HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Roshika Williams
Applicant
-and-
Children’s Aid Society of Toronto,
Carol Manak and Pam Dawe
Respondents
AND B E T W E E N:
Roshika Williams
Applicant
-and-
Alliance Youth Services Inc.,
Steve Catney and Ed Barron
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Williams v. Children’s Aid Society of Toronto
1These are two Applications made under s. 53(5) of the Ontario Human Rights Code, both dated February 19, 2009. The underlying complaints were both filed with the Ontario Human Rights Commission (the “Commission”) on March 2, 2007.
2The hearing in this matter commenced on November 23, 2009 and is scheduled to continue on March 25 and 26, 2010.
3The purpose of this Interim Decision is to provide the parties in writing with the Tribunal’s oral ruling regarding the scope of the Applications as made at the November 23, 2009 hearing and to address the applicant’s request for an adjournment of the March 2010 hearing dates.
The Tribunal’s Decision regarding the proper scope of the Applications
4At the hearing on November 23, 2009, after hearing submissions from the parties regarding the proper scope of the allegations raised in these two Applications, I made the following oral ruling:
With the Applications as served and filed and in addition to attaching the complaints as filed with the Commission, the applicant has included an e-mail dated September 7, 2008 with the heading “amended complaint” and a further document dated February 19, 2009 headed “amended complaint continued” that include additional allegations beyond what is set out in the complaints as filed.
The applicant states that she and her husband attended at the Commission’s offices and signed a formal amended complaint, but despite obtaining disclosure of the Commission file, this document was not obtained by the applicant. It also appears that no such amended complaint was ever served on the respondents, nor were they given notice by the Commission of these additional allegations or any intention by the Commission to include them in an amended complaint.
Rule 12.3 of the Tribunal’s Transitional Rules states that an Application under Section 53(5) must be based on the subject matter of the complaint or amended complaint filed at the Commission. While Rule 12.4 does allow an applicant to request an amendment of the complaint, such amendments must have regard to Rule 12.3. In my view, this means that any such requests for amendment must nonetheless be based on the subject-matter of the complaint or amended complaint as filed with the Commission.
In this case, while I do not doubt the applicant’s statement that she did sign an amended complaint at the Commission’s offices, I find that no amended complaint was formally filed at the Commission, given that no such document has been produced before me and given that no amended complaint was served by the Commission on the respondents.
I also find that the requested amendments do extend beyond the subject-matter of the complaint as filed with the Commission, as they raise new allegations of racial discrimination that relate to entirely different factual allegations and that would potentially require the evidence of witnesses who would not otherwise be required to respond to the allegations as set out in the complaint.
For these reasons, the request to amend the complaint to include the additional allegations is denied.
Request for adjournment
5On March 18, 2010, the applicant filed a Request for Order seeking an adjournment of the hearing dates scheduled for March 25 and 26, 2010 pending completion of an investigation by the Ombudsman or production of certain documents from the Commission’s files.
6As is her right under the current Code, the applicant sought disclosure of her files at the Commission. The applicant’s material indicates that the request for disclosure was made on April 6, 2009 and the files were received on May 19, 2009. Upon receipt of the Commission files, the applicant states that the following documents were missing: the witness statement of Pamela Dawe as taken at the fact-finding meeting held by the Commission on May 12, 2008; the amended complaint that was signed in the Commission’s offices in September 2008; any report prepared by the Commission investigator; and notes relating to the Commission’s handling of the file following the departure of the Commission investigator.
7The applicant states that following the commencement of the hearing in this matter, she filed a complaint with the Ombudsman’s Office seeking its assistance in obtaining disclosure of these documents from the Commission. Apparently, this complaint is still outstanding.
8The Children’s Aid Society respondents oppose the applicant’s adjournment request, on the basis that the applicant failed to pursue any complaint to the Ombudsman’s Office in a timely manner and that the reasons advanced by the applicant for the adjournment do not meet the kind of ”extraordinary circumstances” required by this Tribunal to justify an adjournment. The remaining respondents take no position on the applicant’s request.
9The Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments 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.
10While I can appreciate the applicant’s frustration at the incompleteness of the Commission’s file, her inability to locate the missing documents to date does not constitute the kind of extraordinary circumstances required to justify the adjournment of the hearing in this matter. I say this for several reasons.
11First, some of the missing documents simply are not relevant to the hearing in this matter. While it may be that the applicant was told that her complaints would be referred by the Commission to the Tribunal under the old human rights scheme and while it is clear that this did not happen for whatever reason, the Commission’s handling of her complaints simply is not relevant to the hearing in this matter, which is focused on receiving the parties’ evidence and submissions regarding the allegations raised by the applicant in her complaints. Similarly, whether or not the investigating officer prepared a report of his investigation in this matter, this document too is not relevant to this proceeding, as under the current system it is my job as the adjudicator to hear the evidence and to make a determination as to whether or not the Code has been violated.
12Second, while the applicant may indeed have signed an amended complaint at the Commission’s offices in September 2008, the fact remains that no such complaint was ever served by the Commission on the respondents and they had no prior notice of the additional allegations set out in that complaint until the commencement of these two Applications.
13Third, the applicant has been aware since at least May 19, 2009 that these documents were missing from the Commission files, yet does not appear to have taken timely steps to address this matter. Nor does filing a complaint with the Ombudsman’s Office provide a proper basis upon which to grant an adjournment in this case. If the applicant wants an order requiring the Commission to disclose documents that are relevant to this proceeding, such an order can be made by this Tribunal following a request from the applicant on notice to the Commission. No such request has been made by the applicant. While I appreciate that the applicant is unrepresented in this proceeding, she has not taken any steps prior to the filing of her adjournment request less than a week prior to the scheduled hearing dates to raise this issue with the Tribunal.
14For all of these reasons, the applicant’s request for an adjournment is denied.
Dated at Toronto, this 23^rd^ day of March, 2010.
“Signed by”
Mark Hart
Vice-chair