Emmanuel Agbalugo v. York University, 2011 HRTO 1316

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emmanuel Agbalugo Applicant

-and-

York University Respondent

interim Decision

Adjudicator: Dale Hewat Date: July 8, 2011 Citation: 2011 HRTO 1316 Indexed as: Agbalugo v. York University

WRITTEN SUBMISSIONS By

Emmanuel Agbalugo, Applicant ) Self-represented York University, Respondent ) Joanna Rainbow, Counsel

1This Interim Decision addresses the rescheduling of this hearing and the applicant’s request to call an additional nine witnesses. On April 19, 2011, I issued an Interim Decision (Agbalugo v. York University, 2011 HRTO 761), which confirmed the adjournment of this hearing that was scheduled on April 7 and 8, 2011, and requested the applicant to provide the Tribunal, by May 9, 2011, with medical documentation stipulating when he would be ready to participate in a hearing and what accommodations are necessary, if any, for his participation. The applicant had also asked to submit a list of additional witnesses and documents but was reminded that he had previously submitted his list of witnesses and will-say statements on May 7, 2010. In terms of other documents, the applicant was asked to provide a list of such documents including why they are relevant or arguably relevant to his Application.

2On May 9, 2011, the applicant advised the Tribunal that he would not be able to provide a doctor’s note that would address his ability to attend a hearing because he had a number of different medical appointments that were scheduled this summer. The applicant also stated that he “hoped” to be able to provide a report by June 9, 2011. In addition, the applicant provided a list of nine additional witnesses that he wishes to call when the hearing continues. On June 13, 2011, the applicant sent an email to the Tribunal asking that the hearing be scheduled “around November, 2011” and that closing submissions should be made in writing. To date, the medical information requested in the April 19, 2011 Interim Decision has not been provided by the applicant.

3On May 20, 2011, the respondent sent a letter to the Tribunal opposing the applicant’s request to add nine new witnesses. The respondent argues that the list of people proposed would be prejudicial because their testimony would unduly lengthen the hearing, would illicit unreliable testimony due to the passage of time, and would unnecessarily duplicate testimony given by the witnesses scheduled to testify. Furthermore, the respondent argues that there are no grounds to permit the applicant to submit a completely new and longer list of witnesses more than one year after the timeline for filing of witness list and will-say statements.

4On June 21, 2011, the respondent sent another letter to the Tribunal submitting that the hearing should not be scheduled until proper medical information is forthcoming, and in any event not in the month of November, due to the prior commitments involving the respondent’s main witnesses. The respondent also submits that it is premature to decide whether closing submissions should be made orally or in writing, as the applicant requests.

Additional Witnesses

5I am not prepared to allow the applicant to add the list of additional witnesses he proposed on May 9, 2011. The applicant submitted his list of witnesses and will-say statements on May 7, 2010, in accordance with the Tribunal’s Rules for filing of documents and list of witnesses and will-say statements in order to prepare for the hearing scheduled on May 20, 2010, which was adjourned due to the needs of the applicant. During the May 20, 2010 hearing I provided the applicant with an extension of time to file documents no later than June 10, 2010.

6The hearing was then scheduled to continue on September 29, 2010, but again was adjourned because of the applicant’s inability to attend due to medical reasons. Prior to the September 29, 2010 hearing, I issued another Interim Decision (Agbalugo v. York University, 2010 HRTO 1905), in which I reminded the applicant, at paragraph 8, that he would only be allowed to rely upon documents and materials that he produced and properly delivered to the respondent and the Tribunal prior to the May 20, 2010 hearing and up to and including June 10, 2010.

7The applicant was again reminded in my April 19, 2011 Interim Decision that he had already filed his list of witnesses and will-say statements in May 2010 and that list is the one to be relied upon at the hearing. This hearing has been adjourned three times in the applicant’s favour resulting in the passage of more than a year. However, simply because the hearing has been delayed, the applicant cannot now use the passage of time as an opportunity to re-think and change or expand the evidence he originally intended to rely upon. In any event, having reviewed the applicant’s list and explanation of why he wishes to call the proposed new witnesses and the respondent’s objections, I can find no basis upon which to permit their inclusion. I agree with the respondent that the list of people noted by the applicant includes people who have never been mentioned in the Application and witnesses whose testimony can be dealt with by the witnesses already scheduled to be called by both the applicant and the respondent.

Re-Scheduling of the Hearing

8The applicant has not provided the medical information requested in my Interim Decision of April 19, 2011, yet has advised, in his opinion, that he would like the hearing scheduled sometime in November 2011. Having had to adjourn this matter already on three prior occasions due to the applicant’s circumstances, it is not sufficient in my view for the applicant at this stage to merely state when he expects to be able to participate in the absence of medical documentation confirming his ability to do so.

9In order for this hearing to meaningfully occur, it is crucial that the applicant provide the information requested in the April 19, 2011 interim decision. The applicant will be given one final opportunity to provide the following medical information obtained from a medical practitioner to the Tribunal and the respondent no later than August 30, 2011:

• When will the applicant be medically fit to participate in the hearing?

• What accommodation, if any, is required to assist the applicant in his participation in the hearing? For example does the applicant need breaks at specific intervals during the hearing and if so, what should the length of the break be?

• Would it assist the applicant to schedule the hearing at certain times of day or to shorten the hearing time on each day of hearing?

• Does the applicant require an assistive device, during the hearing to help him deal with drowsiness caused by sleep apnoea?

10Upon receipt of such information the Tribunal will schedule a date for hearing, being mindful of the respondent’s request not to schedule the hearing on the dates noted by it in the month of November 2011. However, depending on the length of delay proposed for the applicant’s ability to participate in the hearing, the Tribunal will also need to consider whether the Application should be dismissed due to sufficient prejudice to the respondent. While the Tribunal is sympathetic to the applicant’s circumstances, I am concerned that the events in this matter date back over six years and the evidence grows more stale with each passing day. There may come a point where the delay in proceeding with this matter has caused sufficient prejudice to the respondent as to affect the fairness of the hearing, such that the Application may be vulnerable to dismissal: see Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] S.C.J. No. 43; Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (1995), 1995 CanLII 7431 (ON CTGD), 24 C.H.R.R. D/464 (Div. Ct.).

11Should the applicant fail to provide this medical information by August 30, 2011, the Tribunal may have no option but to dismiss this Application.