar notified of medical illness, unable to attend December 7 hearing.

Sal Vizcaya

7As there was no time to determine the issue of adjournment on December 4, 2009, the hearing proceeded as scheduled on December 7, 2009 and the respondents asked that the Application be dismissed as abandoned. Among other submissions, counsel noted the last-minute notification that the applicant had not provided any documentation from a medical practitioner to substantiate his assertion that he was not able to attend and that he had time to obtain such documentation. He noted the extremely strong language and tone in the applicant’s materials and stated that the proceeding has caused anguish to the personal respondents. He stated that a delay would continue that anguish. He noted the multiplicity of legal proceedings related to these matters. He stated that the proceeding has caused considerable resources to be expended by the University of Toronto, a public institution, including the costs for one of its witnesses to fly to Toronto from the United States on December 7, 2009.

8I denied the respondents’ request, as in my view the applicant should have an opportunity to provide full medical documentation and to explain why he was unable to provide earlier notification of his inability to attend, both of which are important to a decision on whether the Application should be dismissed at this stage. Accordingly, if the applicant wishes to pursue this Application he shall, by December 22, 2009, write to the Tribunal, with a copy to the respondents and provide a letter from a registered medical practitioner that advises:

(a) Was the applicant medically able to attend a Human Rights Tribunal of Ontario hearing on December 7, 2009?

(b) If the applicant was unable to attend the hearing, when did such inability arise and, specifically, did it arise prior to December 4, 2009?

(c) When is it expected that the applicant will be medically able to attend a hearing?

9If the applicant does not comply with this direction, the Application shall be dismissed as abandoned.

10If the applicant provides a letter in accordance with the above direction, the respondents shall, by January 5, 2010, advise the Tribunal whether they still ask that the Application be dismissed. If they ask that the Application be dismissed, they shall provide written submissions in support of the request for dismissal. The applicant may respond to any such submissions by January 19, 2010.