Gonzalez v. Toronto Catholic District School Board, 2010 HRTO 523

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jose Gonzalez

Applicant

-and-

Toronto Catholic District School Board and Hanna Cabaj

Respondents

-and-

Canadian Union of Public Employees

Intervenor

INTERIM DECISION

Adjudicator: Mark Hart

Date: March 10, 2010

Citation: 2010 HRTO 523

Indexed as: Gonzalez v. Toronto Catholic District School Board

1A half-day hearing in this matter is scheduled for March 19, 2010 to hear evidence and argument regarding the respondents’ preliminary request to dismiss the Application. The hearing was scheduled by Notice from the Tribunal dated November 16, 2009 upon the consent of the applicant. This Interim Decision addresses the applicant’s request for an adjournment.

2By letter dated March 8, 2010, counsel for the applicant wrote to request an adjournment of the March 19, 2010 hearing date due to the applicant’s medical condition. The letter states that the applicant suffers from chronic back and neck pain, which has recently intensified, making it increasingly difficult for him to concentrate and coherently answer questions. Counsel expresses concern about the applicant’s fitness to participate in the hearing, particularly given that he likely would be the only witness called in support of his position.

3Applicant’s counsel references a letter from the applicant’s treating physician dated March 5, 2010. This letter states that the doctor has been treating the applicant since 1998 and that he suffers from chronic pain secondary to degenerative changes in his neck. While the doctor states that the medications prescribed to the applicant may affect his ability to concentrate and answer questions, this is not connected to any specific medication that the doctor has prescribed nor to any recent or limited time period when any such medication was or is being prescribed. Rather, the doctor merely states that she has prescribed medications to address the applicant’s medical issues “over the years”. The doctor also states that she is not entirely sure whether the applicant has been compliant with his medications, given his financial circumstances.

4The doctor’s letter also states that over the years, she has observed that the applicant has experienced mental health issues, for which he received treatment at Toronto Western Hospital in 2006 and for which treatment may be continuing.

5The doctor expresses that for the reasons stated in her letter, she feels that the applicant may have difficulty testifying at the hearing and will likely have difficulty under cross-examination. She adds that, over the years, she herself has had difficulty following the applicant’s discussions and complaints.

6Applicant’s counsel has advised the Tribunal that the intervenor has consented to the adjournment request, and counsel for the respondents do not object.

7While 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.

8The 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.

9While I have sympathy with the applicant’s medical condition and accept that his condition may present difficulties relating to his participation in the hearing, the medical evidence submitted in support of the adjournment request indicates that this condition and these difficulties appear to have been present over the past number of years. There is no medical evidence to support that there has been some recent dramatic change in the applicant’s medication or condition, nor is there any indication that there is any reasonable prospect that this condition or the difficulties associated with it will improve within a reasonable period of time.

10Where this Tribunal is left is with the unfortunate situation that, whether the adjournment is granted or not, the Tribunal and the parties are likely to be confronted with the same difficulties arising out of the applicant’s medical condition. In these circumstances, it is my view that the preferable course of action is to proceed with the hearing on March 19, 2010.

11The Tribunal will be sensitive to the applicant’s needs if he requires accommodation during the course of the hearing on March 19, 2010, and may be prepared to re-assess how to proceed should it become apparent at the hearing that the applicant is not able to participate effectively.

12The request for adjournment is denied.