Human Rights Tribunal of Ontario
Between:
Danny Greco Applicant
-and-
Algoma Family Services TAFS and Tom Schmiedendorf Respondents
Interim Decision
Adjudicator: Eric Whist Date: September 15, 2011 Citation: 2011 HRTO 1698 Indexed as: Greco v. Algoma Family Services TAFS
1This Interim Decision addresses the applicant’s Request to adjourn the hearing scheduled for October 11 and 12, 2011 on the basis that he is incarcerated and therefore unable to attend.
BACKGROUND
2On May 30, 2011, the Tribunal received a telephone call from a friend of the applicant’s stating that the applicant would not be available on the scheduled hearing dates of October 11 and 12, 2011 and asking that the hearing be adjourned until after January 2012.
3On June 24, 2011, the Tribunal issued a Case Assessment Direction indicating that if the applicant wished the Tribunal to adjourn the scheduled hearing he would have to contact the Tribunal, state the exceptional circumstances supporting his Request and provide alternative hearing dates. The applicant was directed to provide this information by July 15, 2011.
4On August 29, 2011, the Tribunal received a letter from the applicant, dated August 22, 2011, in which the applicant stated that he was seeking an adjournment on the basis that he was incarcerated and was not scheduled to be released until December 2011. The applicant stated that he was requesting an adjournment until after January 1, 2012 and, preferably, until after February 1, 2012 in order to allow him time to seek legal counsel. The Tribunal issued a further Case Assessment Direction inviting the respondents to provide submissions in response to the applicant’s Request to adjourn.
5The respondents filed a submission on September 13, 2011 opposing the applicant’s Request. The respondents submit that the applicant’s allegations are frivolous and vexatious. The respondents submit that the applicant has not disclosed documents or witness information in preparation for the hearing of October 11 and 12, 2011 as required by the Tribunal Rules of Procedure and should not be provided with additional time to rectify this deficiency. The respondents submit that the applicant’s incarceration is as a result of his unlawful conduct and that as this is not a circumstance beyond his control any further delay would prejudice the respondents’ right to have this matter heard within a reasonable time. The respondents note that it has been over a year since the Application was filed.
DECISION
6The Tribunal’s Practice Direction provides that requests to reschedule must be made within five days of receiving the a Notice of Confirmation of Hearing and that thereafter, adjournments will be granted only in extraordinary circumstances as last minute requests for adjournments can be a significant impediment to fair and timely access to justice.
7Having considered the information before me as well as the parties’ submissions I am satisfied that the applicant’s incarceration constitutes an extraordinary circumstance and on this basis the Request for an adjournment is granted.
8The applicant is clearly unable, under any circumstances, to attend the hearing scheduled for October 11 and 12, 2011. It is beyond the applicant’s control to change his circumstance and attend the hearing if I was to deny his adjournment Request. I find this to be an exceptional circumstance regardless of whether the applicant is accountable for the actions that led to his incarceration.
9It is true that the applicant has not, to date, met the requirements to disclose documents and witness information and I accept that the respondents will be affected by a delay in proceeding. However, these concerns do not outweigh the fact that the applicant is simply unable to attend a hearing in October given his circumstances. I do not find, based on the information before me, that delaying the hearing by a few months would be significantly unfair or prejudicial to the respondents. I also do not find the respondents’ further argument about the merits of the Application, that it is frivolous and vexatious, to be relevant to my decision on this procedural matter.
10The Tribunal’s Registrar will reschedule a date for the hearing after January 1, 2012 when the applicant has been released from custody. The hearing will not be scheduled for a date after February 1, 2012 simply in order to accommodate the applicant’s desire to seek legal counsel. The applicant filed his Application on March 31, 2010 and the Notice of Confirmation of Hearing (the “Notice”) for the hearing scheduled for October 11 and 12, 2011 was sent to the parties on May 13, 2011. In my view, the applicant has already had plenty of time to seek legal counsel.
11The applicant will be expected to meet the requirements of Rules 16 and 17 of the Tribunal’s Rules of Procedure. Rules 16 and 17 require that parties send each other, as well as the Tribunal, copies of the documents they wish to rely on at a hearing, a list of their proposed witnesses, and statements briefly describing the witnesses’ intended testimony no later than 45 days prior to the first day of the scheduled hearing. The applicant will be expected to meet these requirements 45 days prior to the rescheduled hearing dates.
12I note that the respondents have already provided their documents and their list of proposed witnesses and witness information to the Tribunal under cover of a letter dated August 25, 2011. The Tribunal has directed the respondents to provide these materials to the applicant at the address he provided in his August 22, 2011 letter.
13The applicant’s Request for an adjournment of the October 11 and 12, 2011 hearing is granted. Hearing dates will be rescheduled by the Registrar.
Dated at Toronto, this 15th day of September, 2011.
”signed by”_____________
Eric Whist
Vice-chair