HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Damola Alabi

Applicant

-and-

Cancer Care Ontario

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: February 10, 2010

Citation: 2010 HRTO 302

Indexed as: Alabi v. Cancer Care Ontario

appearances BY

Damola Alabi, Applicant ) On his own behalf

Cancer Care Ontario and Mark Mycyk, ) Jennifer Fantini, Counsel

Respondents )

INTRODUCTION

1The purpose of this Interim Decision is (a) to provide written reasons for granting an adjournment of the hearing scheduled for January 18, 19 and 20, 2010, (b) to provide directions to the applicant’s counsel with respect to rescheduling the hearing, and (c) to deal with the respondents’ Request to remove the individual respondent from the Application.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 19, 2008, which named Cancer Care Ontario as a corporate respondent and Mark Mycyk as an individual respondent. The respondents filed a Response to the Application on February 19, 2009, and the applicant filed a Reply to the Response on March 12. The parties then attended a mediation meeting at the Tribunal on April 30, which did not result in a settlement of the Application.

3On August 26, 2009, the Tribunal issued a Confirmation of Hearing Notice to the parties, which informed them that the hearing is scheduled for December 8, 9 and 10, 2009. The Notice also informed them that requests for adjournments will be dealt with in accordance with the Tribunal’s Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments. The Information Bulletin provides that requests to reschedule a hearing must be made within five (5) days of receiving the Notice, and thereafter, requests for adjournments will only be granted in extraordinary circumstances, such as the illness of a party, witness or representative.

4The Confirmation of Hearing Notice also set out the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses. Rule 16 requires each party to deliver to every other party a list and copy of all arguably relevant documents in its possession by no later than 21 days after the date of the Notice, and to deliver to every other party and file with the Tribunal a list and copy of all documents that it intends to rely on no later than 45 days prior to the first scheduled day of hearing. Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list and brief statement summarizing the expected evidence of each witness no later than 45 days prior to the first scheduled day of hearing.

5On September 1, 2009, the applicant’s counsel, Ernest Guiste, sent the Tribunal a letter, which requested that the hearing be rescheduled to January 2010 because he had a civil trial on a different matter scheduled from November 16 to December 11. On September 21, 2009, the Tribunal issued a Re-Scheduled Confirmation of Hearing Notice to the parties, which informed them that the hearing is scheduled for January 18, 19 and 20, 2010.

6In accordance with the Hearing Notices and Rules 16 and 17, the parties were required to deliver to each other all arguably relevant documents in their possession by no later than September 16, 2009, and they were required to disclose to each other and file with the Tribunal all documents that they intended to rely on and a witness list and summary witness statements by no later than December 4.

7The respondents filed the documents that they intended to rely on and their witness list and summary witness statements with the Tribunal by December 4, 2009, but the applicant did not.

8On December 18, 2009, the respondents’ counsel sent the Tribunal a letter, which stated that the applicant had failed to comply with the disclosure requirement of Rules 16 and 17, notwithstanding the fact that she had sent follow up letters to the applicant’s counsel on September 22, September 28 and December 3. She also filed a Request for an Order During Proceedings, which requested that the Tribunal order the removal of the individual respondent from the Application. The applicant’s Response to the Request was due on January 4, 2010.

9On December 23, 2009, the applicant’s counsel sent the Tribunal a letter, which stated that the applicant intended to rely on documents that were already in the possession of the respondents, except for documents on income, which were forthcoming and would be produced upon receipt. The letter did not address the applicant’s failure to disclose a witness list and summary witness statements, or what the applicant’s position was with respect to the respondents’ Request that the Tribunal order the removal of the individual respondent from the Application.

10The applicant did not file a Response to the respondents’ Request for an Order During Proceedings by January 4, 2010. On January 7, the applicant’s counsel sent the Tribunal a letter, which stated that the parties were requesting an adjournment of the hearing. He attached a letter of consent from the respondents’ counsel, but did not provide a reason for the adjournment request.

11On January 11, 2010, the Tribunal’s Registrar sent the parties a letter, which denied the adjournment request on the basis that the applicant’s counsel failed to identify an extraordinary circumstance as per the Tribunal’s Information Bulletin.

