HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
B.C.
Applicant
-and-
Durham Catholic District School Board
Respondent
AND B E T W E E N:
B.C.
Applicant
-and-
Durham Regional Police Services Board and Sara Foote
Respondents
INTERIM DECISION
Adjudicator: Mark Hart Date: June 15, 2012 Citation: 2012 HRTO 1182 Indexed as: B.C. v. Durham Catholic District School Board
Introduction
1This Interim Decision is written in response to a request for adjournment of the hearing day in this matter scheduled for June 15, 2012.
2On June 12, 2012, counsel for the respondent Durham Catholic District School Board wrote to the Tribunal to request an adjournment of the hearing day scheduled for June 15, 2012 on consent of all parties. The request was stated to be for the accommodation of a Code-related need, on the basis that the School Board’s representative is unable to attend the hearing date scheduled on June 15, 2012 for family status reasons requiring accommodation. The School Board states that its representative has a personal family situation that requires him to be out of the country on June 15 that only came to his attention last week. It states that its representative has been trying since the situation arose last week to find a way to be in the country and at the hearing on June 15, however it became apparent on June 11 that his absence on June l5 could not be avoided.
3The School Board asks that the Tribunal not order it to proceed with its case without its representative, on the basis that his attendance at the hearing of this matter is very important to the School Board. It is stated that its representative is in-house counsel for the School Board, he has been acting as co-counsel in this proceeding, and he has been advising and actively involved at all stages. Additionally, it is stated that that there is no other staff member at the School Board who is as knowledgeable about this matter.
4While the adjournment request was stated to be on consent of all parties, the School Board’s letter indicates that the consent of the applicant is conditional on an additional hearing day being scheduled on or prior to September 14, 2012. The School Board offered a range of available dates in July, August and September 2012, for which it was stated that the applicant also was available. Applicant’s counsel subsequently clarified that in fact the applicant was not available for two of the September dates. At the time of the School Board’s letter, the availability of the other respondents on the proposed dates had not yet been determined.
5On June 13, 2012, the Tribunal wrote to the parties to indicate the adjudicator’s availability on the proposed dates, which was restricted to two days in July and two days in August. Counsel for the Durham Regional Polices Services Board and Constable Foote subsequently indicated that they are not available on any of those dates.
6This matter has gone on for far too long. The underlying complaint was filed with the Ontario Human Rights Commission in June 2008 and relates to events that occurred during the 2007-2008 school year, which is now over four years ago. The hearing in this matter commenced in January 2012 and already has extended over four hearing days. I am extremely loathe to see this matter delayed further.
7Having said that, I need to be sensitive to the Code-related need for accommodation of the School Board’s representative and the fact that the other parties have consented to the adjournment request, although the applicant has done so conditionally. Unfortunately, due to the complication of coordinating the schedules of multiple parties, multiple counsel and the adjudicator, particularly over the summer months, it has not been possible to find an alternate hearing date on or prior to September 14, 2012. However, as matters currently stand, my schedule is open for the following three weeks, namely the weeks of September 17, September 24 and October 1, 2012. I am optimistic that the parties will be able to find acceptable dates within this period of time, which would be only shortly after the date the applicant had hoped for.
8In all of these circumstances, I am reluctantly prepared to grant the School Board’s adjournment request. Accordingly, the hearing day scheduled for June 15, 2012 is hereby cancelled.
9Applicant’s counsel has been asking that I schedule a sixth hearing day to complete this matter. To this point, I have resisted doing so on the basis of my experience that hearings like this one have a tendency to expand to fill the time available. However, given the length of the delay in scheduling a further hearing date, it is my view that it is now appropriate to schedule two further hearing days in order to ensure that this matter is completed in as timely a manner as possible at this point.
10It is my expectation that on the next scheduled hearing date, applicant’s counsel will complete cross-examination of Vice-Principal Duane within approximately one hour, and we will then hear from Principal Fedak, whose evidence in its totality I expect should be completed within about one hour given his limited involvement in the events at issue. After this, we will hear from Constable Foote. I understand that her counsel will largely be relying upon her witness statement as a statement of her evidence in chief and that any supplementary questions in chief will be brief. I also expect that any questions by counsel for the School Board will be brief. This, in my view, should leave more than sufficient time for applicant’s counsel to complete cross-examination of Constable Foote before the end of the next hearing day.
11This leaves the matter of any evidence from the applicant in reply, and final submissions. It is my hope, although this may be too optimistic, that we can complete the evidence, including any reply evidence, on the next scheduled hearing day. If that is not possible, I will make arrangements for the applicant to provide written notice of any proposed reply evidence, with an opportunity for the respondents to raise any issue as to whether this proposed evidence is proper reply, prior to the final hearing day. I would then propose to hear any proper reply evidence and final submissions on the sixth and final hearing day.
12As a result, we are looking to schedule one hearing day fairly early in the range of available dates offered to the parties and then ideally a second hearing day a week or two later.
DIRECTION
13For that reason, I am directing the parties to provide all of their availability during the weeks of September 17, September 24 and October 1, 2012 by no later than June 20, 2012.
Dated at Toronto, this 15th day of June, 2012.
”signed by”
Mark Hart
Vice-chair