Hatton v. Ontario Lottery and Gaming Corporation, 2011 HRTO 1564

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Hatton

Applicant

-and-

Ontario Lottery and Gaming Corporation

Respondent

interiM DECISION

Adjudicator: Alison Renton

Date: August 19, 2011

Citation: 2011 HRTO 1564

Indexed as: Hatton v. Ontario Lottery and Gaming Corporation

1This Interim Decision addresses a request by the applicant made August 12, 2011 to adjourn the hearing scheduled for September 7 and 8, 2011 and for an extension of time for “all requested documents and Form 10 requests”. The respondent objects to the request for adjournment.

The Applicant’s Submissions

2The basis for the applicant’s adjournment request is as follows:

a. Due to his case becoming more complex, he has been trying to obtain legal counsel and has been unable to secure “adequate counsel” at this current date;

b. Due to not having counsel to consult on requested information, he is unsure of his rights and legal responsibilities in submitting certain information requested by the respondent;

c. The hearing date “now conflicts” with his first week of university studies; and

d. His wife is 6 months pregnant and works and “having a 13 month [sic] daycare will become a challenge on those dates”.

The Respondent’s Submissions

3The respondent opposes the applicant’s request for adjournment. It notes that the applicant previously requested an adjournment of the hearing which was originally scheduled for March 24 and 25, 2011 on very similar grounds. That adjournment request, which was granted by the Tribunal, was not opposed by the respondent.

4The respondent submits that when mutually-available dates to reschedule the hearing could not be found, the Tribunal issued a Notice of Hearing, dated March 30, 2011 (“the Notice”), scheduling the hearing for September 7 and 8, 2011. Since March 30, 2011, the respondent submits that the applicant has been aware of the September 2011 hearing dates and that he had an opportunity after the Notice was issued to make arrangements for legal representation and prepare for the hearing.

5The respondent submits that the current reasons for the adjournment are within the applicant’s control or which should have been contemplated at the time the Notice was issued. He was aware before the Notice was issued that he would require new counsel, given that this was an issue raised in his request to adjourn the March 2011 hearing dates. He had known since March 2011 about the September hearing dates and has had more than five months to make childcare arrangements. As a student, he knows that classes usually start at the beginning of September. Also, he has been aware since February 2011 of the respondent’s outstanding request for production of documents with which he has not complied.

6The respondent submits that it will be prejudiced in a further delay of this Application if the applicant’s request to adjourn is granted by the Tribunal.

The Applicant’s Reply to the Respondent’s Submissions

7In response to the respondent’s submissions, the applicant states that since May 4, 2011 he has been in a mandatory work/co-op placement through his school which “has the demands of a 6 day work week and 1500 km of travel per week”. This, he submits, has made searching for a lawyer to represent him a challenge.

8Further, the applicant submits that the respondent’s request for his medical file, which is the subject of an outstanding Request for Order During Proceedings (“RFOP”) has made the Tribunal process “very complex for him” because of the personal and private information about he and his family members in his medical file. He writes that he is very concerned that “without the opportunity to consult with a lawyer prior to making a decision to release the [medical] file would be unfair and potentially damaging to other family members one of which is my spouse who is currently employed by the Respondent”. He submits that he advised the respondent in July 2001 that he would respond to the RFOP once he had a chance to consult with a lawyer, which he requires given the sensitive information contained within the medical file.

9Finally, the applicant submits that these points should be considered in his request for an adjournment. He feels “…it would be overwhelming and unfair not to have representation at hearing [sic]”.

Further Submissions Filed by the Respondent

10The respondent responds to the applicant’s further submissions by noting it was the applicant who commenced the proceedings upon filing his Application. The respondent submits that it has complied with the Tribunal’s Rules with respect to these proceedings, whereas the applicant has not in both his requests for adjournment and in his failure to produce documentation. The respondent reserves its right to file a Request for Order During Proceedings for an Order seeking the dismissal of the Application in respect of the applicant’s conduct.