12On the same day, the applicant’s counsel sent the Tribunal another letter, which requested that the Tribunal reconsider its decision because, through no fault of his own, he was double booked. Specifically, he was obligated to represent a man charged in a guns and gangs related case in Superior Court from January 18 onward.

13On January 13, 2010, the Tribunal’s Registrar sent the parties a letter, which denied the adjournment request on the basis that a double booking is not an extraordinary circumstance as set out in the Tribunal's Information Bulletin.

14On January 17, 2010, the applicant’s counsel sent the Tribunal a further letter, which requested that the Tribunal reconsider its decision again because the scheduling of pre-trial motions in his gangs and guns related case is from January 18 onwards for possibly six weeks. However, the applicant’s counsel also attached a previous undisclosed letter to the respondents’ counsel dated January 6, which stated:

Further to our brief telephone conversation this morning, I have discovered that my scheduling problem is more serious than I originally thought. I also have a preliminary inquiry on a separate matter on January 20^th, 2010. Hence, I have the guns and gangs pre-trial motion commencing on January 18^th, and a civil matter the next day. [Emphasis added]

15On January 18, 2010, the hearing commenced as scheduled. The applicant had not filed the documents that he intended to rely on or his witness list and summary witness statements with the Tribunal. The applicant requested an adjournment of the hearing on the basis his counsel was unable to attend. I denied the request for the same reasons set out in the Tribunal’s Registrar’s January 13 letter.

16In his opening statement, the applicant stated that he intended to rely on certain documents in his possession and call one non-party witness. The respondents’ counsel objected on the basis that the applicant had failed to comply with Rules 16 and 17 of the Tribunal’s Rules on disclosure of documents and witnesses.

17I then referred the applicant to his counsel’s letter dated December 23, 2009, which stated that the applicant intended to rely on documents that were already in the possession of the respondents. The applicant responded that his counsel had failed to provide him with the respondents’ disclosure package of documents and witnesses. He further stated that in the circumstances he needed an adjournment of two weeks to prepare for the hearing.

18The respondents’ counsel did not consent to or oppose the applicant’s request, but stated that, from a professional perspective, she was troubled by the fact that the applicant had not received the respondents’ disclosure package of documents and witnesses.

19I granted the applicant’s request for an adjournment of the hearing with written reasons and directions to the parties to follow.

20On January 28, 2010, 55 days late, the applicant’s counsel filed with the Tribunal the documents that the applicant intends to rely on at the hearing. The applicant’s disclosure of his witness list and summary witness statements and his Response to the respondents’ Request for an Order During Proceedings remain outstanding.

ADJOURNMENT REQUEST

21As mentioned above, the Tribunal’s Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments clearly states that after a hearing has been rescheduled, requests for adjournments will only be granted in extraordinary circumstances, such as the illness of a party, witness or representative.

22The rationale for the Tribunal’s approach was set out in Vallentyne v. Royal Canada Legion, 2009 HRTO 660 at para. 4:

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 those 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.

23The Tribunal has also held that a party’s decision to change their representative after the hearing has been scheduled, witnesses’ unavailability due to vacation, and requiring more time to prepare are not “extraordinary circumstances” justifying an adjournment: see, for example, Vallentyne, supra, Khan v. Toronto (City), 2009 HRTO 820 and Knibbs v. Brant Artillery Gunners Club, 2009 HRTO 1601.

24In my view, the fact that the applicant’s counsel had double booked himself for the scheduled hearing dates is not an extraordinary circumstance as set out in the Tribunal's Information Bulletin, which is why I initially denied the applicant’s adjournment request. However, like the respondents’ counsel, I was troubled by the applicant’s subsequent revelation that his counsel had failed to provide him with the respondents’ disclosure package of documents and witnesses. Through no fault of his own, the applicant was unprepared and unable to proceed at the hearing. In my view, this constituted an extraordinary circumstance, which justified adjourning the hearing.

