HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kenneth Boyd
Applicant
-and-
City of Toronto and Frank Mitchell
Respondents
-and-
Toronto Professional Fire Fighters’ Association
Intervenor
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: Boyd v. Toronto (City)
1This Interim Decision addresses two issues: (i) the applicant’s request for an adjournment of six hearing dates scheduled in June and July 2011; and (ii) the respondent’s request for a detailed list of documents the applicant intends to rely upon. Both requests are denied.
BACKGROUND
2This Application was filed with the Tribunal on December 23, 2008. There have been extensive preliminary issues: see the decisions in Hansen v. Toronto (City), 2010 HRTO 13 and Boyd v. Toronto (City), 2010 HRTO 607 and 2010 HRTO 1499. On consent of all parties, the hearing was scheduled in October 2010 for six days in June and July of 2011.
3The Tribunal’s Case Assessment Direction of October 19, 2010, contained the following directions:
The first six hearing dates will be scheduled on June 16, 17, 29, 30 and July 7 and 8, 2011.
As the applicant has confirmed that he will not be calling any medical evidence for the truth of its contents, the issue of cross-examination of physicians does not arise in this case.
The Tribunal declines to order a Rule 19A summary hearing before any evidence has been called. The respondents remain free to request the dismissal of all or part of the Application on a preliminary basis during the hearing, and the Tribunal will rule on that issue if and when it arises.
Should the applicant wish to bring a request to supplement the witness statements that have been filed, he shall file a Request for Order During Proceedings in Form 10 no later than November 23, 2010. Any such request shall include a complete and final copy of the proposed witness statements and full argument in support of why an amendment should be permitted at this stage. Should the applicant argue that the amendments are a response to the respondents’ witness statements the written submissions shall explain which aspects of the respondents’ evidence are being responded to.
If the respondents oppose the amendments, they shall file a response in Form 11 by December 7, 2010. Should they argue that the statements do not in fact respond to the respondents’ evidence the submissions shall explain why this is the case.
By December 14, 2010, the applicant may respond to the respondents’ submissions.
The parties shall deliver to each other and file with the Tribunal all documents they intend to rely upon no later than May 2, 2011.
The above dates will not be extended absent exceptional circumstances.
The parties shall be prepared to deal with all issues of law and evidence that may arise during the course of the hearing. Absent exceptional circumstances, the Tribunal will not adjourn the hearing for purposes of research of the law, obtaining further evidence, or because the party did not expect that the hearing would move as quickly as it did.
While taking into account particular circumstances, the Tribunal intends to take a strict interpretation of Rules 5.7, 16.4 and 17.4, in particular in light of its direction of August 4, 2010 that “the witness statements provided by the parties must be complete and detailed, and should include all of the evidence that it is anticipated the witness will give at the hearing.” This requires detail of exactly what the witness’s testimony will be.
4On January 18, 2011, after missing deadlines that had been set by the Tribunal in other cases, the paralegal who was representing the applicant and some other firefighters, Katharine Brooks, wrote to the tribunal to advise that she was not representing the applicant or the other applicants. The applicant is now represented by an unpaid friend, Jurgen Degen.
5The applicant did not file a request to amend the Application by November 23, 2010 nor did he file any documents by May 2, 2011. On May 5, 2011, following various correspondence from counsel for the respondent, the Tribunal issued the following Case Assessment Direction:
By Case Assessment Direction dated October 20, 2010, the parties were directed to deliver to each other and file with the Tribunal all documents they intend to rely upon at this hearing. The respondents filed voluminous documents. The applicant filed none.
The applicant shall immediately, and in any event within 10 days of the date of this Case Assessment Direction: (1) confirm whether he intends to pursue his Application and (2) provide the Tribunal with copies of all documents he intends to rely upon, or, if there are no new documents he is filing, confirm which of the respondents’ documents he will be using to make his case.
If the applicant fails to comply with this Direction, the Application may be dismissed as abandoned.