Analysis

11On March 9, 2011 the Tribunal issued an Interim Decision (2011 HRTO 490) in which it addressed the applicant’s request for adjournment for the March 2011 hearing dates. In the Interim Decision, the Tribunal noted that the basis of the applicant’s request was:

a. The Human Rights Legal Support Centre withdrew as his representative on February 2, 2011 and the applicant requires time to review all documents and prepare for the hearing;

b. The applicant is a full-time student and the hearing is scheduled in the middle of the semester; and,

c. The applicant is a new parent and must care for his newborn child.

12The Tribunal granted the adjournment, noting that the hearing was adjourned “peremptory on the applicant”, meaning that the applicant could not request an adjournment for the newly scheduled hearing date. On that basis alone, the applicant’s adjournment request for the September 2011 hearing dates could be denied.

13Further, the reasons for the adjournment request for the September 2011 hearing dates are very similar to the reasons submitted by the applicant in requesting an adjournment for the March 2011 hearing dates. I agree with the respondent that the applicant has known about the September 2011 hearing dates since the Notice dated March 31, 2011 was issued and, in that passage of time, could have made childcare arrangements and retained legal counsel. The Tribunal notes that the applicant has identified that his wife works and, since May 2011, he has been on a mandatory work/co-op placement, which requires extensive travel and “demands of a 6 day work week”. The applicant does not indicate how the child’s current daycare arrangements cannot work for the September 2011 hearing dates. Further, he does not actually say that his child has no daycare for the September 2011 hearing dates. Instead, he submits that “having a 13 month old [child], daycare will become a challenge on those dates”.

14Even if I were to accept the applicant’s submissions that since May 2011 he has been unable to retain counsel because of the requirements of his mandatory work/co-op placement, I note that since February 2011, when the HRLSC no longer represented him, the applicant knew that he required new counsel if he chose to be represented. Therefore the applicant has known for approximately 6 months that he requires counsel and has not taken steps to retain counsel.

15Further, the Tribunal does not require a party to be represented by a lawyer. Many parties who are self-represented appear before the Tribunal. The Tribunal’s policies and guides, which are found on its website, www.hrto.ca, provide information to self-represented parties about the Tribunal processes, including hearings. Not having counsel, or retaining counsel who is not available after the hearing date is set, are not reasons for having a hearing adjourned. (See Vallentyne v. Royal Canadian Legion, 2009 HRTO 534.)

16I note that the applicant has not provided any evidence that he has classes scheduled during the times the hearing is scheduled on September 7 and 8, 2011, or that missing classes on those dates would present a problem for the applicant. Further, even if he presented that evidence, the applicant has known since the Notice was issued that the hearing was scheduled for September 7 and 8, 2011 and if those dates conflicted with the beginning of his school year, he ought to have requested that the hearing dates be rescheduled within 14 days of the date of the Notice, as set out in the Notice, or certainly when the applicant first learned that hearing dates would conflict with the beginning of his school year.

17Finally, with respect to the applicant’s position that he does not know his rights about releasing medical information to the respondent, I note that he has not filed a Response to the respondent’s outstanding RFOP. Further, given the reasons set out above, not knowing his rights about disclosing documentation is not a basis upon which to adjourn a scheduled hearing, particularly since the issue has been outstanding for some time.

18Independent of the respondent’s RFOP, a party has an obligation to produce under Rule 16 of the Tribunal’s Rule of Procedure to another party, documents that are “arguably relevant” and then documents upon which that party intends to rely. I note that in the Application the applicant alleges discrimination in employment on the basis of disability and in para. 1 of the Application writes, “I am filing this application because there are medical reasons why I could not continue the supervisory role and I provided OLG with extensive medical information to support the accommodation I required”. The respondent’s outstanding RFOP will be addressed separately by the Tribunal.

19Accordingly, for these reasons, the applicant’s request for an adjournment is denied.