Mehdy Abdollahnejad v. Toronto Police Services Board and Jason Gobeil, 2010 HRTO 1205

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mehdy Abdollahnejad

Applicant

-and-

Toronto Police Services Board and Jason Gobeil

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: May 28, 2010

Citation: 2010 HRTO 1205

Indexed as: Abdollahnejad v. Toronto Police Services Board

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), dated December 10, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on April 12, 2006.

2The Case Resolution Conference (hearing) in this matter is currently scheduled to proceed next Tuesday, June 1, 2010.

3In my Interim Decision in this matter, dated May 20, 2010, 2010 HRTO 1137, I noted that the applicant had requested and was granted an extension to April 15, 2010 to file a statement of additional facts and remedy. However, no such material was filed with the Tribunal. I also noted that, by May 12, 2010, the applicant had been required to file a list of any witnesses he proposed to call at the hearing, a brief statement of their anticipated evidence, and copies of any documents he proposed to rely on at the hearing. Once again, no such material was filed with the Tribunal.

4In light of the applicant’s failure to file material with the Tribunal, I stated that it was not clear to me whether the applicant still intended to proceed with this Application. Accordingly, in view of the nearness of the scheduled hearing date, I required the applicant or his representative to confirm with the Tribunal and the respondents whether the applicant still intends to proceed with this Application and whether he intends to appear at the hearing, and to do this within seven days of the date of my Interim Decision. I further stated that, if the Tribunal did not receive such confirmation, the Tribunal may cancel the hearing and dismiss the Application as having been abandoned.

5The seven day period for filing such confirmation expired on May 27, 2010, and the required confirmation was not provided by the applicant or his representative. As a result, after the end of the business day on May 27, 2010, both respondents wrote to the Tribunal to request that the hearing be cancelled and that the Application be dismissed as abandoned, citing the prejudice of them being required to appear at a hearing where the applicant has not fulfilled his obligation to file pre-hearing materials and has not provided any confirmation as required in my Interim Decision that he intends to appear.

6On May 28, 2010, the Tribunal received correspondence from the applicant’s representative stating that she is no longer representing the applicant in this matter and had been advised by him to not disclose any information related to his status with respect to representation. She further stated her understanding that the applicant has always and is still receiving all documentation directly from the Tribunal, and that she is not sure what his intentions are with respect to the hearing.

7I have confirmed with Tribunal staff that the Notice of Case Resolution Conference, dated January 18, 2010, which set the date, time and location for the hearing and detailed the parties’ pre-hearing obligations, was sent directly to the applicant as well as to his representative. I also have confirmed with Tribunal staff that my Interim Decision, dated May 20, 2010 also was sent directly to the applicant as well as to his representative.

8Late on the morning of May 28, 2010, the applicant contacted the Tribunal by telephone to advise that he intended to continue with his Application, but was seeking an adjournment of the June 1, 2010 hearing date. The applicant also stated that if the adjournment request was denied, he would attend the hearing as currently scheduled. The applicant was told to send something to the Tribunal in writing and copy this to the other parties.

9At 1:08 p.m. on May 28, 2010, the Tribunal received a fax from the applicant requesting an adjournment of the June 1, 2010 hearing date on the basis that he has gone through a family emergency that has taken him away from the country for a couple of months, that since his return he has made arrangements to move to a new apartment as of July 1, 2010, that he is attempting to find legal representation, and that he has not had enough time to prepare for the case as of yet.

10While the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments does not specifically apply to Transition Applications, nonetheless the principles set out in this Information Bulletin are equally applicable to Transition Applications.

11The Tribunal’s Information Bulletin provides that requests to reschedule must be made within five (5) days of receiving the Confirmation of Hearing and that thereafter, adjournments will be granted only in extraordinary circumstances. The Information Bulletin states the following regarding requests for adjournments:

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 alternate dates for the rescheduling of the mediation or hearing. Alternate 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.

12The reasons for the applicant’s adjournment request do not constitute exceptional circumstances that would permit an adjournment. The applicant has known since January 2010 that the hearing was scheduled for June 1, 2010. While the Tribunal is sympathetic to the applicant’s personal circumstances, this does not provide a sufficient justification for an adjournment of the scheduled hearing date or an explanation as to why he waited so long to request the adjournment, particularly as the applicant appears to have been back in Canada for at least some period of time. With regard to the issue of legal representation, I note that the applicant did have representation previously in this case, and he does not provide an explanation as to why he did not take earlier steps to seek alternate representation. Accordingly, the request for adjournment is denied.

13While the applicant did not strictly comply with the requirement as set out in my Interim Decision, dated May 20, 2010, he has now confirmed that he intends to proceed with his Application and intends to appear at the hearing on June 1, 2010. Accordingly, in these circumstances, I am not prepared to find that the applicant has abandoned his Application.

14As a result, the hearing will proceed as scheduled on Tuesday, June 1, 2010 commencing at 9:30 a.m. Any issues regarding the applicant’s failure to file pre-hearing materials may be raised before the adjudicator at the hearing.

15I am not seized.