D.F. v. University of Ottawa, 2011 HRTO 990

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.F. by his litigation guardian W.F.

Applicant

-and-

University of Ottawa

Respondent

A N D B E T W E E N:

S.F. by his litigation guardian W.F.

Applicant

-and-

University of Ottawa

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: May 24, 2011

Citation: 2011 HRTO 990

Indexed as : D.F. v. University of Ottawa

1These are two Applications made under s. 53(5) of the Ontario Human Rights Code, both dated January 8, 2009. The underlying complaints were both filed with the Ontario Human Rights Commission (the “Commission”) on January 3, 2007.

2The purpose of this Interim Decision is to address correspondence from counsel for the applicants dated May 19, 2011, in which the applicants request an adjournment of the June 3, 2011 hearing date in this matter on the basis that their litigation guardian is currently out of the country. This request is opposed by the respondent.

3As noted above, the Applications in this matter were filed with this Tribunal in January 2009. The applicants were both 10 years old at the time the underlying complaints were filed with the Commission in 2007. This proceeding arises out of the enrolment of the applicants in a science course at the respondent University in the fall 2006, from which they subsequently were de-registered. The applicants allege discrimination in the provision of services because of age and family status.

4Mediation in this matter originally was scheduled for August 5, 2009. This date was re-scheduled to October 19, 2009, as the applicants’ litigation guardian was out of the country on that date. The mediation did not proceed on October 19, 2009, as the mediator had a conflict with one of the parties.

5The Tribunal subsequently re-scheduled mediation to July 27, 2010. Mediation did not proceed on this date as the applicants’ litigation guardian was out of the country on a pre-scheduled international course.

6The mediation was then re-scheduled to November 16, 2010. Shortly before the mediation, the Tribunal advised the parties that the mediation would be conducted by teleconference. The respondent objected and accordingly mediation did not proceed on that date.

7The Tribunal then attempted to re-schedule mediation. Counsel for the applicants advised that their litigation guardian would likely be out of the country during January 2011, and so would be looking to set a date for mediation in February 2011. By letter dated November 18, 2010, the Tribunal accordingly offered dates in February and March 2011 and asked the parties to provide their availability within 14 days. While the respondent provided its availability, no response was received from the applicants. On December 16, 2010, the Tribunal wrote again to follow up with the applicants, requesting a response by December 22, 2010. Once again, no response was received from the applicants.

8Accordingly, on January 11, 2011, the Tribunal sent a letter to the parties advising that, in light of the failure of the applicants to respond to its previous correspondence requesting their availability for mediation, the matter would proceed to a hearing. The Tribunal offered dates for the hearing in May and June 2011, and asked the parties to respond with their availability within 14 days. No response was received from the applicants.

9As a result, on January 27, 2011, the Tribunal sent out further correspondence setting June 3, 2011, as the date for the hearing and advising the parties of their pre-hearing obligations and the deadlines for compliance. If any party objected to the June 3, 2011 hearing date, the letter stated that they were to advise within 10 days. No objection was made by the applicants.

10The applicants subsequently requested an extension of the deadline to file a statement of additional facts and remedy and to comply with their disclosure obligation, as the applicants’ litigation guardian was out of the country. This request was granted on consent. The applicants complied with the extended deadline on March 4, 2011, and did not raise any objection to the June 3, 2011 hearing date.

11The Tribunal’s January 27, 2011 letter set a deadline of May 16, 2011, for all parties to serve and file a list of witnesses, a description of what each witness would say, and a copy of all documents they intended to rely upon at the hearing. The respondent complied with this deadline. The applicants did not.

12On May 19, 2011, the respondent raised the applicants’ non-compliance with their pre-hearing obligations under the Rules, and requested the Tribunal’s direction in this regard. This was followed on that day by the applicants’ adjournment request.

13The 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.

14This is a legal proceeding that was commenced by the applicants through their litigation guardian. If the applicants are serious about proceeding with their Applications, then they need to be active participants in the process and comply with their obligations under the Rules.

15The June 3, 2011 hearing date was set in late January 2011. The applicants’ litigation guardian has known about this date and the deadlines for compliance with pre-hearing obligations under the Rules since that time. In the absence of some extraordinary circumstance, it is not sufficient simply to say that the applicants’ litigation guardian is out of the country at a time when compliance with pre-hearing obligations and attendance at the hearing is required.

16No extraordinary circumstances have been put forward by the applicants as would justify the adjournment of this matter. The applicants, through their litigation guardian, are expected to attend the hearing on June 3, 2011, and to be ready to proceed.

17In this regard, I am directing the applicants to confirm by no later than 4:30 p.m. on Monday, May 30, 2011, that they will attend the hearing in Ottawa on June 3, 2011. In addition, by that date, I also am directing the applicants to comply with their pre-hearing obligation to serve and file a list of witnesses, a description of what each witness will say, and a copy of all documents they intend to rely upon at the hearing.

18If the Tribunal does not receive this confirmation and material by that time, these Applications may be dismissed as abandoned.

19If the applicants do confirm their attendance and comply with their pre-hearing obligations by that time, the Tribunal will consider any submissions from the respondent as to whether it is prejudiced by the late disclosure, and if so, what relief it seeks.