HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jessey Villella
Applicant
-and-
The Regional Municipality of York Emergency Medical Services Branch, Ben Thompson and Joseph Neumayer
Respondents
AND B E T W E E N:
Jessey Villella
Applicant
-and-
The Regional Municipality of York Police Services Board and Vernon Ward
Respondents
AND B E T W E E N:
Jessey Villella
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Villella v. Regional Municipality of York Emergency Medical Services Branch
1These are three Applications filed under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), all dated June 29, 2009. The underlying complaints were all filed with the Ontario Human Rights Commission (the “Commission”) on June 28, 2007. This decision deals with a request by the applicant to adjourn the hearing scheduled to begin on November 16, 2010.
2The basis for the applicant’s request is set out in correspondence dated October 14, 2010:
The Applicant is unable to proceed on the 16th of November 2010 due to the short notice provided regarding the hearing date, and also because of another legal proceeding on that same day.
As you are well aware, the Applicant's father was scheduled to attend hearings both at the OLRB (when you worked in the OLRB Registrar's Office) and also at the HRTO, when you scheduled other hearing matters for other Applicant's (which this Applicant's father was also involved with), both during business hours, and also outside business hours.
You are also well aware that you cancelled hearing dates on short notice in other matters that this Applicant's father was also involved with, because something had come up for one of the several lawyers for one of the other parties in other matters.
It wasn't until your very last communication on this month that you finally provided the notice hearing for November 16, 2010 in these matters for this Applicant. You failed to provide any reason why it was not provided when it was provided to the other parties.
3The respondents The Regional Municipality of York Emergency Medical Services Branch, Ben Thompson and Joseph Neumayer as well as The Regional Municipality of York Police Services Board and Vernon Ward oppose the adjournment request. The Minister of Health neither opposed nor consented to the adjournment.
4In response to the positions taken by the respondents, the Tribunal requested further submissions from the applicant which were provided. The Tribunal specifically asked for clarification of the nature of the proceeding giving rise to the applicant’s request as follows:
In addition to any submissions he may wish to make the applicant should elaborate on the reasons for the Request including a description of the proceeding, when it was scheduled and any other explanations justifying the need for an adjournment of this hearing date in this matter.
5The applicant addressed none of these issues in his submissions.
6The adjournment request is denied.
7The date for this hearing was set in May 2010. Due to an administrative error a Confirmation of Hearing and Required Preparation (“Confirmation”), dated May 5, 2010 identified the date for the hearing as November 6, 2010. November 6, 2010 is a Saturday. This typographical error was corrected on May 10, 2010 when an amended Confirmation was sent to all of the parties. The applicant states that he did not receive this Confirmation and that in correspondence to the Tribunal he referenced the incorrect date.
8The Tribunal has no indication that the Amended Confirmation was not received by all of the parties. However, the applicant does appear to have understood the hearing date was November 6, 2010 as evidenced by references to the incorrect date in correspondence from him in June 2010 after the amended Confirmation was sent to the parties. Despite this in a Case Assessment Direction, dated August 23, 1010, the Tribunal identified the date of the hearing:
The respondent has raised a substantial issue in its Request. A hearing in this and two related matters has already been scheduled to begin on November 16, 2010. The applicant has not waived his right to make oral submissions. I find that the most just, fair and expeditious manner of proceeding is to deal with this Request at the outset of the hearing in November.
9In Interim Decision 2010 HRTO 1810 released on September 2, 2010 dealing with a number of issues in these cases, the Tribunal identified the hearing date for these matters as November 16, 2010 in paragraph 13 of the Decision.
10The applicant first questioned the date on October 1, 2010 stating that the Tribunal had erred in the Case Assessment Direction of August 23, 2010 and the Interim Decision of September 2, 2010 as set out above. The applicant wrote again on October 5, 2010 about, amongst other things, the date of the hearing. On neither occasion did the applicant indicate that his representative was not able to attend on November 16, 2010. The Tribunal advised the applicant that the correct date of the hearing was November 16, 2010 on October 5, 2010. As indicated earlier the applicant made his request for an adjournment on October 14, 2010.
11While the Tribunal’s Practice Direction 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 Practice Direction are equally applicable to Transition Applications. The Practice Direction states the following regarding requests for adjournments:
The HRTO discourages requests for adjournments outside the ten-day period to request rescheduling of a hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.
Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.
The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax, copied to the other parties.
The HRTO typically will not adjourn a hearing date because the parties wish to “engage in settlement discussions” or are “close to a deal.” The HRTO encourages mediation and settlements, and will assist the parties in this regard. Where parties believe they may be able to resolve a matter shortly before the scheduled hearing, they should advise the Registrar and the HRTO may make a mediator and mediation room available. The parties may also request mediation/adjudication in accordance with Rule 15.2.1 (and Rule 8.5 for s. 53(3) and 53(5) applications). However, the HRTO discourages the cancellation or adjournment of hearing dates so that the parties can explore settlement
12While I accept that the applicant appears to have believed that the hearing was to begin on November 6, 2010, it should have been clear to him by early September that there was a problem with the date. Given these circumstances the timing of this request to adjourn is troubling coming more than a month after the applicant should have been aware that there was a problem with the hearing date and two weeks after he first raised the issue with the Tribunal. The applicant did not request an adjournment at his first opportunity but waited at least a further two weeks and possibly almost six weeks after he knew or should have known that there was an issue with the date.
13Additionally the grounds for the request are less than compelling. First the applicant says that he received short notice of the hearing. This is not the case. The applicant’s position is that the date of November 6 was set on May 5, 2010. How can the moving of the date 10 days back from the date he is prepared to attend be considered short notice? I would reject the request if that were the only basis for it.
14The other ground if substantiated might have resulted in the adjournment being granted given the confusion about the hearing date. The applicant states that he requires an adjournment “because of another legal proceeding on that same day”. However, it is not said what the other legal proceeding is or when it was scheduled. Despite a specific request and a further opportunity to make these submissions the applicant has refused to clarify his request. The failure of the applicant to provide clarification of this issue is puzzling. At this stage and in the absence of further clarification of this issue the adjournment request is denied.
15The applicant relies on Interim Decision 2010 HRTO 260 for the proposition that the failure to provide a party a Confirmation of Hearing Date is a denial of natural justice justifying an adjournment request. Not every failure of notice requires that the hearing be adjourned. In this case the applicant had notice of the hearing – he states that he understood it was proceeding on November 6, while the actual date was November 16, 2010. In the absence of any other consideration it is not clear how a delay of 10 days should require as a remedy a further delay of several months. The other justification for the request advanced by the applicant might have had merit. However, the applicant’s apparent refusal to provide further explanation, although invited to do so, leaves the Tribunal with no clear factual basis upon which to grant an adjournment on that basis and makes it inappropriate to grant the request in the circumstances.
16I am not seized.
Dated at Toronto, this 1st day of November, 2010.
“Signed by”
David Muir
Vice-chair