E.M. v. Centre for Early Learning, 2011 HRTO 325

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.M.

Applicant

-and-

Centre for Early Learning Inc., c.o.b. as Denton Place Centre for Early Learning, Julie Cuss and Patricia London

Respondents

A N D B E T W E E N:

L.M.

Applicant

-and-

Centre for Early Learning Inc., c.o.b. as Denton Place Centre for Early Learning, Julie Cuss and Patricia London

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: February 15, 2011

Citation: 2011 HRTO 325

Indexed as: E.M. v. Centre for Early Learning

1A hearing in these matters is scheduled for March 3, 2011. This Interim Decision addresses the applicant’s Request for an adjournment.

2This is an Application filed pursuant to s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated June 24, 2009. The applicant L.M. is a minor child who was in a daycare operated by the respondents at the material time. The applicant E.M. is L.M.’s mother. The Application alleges that L.M. and E.M. experienced discrimination because of ancestry and disability in the provision of services contrary to sections 1 and 9 of the Code, as a result of how they were treated during the period that L.M. was in the daycare and in relation to the respondents’ decision to withdraw daycare services for L.M. on March 16, 2006.

3The events in this matter date back for some five and more years, to 2005 and 2006. The complaint that underlies the transitional Application in this matter was filed with the Ontario Human Rights Commission on September 15, 2006.

4This proceeding already has been adjourned twice. By letter dated December 7, 2009, the Tribunal proposed dates for the hearing and afforded the parties a period of 10 days in which to respond with their availability. The respondents provided their availability, while no response was received from the applicants. Accordingly, by letter dated December 17, 2009, the Tribunal established April 20, 2010 as the date for the hearing and also set out a schedule for the parties to fulfil their pre-hearing obligations.

5On February 8, 2010, the applicant E.M. faxed a letter to the Tribunal advising that she was no longer available for the hearing on April 20, 2010, as she was required to attend a work conference in Newfoundland on that date, and requested that the hearing be re-scheduled. The respondents consented to the applicants’ request.

6The Tribunal granted the applicants’ request and once again canvassed the parties’ availability for the hearing. By letter dated March 26, 2010, the Tribunal confirmed the re-scheduled hearing date as July 7, 2010.

7On July 5, 2010, the Tribunal received a letter from respondents’ counsel stating that he had just broken his collarbone and so would not be able to attend the hearing on July 7, 2010. Accordingly, the respondents requested an adjournment. This adjournment request was opposed by the applicants, who noted the length of time that the case had been ongoing and who stated that E.M. and her son needed closure sooner rather than later.

8By Interim Decision dated July 6, 2010, 2010 HRTO 1468, I granted the respondents’ request for an adjournment on the basis that the type of injury sustained by respondents’ counsel represents the kind of extraordinary circumstance that justifies an adjournment. Given that the hearing was scheduled for July 7, 2010, I stated in the Interim Decision that it was unrealistic to expect that new counsel could get up to speed on the case that quickly, as had been suggested by the applicants. I also took into account the fact that the applicants previously had requested an adjournment, to which the respondents had provided their consent.

9As a result, the Tribunal for the third time canvassed the parties for their availability for the hearing. By letter dated August 27, 2010, the Tribunal provided notice to the parties that the hearing date was now confirmed for March 3, 2011, in accordance with the stated availability of all parties.

10On February 11, 2011, the applicants requested yet another hearing date on the basis that one of their witnesses, Patricia Pettigrew, and their “moral support” will be away on business outside the province on the scheduled hearing date. The applicants state that this came about unexpectedly and cannot be changed. The applicant E.M. also offered to provide a letter from her therapist if need be stating that it is in her best interest to have her moral support person with her during the Tribunal hearing. I am aware from the materials that the person in question is E.M.’s mother and L.M.’s grandmother and was involved to some degree with the events of March 16, 2006, when child care services for L.M. were withdrawn by the respondents.

11The respondents have provided their consent to the applicants’ adjournment Request.

12The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states:

The HRTO discourages requests for adjournments outside the ten-day period to request rescheduling of a hearing…. 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, copied to the other parties.

