Mathew Blakely v. Queen’s University, 2011 HRTO 706

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mathew Blakely

Applicant

-and-

Queen’s University

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: April 13, 2011

Citation: 2011 HRTO 706

Indexed as: Blakely v. Queen’s University

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code), dated June 26, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on March 21, 2007.

2By Interim Decision 2011 HRTO 114, dated January 14, 2011, the scope of this Application was restricted to the applicant’s allegation of discrimination and reprisal relating to the March 2007 decision not to hire him as a Sessional Adjunct Instructor.

3The hearing in this matter is scheduled for June 1, 2011. This Interim Decision addresses the applicant’s Request for an adjournment and for an extension to file his pre-hearing materials.

4By letter dated October 6, 2010, the hearing in this matter originally was scheduled for April 27, 2011. At the applicant’s request, this hearing date was re-scheduled to June 1, 2011, on the basis that his primary witness was scheduled to be out of the country on April 27, 2011. The applicant proposed a number of alternate dates, including “any date within June 2011”. Notice of the re-scheduled hearing date was given by the Tribunal to the parties by letter dated October 20, 2011.

5On April 5, 2011, the applicant wrote to the Tribunal to Request an adjournment of the June 1, 2011 hearing. The first basis for his Request was due to serious medical issues, which the applicant states are related to the fact that he currently is incapable of seeking or holding employment at this time. In support of this basis for his Request, the applicant provided a letter from his psychologist, which states that “because of [the applicant’s] current status, it would be [in] his best interests if he could defer the upcoming Human Rights Tribunal hearing”.

6The second basis for the applicant’s Request for an adjournment is that a key witness is out of the country on work-related responsibilities and will not be back until the end of June 2011. The applicant states that this witness is working in a remote area without electricity and so would not have access to telephone communication.

7The respondent objects to the adjournment Request on the basis that this matter has been outstanding for some time and that the allegations pertain to events that took place over four years ago.

8The 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.

9As the Practice Direction makes clear, not only are extraordinary or exceptional circumstances required to justify an adjournment of a scheduled hearing date, but it also is the responsibility of the party seeking the adjournment to provide sufficient support for the Request.

10With regard to the medical basis for the applicant’s Request, the applicant’s psychologist states only that it would be in the applicant’s best interests to defer the hearing. He does not say that the applicant is medically incapable of proceeding with the hearing, or provide any basis to support such a conclusion. While it may indeed be in the applicant’s best interests if the hearing were deferred, I also need to consider the interests of the respondent, against whom this allegation has been outstanding for over four years now, and of the Tribunal, which scheduled this hearing date over five months ago. In my view, the medical evidence provided by the applicant is not sufficient to establish the kind of extraordinary or exceptional circumstances required to justify an adjournment in this case.

11While I note that the doctor’s letter says that he would be able to provide further relevant medical information with the applicant’s consent, it is not the Tribunal’s responsibility to obtain evidence to support the applicant’s adjournment Request. This is the applicant’s responsibility.

12With regard to the second basis for the applicant’s Request, I note that the hearing already was re-scheduled to accommodate the needs of his witness, and was scheduled for a date when the applicant informed the Tribunal and the respondent that this witness would be available. While I appreciate that circumstances may change, in my view, this does not provide a sufficient basis to justify an adjournment of the hearing date.

13However, I also do not want to deprive the applicant of the ability to elicit evidence from this individual, if indeed her evidence is relevant to the matter at issue and is admissible. Accordingly, the applicant is directed to provide a detailed and complete written statement of all of the evidence he proposes to elicit from this witness, relevant to the March 2007 competition for the Sessional Adjunct Instructor position. This statement is to be provided to the respondent and filed with the Tribunal by no later than May 12, 2011. This written statement shall include a statement that it was reviewed by the witness and that the matters contained within the statement are true and are within her knowledge. Based upon my review of this written statement, and any submissions from the parties regarding the relevance and admissibility of this proposed evidence, I will determine what evidence from this witness will be allowed and make suitable arrangements to receive her evidence.

14Accordingly, the applicant’s Request for an adjournment is denied, and the hearing will proceed in Kingston as scheduled on June 1, 2011.

15With regard to the applicant’s Request for an extension to file his pre-hearing materials, I am prepared to allow him an extension to May 12, 2011, to file these materials, which is 20 days prior to the hearing. No further extensions will be permitted.

16With regard to these pre-hearing materials, the applicant needs to provide to the respondent and file with the Tribunal by May 12, 2011, any documents upon he intends to rely at the hearing that are relevant to the March 2007 competition for the Sessional Adjunct Instructor position. In addition to the written statement from the witness as described above, the applicant also needs to provide to the respondent and file with the Tribunal by May 12, 2011, a description of the evidence of any other witnesses, including himself, that he intends to call at the hearing relevant to the March 2007 competition for the Sessional Adjunct Instructor position.