Salvador Vizcaya v. University of Toronto, 2010 HRTO 7

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Salvador Vizcaya

Applicant

-and-

University of Toronto (University College), Robin Morgan,

Sylvia Bashevkin and Ken Aucoin

Respondents

DECISION

Adjudicator: David A. Wright

Date: January 4, 2010

Citation: 2010 HRTO 7

Indexed as: Vizcaya v. University of Toronto

APPEARANCES

Salvator Vizcaya, Applicant ) No one appearing

University of Toronto (University College), ) S. John Page and

Robin Morgan, Sylvia Bashevkin ) Sari Springer, Counsel

and Ken Aucoin, Respondents )

1The background to this Decision is set out in the Tribunal’s Interim Decision of December 8, 2009 (2009 HRTO 2128), which reads as follows:

This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19. It alleges discrimination in goods, services and facilities on the basis of ethnic origin and disability and reprisals. A previous Interim Decision on this matter is reported at 2009 HRTO 1116.

The hearing was scheduled, by letter dated August 4, 2009, for December 7, 2009.

Following an extension granted by the Registrar, the applicant’s witness statements and the documents the applicant was relying upon were due on October 23, 2009. In a Case Assessment Direction dated November 10, 2009, the applicant was directed to file these materials immediately. The applicant did not do so.

On Friday, December 4, 2009, the applicant telephoned the Tribunal to advise that he would not be attending the hearing for medical reasons. The Tribunal wrote to the parties by e-mail at 1:09 p.m., as follows:

The Tribunal has received a telephone message from Mr. Vizcaya stating that he will not be attending the hearing on Monday. If Mr. Vizcaya asks that the hearing be rescheduled, he must make a request in writing, with a copy to counsel for the respondents. The request must fully explain the reasons for the request. The Tribunal’s policy is to only grant adjournments in exceptional circumstances such as sudden illness of a party or witness.

If the hearing is not adjourned, it will proceed on Monday and if Mr. Vizcaya does not attend, the application may be dismissed as abandoned, which is the Tribunal’s standard practice in such circumstances.

At 4:43 p.m. on December 4, 2009, the Tribunal received a handwritten fax from Mr. Vizcaya which reads as follows:

I, Salvador Vizcaya, am not able to attend Monday’s hearing due to medical illness [details omitted]. Doctors and police have taken note.

The respondents have been notified by email – my email reply to their impossible to open email attachment (something about Tab 6, whatever that is).

At 4:45 p.m. on December 4, 2009, the applicant wrote to counsel for the respondents in reply to an earlier e-mail with a corrected document for the document brief of the respondents, as follows:

reply:

what’s this? save to what? what tabs?

hrto registrar notified of medical illness, unable to attend December 7 hearing.

Sal Vizcaya

As there was no time to determine the issue of adjournment on December 4, 2009, the hearing proceeded as scheduled on December 7, 2009 and the respondents asked that the Application be dismissed as abandoned. Among other submissions, counsel noted the last-minute notification that the applicant had not provided any documentation from a medical practitioner to substantiate his assertion that he was not able to attend and that he had time to obtain such documentation. He noted the extremely strong language and tone in the applicant’s materials and stated that the proceeding has caused anguish to the personal respondents. He stated that a delay would continue that anguish. He noted the multiplicity of legal proceedings related to these matters. He stated that the proceeding has caused considerable resources to be expended by the University of Toronto, a public institution, including the costs for one of its witnesses to fly to Toronto from the United States on December 7, 2009.

I denied the respondents’ request, as in my view the applicant should have an opportunity to provide full medical documentation and to explain why he was unable to provide earlier notification of his inability to attend, both of which are important to a decision on whether the Application should be dismissed at this stage. Accordingly, if the applicant wishes to pursue this Application he shall, by December 22, 2009, write to the Tribunal, with a copy to the respondents and provide a letter from a registered medical practitioner that advises:

(a) Was the applicant medically able to attend a Human Rights Tribunal of Ontario hearing on December 7, 2009?

(b) If the applicant was unable to attend the hearing, when did such inability arise and, specifically, did it arise prior to December 4, 2009?

(c) When is it expected that the applicant will be medically able to attend a hearing?

If the applicant does not comply with this direction, the Application shall be dismissed as abandoned.

If the applicant provides a letter in accordance with the above direction, the respondents shall, by January 5, 2010, advise the Tribunal whether they still ask that the Application be dismissed. If they ask that the Application be dismissed, they shall provide written submissions in support of the request for dismissal. The applicant may respond to any such submissions by January 19, 2010.

2On December 16, 2009, the applicant provided a handwritten note from a physician that reads as follows:

My patient states that he was unable to attend the hearing on Dec 7/09 due to exacerbation of mental health problems. He is asking for a delay of six months.

3The letter was not copied to the respondents. Accordingly, by letter dated December 17, 2009, the Registrar wrote to the applicant as follows:

The Tribunal is in receipt of your medical letter of December 16, 2009. The letter must be delivered to the respondents as directed in paragraph 8 of the Interim Decision issued on December 8, 2009.

Please deliver your medical letter to the respondents by December 22, 2009, as outlined in the Interim Decision and provide the Tribunal with a Form 23, statement of delivery.

4On January 4, 2010, the respondents wrote to the Tribunal, with a copy to the applicant, advising that they had received a copy of the letter on December 29, 2009, past the deadline of December 22, 2009. They seek an extension to provide their submissions until January 12, 2010, noting that counsel for the respondents was away from the office from December 21, 2009 until January 4, 2010. The respondents note that they are able to provide submissions at this time on whether the note complies with the Interim Decision, but seek an extension to also verify the authenticity of the document.

Decision

5In my view, there is no need to provide an extension to the respondents, as the Tribunal does not require any submissions from them. The previous Interim Decision stated that if the applicant did not provide a note in accordance with the Tribunal’s direction, the Application would be dismissed. As the letter provided does not comply with the Tribunal’s direction, there is no need for the respondents to make any submissions.

6The medical note provided, which was not copied to counsel for the respondents by the date required, does not comply with the Tribunal’s direction nor substantiate the applicant’s failure to participate in the hearing or the fulfill the requirements leading up to it. The physician’s note merely reports the applicant’s statements. It does not confirm any medical reason for the applicant’s non-attendance at the hearing or indicate the physician’s opinion as to when the applicant would be able to attend.

7Moreover, the letter does not address one of the central issues set out in the previous Interim Decision. It does not respond at all to the Tribunal’s question about when the inability to attend the hearing arose. This is of particular concern because of the impact on the respondents of the last-minute request for adjournment. In the circumstances, I cannot conclude that the applicant has provided medical documentation that confirms his inability to attend and to give earlier notice.

8In Edward v. Moda at Home, 2009 HRTO 568, at para. 1, the Tribunal outlined the consequences of a party’s failure to attend a hearing:

Where an applicant is not present, this will generally lead to the dismissal of an Application. Where a respondent is not present, the Tribunal will generally deem the respondent to have accepted the allegations in the Application, hear submissions and evidence as appropriate from the applicant and make a final decision on the Application.

9Given the applicant’s failure to attend the hearing, and to provide documentation as directed in the previous Interim Decision, I conclude that the applicant has not shown exceptional circumstances that justify his failure to attend or his last-minute notification that he would not attend.

10The Application is dismissed.