HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
James Rastel
Applicant
-and-
Dryden Police Services Board and Dale Engstrom
Respondents
Interim decision
Adjudicator: Geneviève Debané
Indexed as: Rastel v. Dryden Police Services Board
wRITTEN SUBMISSIONS
James Rastel, Applicant ) Self-represented
Dryden Police Services Board ) Robert C. Edwards,
and Dale Engstrom, Respondents ) Counsel
1James Rastel has filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of age. The hearing of the Application is scheduled for November 16-17, 2011, in Thunder Bay.
2This Interim Decision is with respect to two separate Form 10 Requests for Order during a Proceeding (“RFOP”) filed on October 17, 2011 by the applicant: a request to adjourn the scheduled hearing and a request for production of documents. The respondents filed a response opposing both of the applicant’s requests.
Request to Adjourn
3In the request to adjourn the hearing filed by the applicant on October 24, 2011 he simply states that the reason he is seeking an adjournment is “to determine if I can obtain representation to assist me during the tribunal(sic) hearing.” The respondents object to adjourning the hearing taking the position that this hearing has been scheduled since April 26, 2011 and that the applicant had ample time to retain legal representation. Further, the respondents advise that arrangements have been made by them so that some of their witnesses can travel to the scheduled hearing.
4The Tribunal’s Practice Direction on requests to adjourn or reschedule reads as follows:
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.
Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.
The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax.
5In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:
The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.
6The applicant has not demonstrated any exceptional reasons for the requested adjournment. This Application is with respect to events that occurred in March 2009 and this application was filed in October of that year. The applicant has represented himself throughout this proceeding and has filed a number of requests with the Tribunal. I find that the applicant had ample time to obtain legal representation had he exercised some diligence. As there are no exceptional circumstances that warrant the adjournment, the Tribunal denies the adjournment request.
Production request
7The applicant seeks an Order from the Tribunal directing the respondents to produce “the written test and written test scoring documents by the other candidates” for the purposes of comparison. The respondents object on the basis that the issue before the Tribunal is whether the applicant was denied employment on the basis of his age and that the written tests of other candidates is not relevant to that issue and that reviewing these tests would unduly lengthen the hearing. The respondents also assert that the tests were marked by an independent marker who was not aware of the applicant’s age.
8I have reviewed the submission of the parties and the hearing documents filed with the Tribunal. I note that at Tab 6 of the respondents’ production there is a copy of the applicant’s materials with respect to the written test. The first page of this Tab contains the applicant’s marking scheme, which identifies him not only by name but by his date of birth. Therefore if this document was given to the test marker prior to grading the written test, the applicant’s age may have been disclosed. Though this is not determinative of whether there has in fact been discrimination with respect to assessing the applicant’s job application I cannot say that other candidate’s written tests are not arguably relevant to the issues in the pleadings.
9The Tribunal has the power to order a party to produce any document that is arguably relevant to the proceeding. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8. Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Lampi at para. 9. However, the applicant is entitled to these documents in order to prepare his case for the hearing.
Order
10The Tribunal Orders;
a. The applicant’s adjournment request is denied; and
b. that the corporate respondent shall deliver to the respondent by November 8, 2011 copies of all documents with respect to other candidate’s written tests, including the marking scheme and the essays written by the candidates. The respondent may redact any confidential information that would identify the candidate’s personal information including their names but must not redact their date of birth. The corporate respondent must bring the unredacted documents to the scheduled hearing.
11I am not seized.
Dated at Toronto, this 1st day of November, 2011.
“signed by”
Geneviève Debané
Vice-chair