Twardowski v. David B. Archer Co-operative, 2010 HRTO 590

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie Twardowski

Applicant

-and-

David B. Archer Co-operative Inc.

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: March 17, 2010

Citation: 2010 HRTO 590

Indexed as: Twardowski v. David B. Archer Co-operative

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, dated May 29, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on April 7, 2008.

2The purpose of this Interim Decision is to address the applicant’s request for an adjournment of the hearing date currently scheduled for March 24, 2010.

3On March 12, 2010, applicant’s counsel wrote to the Tribunal to advise that he had been retained by the applicant and was seeking an adjournment of the hearing on the following bases: that the applicant through no fault of his own was unable to retain counsel earlier and there was insufficient time for new counsel to prepare for the hearing; that the applicant has a disability which requires accommodation and prevents him from preparing for the hearing on his own; to facilitate the hearing by allowing counsel to properly file documents or other materials which would be of assistance to the Tribunal; and to accommodate a witness who will be out of town on the scheduled date.

4As applicant’s counsel requested an opportunity to file additional submissions in support of the adjournment request, the applicant was afforded until 1:00 p.m. on March 16, 2010 to file any such further submissions in writing, and he did so.

5The respondent was afforded until 1:00 p.m. on March 17, 2010 to file any submissions in response, which also were filed. The adjournment request is opposed by the respondent.

6The respondent relies upon the case law from this Tribunal which holds that where a hearing date has been scheduled, an applicant’s decision to retain counsel needs to be made in light of the scheduled hearing date, and the Tribunal will not permit an adjournment simply because newly retained counsel is not available for the scheduled hearing date or does not have sufficient time to prepare: see Wilson v. The Regional Municipality of York, 2009 HRTO 2020; Vallentyne v. Royal Canadian Legion, 2009 HRTO 660.

7In my view, there are two aspects of the instant case that distinguishes it from these authorities. In this case, the applicant did make an attempt to obtain a legal aid certificate to enable him to retain counsel, but his application was initially refused. The applicant filed an objection to this refusal, and ultimately was able to obtain a certificate, which resulted in his current counsel being retained. While it is not clear precisely when the applicant obtained his certificate and when current counsel was first retained, the first correspondence from applicant’s new counsel on record with the Tribunal is dated March 9, 2010 and is a letter to respondent counsel requesting an adjournment. I also note that the letter from applicant’s new counsel dated March 12, 2010 states that the applicant was only able to obtain a legal aid certificate “recently”, and counsel’s subsequent March 16, 2010 letter states that to date applicant’s counsel has been unable to access the legal aid certificate that has been issued electronically.

8The second aspect of this case which differentiates it from the authorities cited by the respondent relates to the applicant’s disabilities. The applicant suffers from adult ADHD and a panic disorder as well as physical ailments for which he is taking medication causing tiredness and grogginess, which applicant’s counsel has indicated causes considerable difficulty in dealing with the demands of preparing for litigation on his own. Applicant’s counsel submits that the requirements of proceeding with the hearing and the stress associated with litigation poses far more difficulties for someone like the applicant who is suffering from these conditions and can become overwhelming. Applicant’s counsel states that even in preparing submissions on the requested adjournment, he has been unable to obtain the assistance from the applicant that he would normally seek from a client.

9Respondent counsel wrote a letter to applicant’s counsel on March 15, 2010 requesting the specific dates on which the applicant applied for legal aid, when this was denied, and when it was subsequently granted, and further asked what efforts had been made by the applicant to comply with his pre-hearing disclosure and filing requirements as set out in the Tribunal’s November 19, 2009 letter which set the hearing date. No specific response appears to have been provided by applicant’s counsel to these requests.

10While there is no doubt that it would have been preferable for the applicant to have provided the specific dates relating to his application for legal aid as requested by the respondent and more detailed information relating to the applicant’s attempts to comply with his obligations in advance of retaining counsel, I am concerned that the lack of this specific information may be related to the applicant’s disabilities. I also am prepared to accept the statements by applicant’s counsel in his correspondence that the legal aid certificate was issued only recently and note that he appears to have been retained only at some point shortly before March 9, 2010. I also note that, while no medical documentation has been submitted to support the applicant’s disabilities and difficulties in preparing for the hearing, the specific disabilities noted by applicant’s counsel appear on the face of the complaint filed in April 2008.

11In the unique circumstances of this case, in light of the late granting of the legal aid certificate and the impact of the applicant’s disabilities on his ability to prepare for the hearing, the applicant’s request for an adjournment is granted.

12This leaves as a separate issue the applicant’s failure to meet his pre-hearing disclosure and filing requirements. Within 30 days of the date of this decision, the applicant shall fully comply with his obligation under the Rules to disclose all arguably relevant documents, to serve and file any statement of additional facts and remedy, to serve and file a list of witnesses and a statement of their anticipated evidence, and to serve and file any documents he intends to rely upon at the hearing.

13The respondent has indicated that it may object to the admissibility of any such material at the hearing in this matter. If it objects to any of this material, the respondent shall serve and file a Request for Order (Form TR-4) within 45 days of the date of this decision together with its submissions in support of its request and any case law or authorities upon which the respondent relies. Within a further 14 days, the applicant shall serve and file with the Tribunal a Response to Request for Order (Form TR-5) together with his submissions in response to the respondent’s request, including any evidence or case law upon which he relies. The Tribunal may deal with this request in writing in advance of the hearing or, if oral submissions are required, may address this request at the scheduled hearing date.

14Within 14 days of the date of this decision, the parties shall provide to the Tribunal and each other all of their availability for a hearing in this matter in June, July and August 2010.

15For all of these reasons, the applicant’s request for an adjournment is granted.