REQUESTS
6The applicant wrote to the Tribunal on May 9, followed by a Request for Order filed May 10, 2011. He states that he intends to pursue his case, wishes to rely upon an additional case, and provides the following list of documents he intends to rely upon that he says have been filed with the Tribunal to date:
i) my chronology
ii) my responses to the a) City of Toronto and b) the Toronto Professional Fire Fighter’s Association
iii) all of the rebuttals that the: a) City of Toronto and b) the Toronto Professional Fire Fighter’s Association, sent to me.
iv) all of my Return to work forms and Dr.’s letters.
v) any of the case assessments that Katherine Brooks generated and sent to the Tribunal/City/Association.
vi) all of the documents that were shared with the, Tribunal, the City, and the Association’s lawyers.
vii) The policies and guidelines pertaining to the Code
7The applicant also requested an adjournment of the dates scheduled. In his letter of May 9, 2011, he states that after he was notified by his paralegal that she was ill and unable to represent him at the Tribunal, he had a difficult time finding a representative. He stated that at the beginning of April he found a representative, who referred him to another representative because she was unavailable. The new representative, he states, will not have sufficient time to review and prepare his case before the first day of hearing on June 14, 2011.
8The respondent opposes the adjournment. The respondent objects to the adjournment and notes that the applicant has had four months to find a new representative. It also states that it opposes the amendment of the application. Finally, it takes the position that the applicant has not been clear about which documents the applicant intends to rely upon. Counsel for the City requests a detailed list of documents in accordance with Rule 16.3 so that the City is clear about what Mr. Boyd intends to rely upon.
9In response, Mr. Degen, on behalf of the applicant, wrote an e-mail dated May 10, 2011, that reads in relevant part as follows:
Although Ms. Brooks was not representing any of the other firefighter applicants due to an illness, she was going to be involved as a representative until very recently for Mr. Boyd.
Definitely not since Jan 2011, which was the case for the other fire fighters, as Ms. Kitchura maintains.
10When Ms. Kitchura pointed out that Ms. Brooks had advised the Tribunal on January 18, 2011 that she would not represent Mr. Boyd, Mr. Degen sent the Tribunal the following e-mail on May 11, 2011, which reads in relevant part as follows:
Ms Kitchura is correct that Ms. Brooks notified all parties that she was not representing Mr.Boyd in January.
However the following changed that for a time;
January 2011 Mr Stacey Ball was notified and a consultation took place.
February 2011 Davenport Law was contacted to take the case and look at it's merits.
February 2011 Mc Leish Orlando were contacted and looked at the merits.
March and April 2011 Ms. Brooks was contacted and was interested, with specific conditions …. Later that would prove detrimental and was thus not continued.
Apr 1/2011 Roch Genova was contacted and Ms. Barbato reviewed the case. She reviewed it and wanted to take the case but weeks later couldn't commit, because she has a class action suit that will be underway from June until possibly July.
May 2011 Ms. Barbato found a new lawyer Mr. Ed Morgan who could not see Mr. Boyd until May 13/2011, in the AM.
Mr. Boyd has not been idle and has been seeking a legal representative, as quickly as possible under the circumstances.
11In light of his e-mail of May 11, 2011, it is clear that Mr. Degen did not provide a complete and accurate version of events to the Tribunal in his e-mail of May 10, 2011.
ADJOURNMENT
12The Tribunal’s Practice Direction on Scheduling reads as follows:
The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or 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.
13In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at paras. 4-5, the Tribunal stated as follows:
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.
…The failure of a party to make arrangements for the hearing does not justify an adjournment: Pantoliano v. Metropolitan Toronto Condominium Corporation No. 570, 2009 HRTO 548.
14Ms. Brooks withdrew from representation for the applicant in January 2011. While the applicant has had discussions with her again about becoming his representative, it is clear he had at least six months’ notice of the need for new representation if he wished to be represented at the hearing. The adjournment request was made nearly five months after he knew he needed a representative, and after the respondents met their obligation to file documents by May 2, 2011. In the circumstances, I cannot conclude that there are exceptional circumstances justifying this adjournment, in particular in light of the length of time since the Application was filed and the fact that the personal respondent has stated to the Tribunal that he is under significant stress as a result of the fact that this proceeding is outstanding. Having considered and balanced the interests of the applicant, the respondents, and the Tribunal’s process, the adjournment request is denied.
LIST OF DOCUMENTS
15The respondent is correct that the applicant’s list does not comply with the Tribunal’s requirement in Rule 16.3 that a list of specific documents to be relied upon be filed with the Tribunal. In all the circumstances, I will not make an order that the applicant do so. However, if the lack of a specific list results in prejudice to the respondents or the hearing process, this factor may be taken into account if the respondent objects to the admission of a document at the hearing.
16As I understand Mr. Degen’s letter of May 10, 2011, the applicant has confirmed that he is not requesting an amendment to the Application. Accordingly, there is no need to address this issue.
ORDER
17The hearing will proceed as scheduled commencing on June 16, 2011.
Dated at Toronto, this 11th day of May, 2010.
“Signed by”
David A. Wright
Associate Chair