Farhan Khan v. City of Toronto and Lorraine Davis, 2009 HRTO 820

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Farhan Khan

Applicant

-and-

City of Toronto and Lorraine Davis

Respondents

interim DECISION

Adjudicator: Jay Sengupta

Date: June 10, 2009

Citation: 2009 HRTO 820

Indexed as: Khan v. Toronto (City)

WRITTEN submissions by:

Farhan Khan , Applicant ) Kate Stephenson,

) Counsel

City of Toronto and Lorraine Davis, Respondents ) Ansuya Pachai

) Counsel

1The applicant, Farhan Khan, filed an Application with the Tribunal on December 3, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). He claims that he suffered discrimination in receipt of goods, services and facilities on the basis of race, colour and creed.

2The hearing in this matter is scheduled for July 2 and 3, 2009. The respondents have made a request to reschedule this matter that is opposed by the applicant. A conference call was held on June 9, 2009 to hear the parties’ submissions. At the close of the conference call, I made a ruling that the matter would proceed on the dates scheduled and that written reasons would be included in the final decision. Counsel for the respondents requested written reasons for the ruling earlier and, if possible, prior to the scheduled hearing dates. In the circumstances, although not required to do so, I am prepared to issue my reasons at this time.

3The Notice of Confirmation of Hearing is dated April 8, 2009. Counsel for the respondents indicates that the date stamp on her copy of the Notice shows that it was received by the respondents on April 16, 2009. A copy of the date stamp was not provided to the Tribunal but I am prepared to accept that the document was received on the date counsel indicates.

4The respondents made a request to reschedule by way of fax, dated April 21, 2009. The file number referenced on the fax cover sheet and letter does not correspond to the file number assigned to this Application and is incorrect. The reason provided for the request to reschedule is that the named personal respondent, a potential witness and a senior instructing staff member had previously scheduled vacation on July 2 and 3, 2009. In the April 21 letter, counsel indicates that she is canvassing her witnesses for their availability and that she will provide alternate dates at a later time.

5The second letter from the respondents, dated April 29, 2009, also sent by fax and also referencing an incorrect Tribunal file number, provides alternate dates for scheduling when all five witnesses for the respondent are available. Those dates are between September 21 and 29, 2009 inclusive.

6Counsel submits that the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments (“Information Bulletin”) distinguishes between requests to reschedule and adjournment requests. She argues that the request to reschedule was made within the timelines outlined in the Information Bulletin as it was received by the Registrar within five days. She submits that the request ought to be granted because the Notice of Confirmation of Hearing was issued without consultation with the parties as to availability. She also indicates that three of the five people attending the hearing on behalf of the respondents will not be available due to previously scheduled vacations on the hearing dates because they fall immediately after a statutory holiday.

7Counsel for the applicant points out that the Information Bulletin indicates that rescheduling will not occur merely because the dates scheduled are inconvenient for the parties or their representatives. She argues that even if requests are made within the time outlined, rescheduling is not guaranteed unless there is a valid reason for doing so.

8She further argues that the request to reschedule was not made within 5 days and that the alternate dates offered are not within the 16 to 22 week window contemplated by the Information Bulletin.

9Pointing to language in the Information Bulletin that the Tribunal’s process will be responsive to the realities of stakeholders and parties, she indicates that the applicant has an interest in concluding this matter as soon as possible. The dispute between the parties deals with, in part, an application for basic social assistance income which has not been granted. The applicant and his wife have recently had a child and the family is without any income at present. He asserts through counsel that the only thing tying him to this location is this Application and his search for employment has had to be geographically limited so he remains available to deal with this Application. His position is that his job search could be expanded once this matter is concluded so that he is not required to remain available to attend to this Application. She argues that any delay caused by rescheduling would cause the applicant and his family significant prejudice.

10Counsel also argues that the Tribunal has the power in its Rules to decide which witnesses it will hear from and that all of the respondents’ witnesses may not be needed. Finally, she confirms that the applicant did not intend to request further amendment, or to add allegations or parties in his May 15, 2009 correspondence and that the only outstanding request to amend the pleadings deals with the remedial section and ongoing losses contained in the Request for Order During Proceedings that is to be addressed at the beginning of the hearing.

11In reply, counsel for the respondents points out that serious allegations have been made by the applicant and that all the witnesses the respondents intend to call have relevant and important evidence to offer the Tribunal in making its decision. She argues that one of the realities that the Tribunal ought to take into account in making its decision is that potential witnesses often take time off work to spend with their families and vacation, particularly in the summer months and surrounding statutory holidays. She submits that requiring the hearing to proceed despite the difficulties this would cause the witnesses and the parties constitutes more than mere inconvenience.

12When asked whether the parties and witnesses with previously scheduled vacations would incur cancellation penalties or face some other difficulty or harm if the hearing was to proceed on July 2 and 3, 2009, counsel for the respondents indicated she had no such information.

13After considering the submissions of the parties and the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments, I ruled that the hearing will proceed on the dates already scheduled. The request to reschedule made by the respondents is denied for the following reasons.

14Accepting that the Notice of Confirmation of Hearing was received by the respondents on April 16, 2009, I note that the communication requesting rescheduling, although sent within 5 days of receipt, referenced the incorrect file number. Despite this deficiency, the request did refer to the names of the parties correctly so that it could be and was eventually matched to the appropriate Application.

15The Information Bulletin contemplates that alternate dates will be offered by the party seeking the rescheduling in the initial communication. In this case, alternate dates were not offered until the second letter, sent eight days later.

16An additional difficulty, however, is that the alternate dates offered fall outside the 16 to 22 week period outlined in the Information Bulletin which indicates that “except in extraordinary circumstances, the hearing must be scheduled so that it is completed within 22 weeks of the date of the Confirmation of Hearing”. Counsel for the respondents acknowledged that the dates offered fall past 22 weeks. However, the respondents have not proposed alternate dates that fall within the period or provided any information to show that circumstances exist in this case that justify exceeding that standard.

17The Information Bulletin indicates that hearings will not be rescheduled merely because the date is inconvenient for the parties or their representatives. It goes on to outline some valid reasons for unavailability, such as being out of the province or country, a previously arranged appointment that cannot be changed or a previously scheduled court or tribunal appearance. Although the respondents indicate vacations have already been scheduled, when invited to provide me with additional information concerning any financial cancellation penalties or harm that would be associated with changes to vacation plans, none was offered. There is no assertion that the plans made cannot be altered or that the individual or organizational respondents will be prejudiced by proceeding as scheduled.

18In contrast, I accept the applicant’s assertions that he and his family would be further harmed by any delay and that granting a request to reschedule would cause him prejudice.

19In the circumstances, having weighed the arguments made, I do not find sufficient reason to grant the respondents’ request to reschedule the hearing dates. The hearing will commence as scheduled at 9:30 a.m. on July 2, 2009.