25At the same time, I am concerned that the applicant’s counsel has come precariously close to engaging in an abuse of the Tribunal’s process in order to have the matter adjourned. Specifically, I am concerned about the following:

• He failed to comply with the Tribunal’s Rules on disclosure of documents and witnesses and he failed to file a Response to the respondents’ Request for an Order During Proceedings, which means that he was not prepared to proceed on the scheduled hearing dates, regardless of any double booking.

• He misrepresented the reason for his adjournment request in his January 11 and 17, 2010 letters to the Tribunal. Specifically, he claimed that he was unable to attend because, through no fault of his own, he was scheduled to represent a man in a guns and gangs related case from January 18 onwards. In fact, he had sent a separate letter on January 6 to the respondents’ counsel, which indicated that he was scheduled for three separate matters on January 18, 19 and 20 (the guns and gangs pre-trial motion on January 18, a separate civil matter on January 19, and a preliminary inquiry on a yet another matter on January 20).

• He failed to provide the applicant with a copy of the respondents’ disclosure package of documents and witnesses, which left the applicant unable to prepare for and proceed at the hearing, and forced me to adjourn the hearing.

26The Tribunal has the power to control its own process in each particular case and to make such orders as are necessary to prevent an abuse of its process: see subsection 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “S.P.P.A.”), sections 39-43 of the Code, Rules 1.1, 1.5, 1.6 and 1.7 of the Tribunal’s Rules of Procedure, subsection 23(1) of the S.P.P.A., and Romanchook v. Garda Ontario, 2009 HRTO 1077 at paras. 41-47.

27In order to prevent a future abuse of the Tribunal’s process, I believe it is necessary to provide explicit directions to the applicant’s counsel with respect to rescheduling the hearing.

DIRECTIONS

28The Tribunal directs the applicant’s counsel to do the following:

(a) By no later than February 24, 2010, the applicant’s counsel shall communicate with the respondents’ counsel and advise the Tribunal as to their availability for a hearing in this matter. If no communication is received from the parties by that date, the Tribunal may set hearing dates without further consultation with the parties. The scheduled hearing dates shall be peremptory to the applicant, meaning that no further adjournment requests will be granted.

(b) The applicant’s counsel shall provide the applicant with copies of all documents related to the case that are in his possession, including but not limited to the respondents’ disclosure package of documents and witnesses, and this Interim Decision.

(c) By no later than February 17, 2010, the applicant’s counsel shall deliver to the respondents’ counsel and file with the Tribunal a witness list and brief statement summarizing the expected evidence of each witness.

(d) The applicant’s counsel shall provide the applicant with a copy of the Law Society of Upper Canada’s Rules of Professional Conduct.

29I will deal with any objections by the respondents to the applicant’s late disclosure of documents and witnesses at the hearing.

REQUEST TO REMOVE INDIVIDUAL RESPONDENT

30Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

31The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

32Pursuant to the factors set out in Persaud, the respondents submitted that Mr. Mycyk should be removed as an individual respondent from the Application for the following reasons. First, the applicant named Cancer Care Ontario as the corporate respondent and alleged that it is liable for the same conduct as Mr. Mycyk. Second, Cancer Care Ontario acknowledges that it is vicariously liable for the conduct of Mr. Mycyk. Third, Cancer Care Ontario is able to respond to or remedy any alleged violation of the Code, as it has the capacity to provide both financial remedies and public interest remedies. Fourth, there is no compelling reason to continue the proceeding against Mr. Mycyk, as there are no allegations in the Application that assert or suggest that Mr. Mycyk acted outside the course and scope of his employment duties. Fifth, no actual or potential prejudice would be caused by removing Mr. Mycyk, as his removal would not affect the applicant’s ability to have a full hearing on the merits of his Application.

33As mentioned above, the applicant has neither filed, nor indicated an intention to file, a Response to the respondents’ Request.

34I agree with the respondents’ uncontradicted submissions. In my view, considering all the circumstances, it is not necessary to involve Mr. Mycyk as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application.

35The respondents’ request to remove Mr. Mycyk as an individual respondent to the Application is therefore granted. The style of cause shall be amended accordingly.