Dennison v. Sarafian, 2011 HRTO 2051

Human Rights Tribunal of Ontario

B E T W E E N:

Barry Dennison Applicant

-and-

Edward Sarafian and Garrett Sarafian Respondents

Interim Decision

Adjudicator: David Muir Date: November 9, 2011 Citation: 2011 HRTO 2051 Indexed as: Dennison v. Sarafian

Reasons for Decision

1This is an Application filed pursuant to section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2This interim decision deals with an adjournment request made by the respondent Edward Sarafian on November 9, 2011. The hearing is scheduled to begin on November 14, 2011. This is the third request by this respondent for an adjournment. The two prior requests were granted on medical grounds. The applicant does not consent to this request. The other respondent Garrett Sarafian has not taken a position on the adjournment request.

3The respondent Edward Sarafian states that he requires an adjournment of several months for health reasons. The last adjournment request was necessitated by the respondent's kidney transplant on April 9, 2011. At that time his physician indicated that he could be able to participate in the hearing after six months of recovery.

4In support of the most recent adjournment request, the respondent provided a letter from a treating physician. The text of that letter is as follows:

Since my letter to you written April 29, 2011 Mr. Sarafian has indicated to me that he has not yet seen a psychiatrist, He tells me that his first appointment has now been booked for December 6, 2011. Mr. Sarafian would like to have a few visits with the before he starts to deal with the Tribunal hearing.

From a kidney point of view Mr. Sarafian is doing well but tells me that emotionally and mentally he feels he needs a few visits with the psychiatrist to feel In a better position to deal with this hearing.

If you require any further information please do not hesitate to contact my office.

5The respondent states that the immune-suppressing drugs taken after his surgery have affected his hormones causing sudden mood swings, emotional and angry outbursts, making him irritable, testy and prone to snap at people. He also states that these medications have exacerbated the depression that he claims to have suffered from for some time. He also claims diminished memory, concentration and cognitive function.

6The respondent states that he has been referred to a psychiatrist but that the first appointment he could get was December 6, 2011. The respondent states that hopefully after a few sessions with him, the psychiatrist will be able to provide an estimate of when the respondent will be able to participate in the hearing.

7I am not satisfied that it would be fair, just or expeditious to adjourn the hearing of this Application yet again, based on the limited material provided. There is no medical information provided that would support the conclusion that the applicant is unable to participate in the hearing for medical reasons or that it would be unsafe for him to do so.

8This is the third adjournment request. The first was sought on inexplicably short notice and while it was granted, the applicant not entirely without reason was concerned that it was intended to delay the hearing. This request is also inexplicably made at the last minute. The request to adjourn consequent to recent kidney transplant surgery was entirely reasonable and its timing was not in the control of the respondent. However, the respondent has presumably known for some time that he was wanting to consult a psychiatrist and if he has an appointment on December 6, had likely sought the consultation some time ago. There is no explanation offered for the delay in raising this issue with the Tribunal and the other parties. All of these circumstances suggest that the respondent Edward Sarafian may not be acting with the due diligence required and expected in this legal proceeding. At some point delays in the proceeding also become a question of fairness for the applicant, who has waited for his hearing for some considerable time.

9Many of the issues the respondent raises can be addressed by proper management of the hearing. The respondent says for example that if the applicant "pushes his buttons" he may snap. I recognize that the discourse by all parties, not least the applicant, has been quite inappropriate at times. The parties have been admonished in this regard already. At the hearing they will be expected to treat each other and the Tribunal with the utmost of respect. If any party is unable to conduct themselves in an appropriate manner there may be consequences for them. Similarly, if the respondent requires breaks to compose himself or simply to rest, these requests can and will be accommodated.

10The hearing should continue as scheduled. The respondent Edward Sarafian may raise this issue again at the hearing if he wishes, but in order to justify a further adjournment at this stage he will be required to produce cogent medical evidence that explains why he is unable to participate in the proceeding for medical reasons.

11I am not seized of this case.