13As the Practice Direction makes clear, the consent of the parties alone is not a sufficient basis to grant an adjournment in the absence of exceptional circumstances. There are broader institutional interests at stake, including this Tribunal’s commitment to fair and timely access to justice. In my view, these broader institutional interests significantly come into play in the circumstances of this case, where the events at issue date back some five years and more and where two adjournments of scheduled hearing dates already have been granted.

14In my view, the reasons underlying the applicants’ request for an adjournment are not sufficient to qualify as exceptional circumstances within the meaning of the Practice Direction and the Tribunal’s caselaw. With regard to Ms. Pettigrew’s status as a witness, I am aware from the materials filed to date that Ms. Pettigrew had some degree of involvement in the events at issue on March 16, 2006, the day that the respondents notified the applicants that the daycare services for L.M. were withdrawn. The applicants fairly should be afforded an opportunity to present Ms. Pettigrew’s evidence in support of their allegations.

15However, that alone is not a sufficient reason to cancel the March 3, 2011 hearing date altogether. I will need to hear the applicant E.M.’s evidence regarding the events at issue, which is much more substantial than Ms. Pettigrew’s involvement, and E.M. will need to be cross-examined by respondents’ counsel. It is not clear to me whether the applicants intend to call any other witnesses in support of their allegations, as they have not yet filed any list of witnesses or witness statements, but if there are other witnesses to be called on the applicants’ behalf besides Ms. Pettigrew, then I will need to hear their evidence and they also will need to be cross-examined. In addition, if there is available time on March 3, 2011, I could proceed to hear the evidence of the respondents’ two witnesses and they could be cross-examined, with the opportunity to provide any further evidence as may arise once I am able to hear Ms. Pettigrew’s evidence. Suitable arrangements could be made to hear Ms. Pettigrew’s evidence at a later time, whether in person or by teleconference.

16The applicant E.M. also states that she needs Ms. Pettigrew there as her “moral support”. I appreciate that legal proceedings are difficult and stressful matters, and that particularly unrepresented individuals may benefit from having support during the hearing process. However, Ms. Pettigrew is not the applicants’ representative and her role as a support person needs to be weighed against the broader institutional interest of ensuring timely access to justice for all parties. Given how long ago the events at issue in this proceeding occurred and given that this matter already has been adjourned twice, it is my view that in these circumstances the absence of the applicant’s moral support person also is not the kind of exceptional circumstance that justifies an adjournment.

17Accordingly, the applicants’ request for an adjournment is denied and the hearing will proceed as scheduled on March 3, 2011, commencing at 9:30 a.m.

18As I previously have noted, the applicants have not yet filed a list of their proposed witnesses, a description of what each witness will say, and a copy of all documents they intend to rely upon at the hearing. In accordance with the Tribunal’s Rules for Transitional Applications, this material should have been filed by February 11, 2011, which is 20 days prior to the scheduled hearing date. In the circumstances, I am affording the applicants a further opportunity to file this material by no later than February 24, 2011. If the applicant E.M. intends to provide evidence only in accordance with what is stated in her complaint and in her statement of additional facts, then she need not file a description of her evidence. To the extent that E.M. intends to address other matters, particularly in response to the Response filed by the respondents, then she should provide a description of what that evidence will be.

19It is not clear to me whether the applicant L.M. intends to testify on his own behalf. If so, this needs to be indicated and a description provided as to what he will say in his evidence. In addition, the applicants need to provide a list of all other witnesses they intend to call in support of their allegations and a description of what each witness will say. This extends to and includes Ms. Pettigrew, even though I understand and appreciate that she will not be available to testify on March 3, 2011. Finally, if there are any documents that the applicants intend to rely upon at the hearing, all such documents need to be filed with the Tribunal. The applicants do not need to file any documents which already have been filed as part of the respondents’ Book of Documents.

20As previously stated, by February 24, 2011, the applicants shall deliver to the respondents and file with the Tribunal the following material:

a. A description of any matters E.M. intends to address in her evidence apart from what is stated in the complaint and/or in the statement of additional facts;

b. An indication as to whether L.M. will testify and if so, a description of his evidence;

c. A list of all other witnesses the applicants propose to call and a description of what each witness will say, including for Ms. Pettigrew; and

d. A copy of any documents not included in the respondents’ Book of Documents upon which the applicants propose to rely at the hearing.