Bartenstein v. Ontario Disability Support Program, 2011 HRTO 1484

Human Rights Tribunal of Ontario

B E T W E E N:

Susan Bartenstein

Applicant

-and-

Ontario Disability Support Program of the Ministry of Community and Social Services

Respondent

INTERIM Decision

Adjudicator: Denyse Diaz

Date: August 8, 2011

Citation: 2011 HRTO 1484

Indexed as: Bartenstein v. Ontario Disability Support Program

1This is an Application alleging discrimination in the delivery of services due to disability, creed and age contrary to the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”). The applicant self-identifies as an Orthodox Jewish woman who receives benefits from the Ontario Disability Support Program.

2In a Case Assessment Direction, dated December 14, 2010, the Tribunal directed the scheduling of a ½ day summary hearing to determine whether the applicant’s allegations in respect of the respondent have a reasonable prospect of success and could reasonably lead to a finding of a violation of the Code.

3The hearing was originally scheduled for March 29, 2011. On March 20, 2011, the applicant wrote to the Tribunal requesting an adjournment of the hearing due to health issues. The applicant wrote to the Tribunal on March 31, 2011 advising that she would probably have surgery on her left hip in October 2011 and proposed that the hearing be rescheduled to either July 2011 or August 2011. The parties were notified by Notice of Confirmation of Hearing, dated May 16, 2011, that the Tribunal had rescheduled the hearing to August 11, 2011.

4On July 18, 2011 the applicant wrote to the Tribunal requesting that the rescheduled hearing be adjourned indefinitely because she still has “a big med. problem due to my having anti-inflamtory(sic) pills for the last 2 weeks for infection”. She further stated that “I’ll have to undergo another surgery before the Jewish New Yr. 2011. To have the “plate” removed from my left hip! Which is holding my broken bone in place!”

5The respondent having been advised of the applicant’s request does not take a position and advised that it is not prejudiced by further delays because the applicant is seeking a remedy for a past period of social assistance.

6Adjournment requests are not granted automatically and will only be allowed in extraordinary circumstances. Where a party seeks an adjournment, they must contact the Registrar as soon as the need arises and, if practicable, they should contact the other parties to seek their consent, and to discuss alternative dates. The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states the following regarding requests for adjournment:

The HRTO’s approach to scheduling and rescheduling hearings is designed to give the parties a fair opportunity to obtain suitable dates.

…

If rescheduling is required, the parties are encouraged to agree on mutually available dates that are within 12 weeks of the original hearing date(s). If the parties are able to agree on alternative dates, one party must advise the HRTO Registrar in writing within 14 days of the Notice of Confirmation of Hearing. The HRTO will make every effort to schedule the hearing for dates provided by the parties.

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

7The applicant’s adjournment request is clearly outside of the required 14-day period. Despite the absence of any supporting medical documentation, I am nonetheless satisfied at a minimum that the applicant continues to endure pain from medical issues serious enough to require medication which would impact on her ability to prepare for a hearing. This amounts to exceptional circumstances in the present case, recalling that the purpose of the hearing is solely for the applicant to make the case for her Application to proceed to a full hearing. The stakes are high and, in the circumstances, an adjournment is warranted.

8Although the respondent does not believe that there is any prejudice caused to their case by excessive delay, there is no reason, however, to adjourn the matter indefinitely. The Tribunal also aims to dispose of all applications in a fair and expeditious manner.

9The parties are directed to provide to the Tribunal available dates in March 2012. In the event that any party fails to do so by January 31, 2012, the Tribunal will assign a date for a March hearing. The date set shall be peremptory on the applicant, meaning that no further adjournment requests will be considered.