Christopher Thompson v. Workplace Safety and Insurance Board, 2012 HRTO 1547

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Thompson

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: August 10, 2012

Citation: 2012 HRTO 1547

Indexed as: Thompson v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS

Christopher Thompson, Applicant

Self-represented

Workplace Safety and Insurance Board, Respondent

Gurjit Brar, Counsel

Introduction

1This Application was filed on February 10, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination with respect to goods, services and facilities on the basis of disability. The Application names the Workplace Safety and Insurance Board (“WSIB”) as a respondent. This matter is currently scheduled to be heard by the Tribunal on August 15 and 16, 2012.

2On July 9, 2012, the applicant filed a Request for an Order During Proceedings (“Request”) to defer this Application until after the hearing of another Application that the applicant has filed with the Tribunal.

3On July 16, 2012, the respondent, WSIB, filed a Response to a Request, opposing the applicant’s Request to defer.

4On July 19, 2012, the applicant filed a Request for an “extension of time”. In particular, the applicant requests, based on medical reasons, that the August 15 and 16, 2012 hearing dates be rescheduled for two months later.

5On July 30, 2012, the applicant filed a Request for an adjournment, in the event that his July 16 and 19, 2012 Requests are not granted.

6On August 2, 2012, the respondent filed a Response to a Request, which appears to be a Response to the applicant’s July 30, 2012 Request. In this Response, the WSIB opposes the applicant’s Request for an adjournment of the scheduled hearing dates.

7This Interim Decision addresses the applicant’s Requests.

REQUEST TO DEFER

8The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

9The Tribunal will generally defer an application where parties are already engaged in legal proceedings raising similar facts and issues. See Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280. However, deferral is not automatically indicated simply because there are other legal proceedings involving some of the parties. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

10Factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

11In the present case, the applicant alleges that he sustained a head injury resulting in reduced cognitive function. He alleges, among other things, that the respondent, WSIB, subjected him to discrimination in the area of goods, services and facilities, and failed to accommodate his disability-related need to have all communications in writing. He seeks deferral of this Application until after the hearing of another Application that he has filed with the Tribunal.

12In his other Application, the applicant also alleges that he experienced discrimination on the basis of disability and was not accommodated; however, the applicant’s other Application alleges discrimination in the context of employment and names his employer as a respondent. It appears that the applicant’s other Application proceeded to a summary hearing on the issue of whether or not it should be dismissed, in whole or in part, as having no reasonable prospect of success, but it does not appear that a decision has been issued. In any event, there are no dates currently scheduled for a full hearing of the applicant’s other Application.

13Having reviewed the parties’ materials, I find that any overlap between this Application and the applicant’s other Application with the Tribunal is minimal. While the factual background regarding the applicant’s disability may be relevant to both proceedings, the allegations of discrimination, including a failure to accommodate, involve the applicant’s dealings with different entities and are distinct. I also note that, while the applicant asserts in his Request to defer that the WSIB violated the Code when it failed to take action after he informed the WSIB that his employer made false or misleading statements to the WSIB, this allegation does not appear to be made in either of the applicant’s Applications with the Tribunal. Again, even if these allegations were made, they concern different entities.

14The present Application is also ready to proceed to a hearing, whereas there are no dates set for a full hearing of the applicant’s other Application with the Tribunal. In my view, there is little possibility of inconsistent factual findings in the circumstances. I find that deferral is not appropriate in this case.

ADJOURNMENT REQUEST

15With respect to the applicant’s July 19, 2012 Request for an “extension of time”, the applicant is essentially requesting that the August 2012 hearing dates be adjourned and rescheduled for two months later. In this Request, the applicant submits that he had a bicycle accident on April 19, 2012, following which he was in the hospital for 40 days, being released on May 29, 2012. He submits that it took about one month after being released from the hospital for him to catch up “to pressing issues”, this Application being one of the most important of the pressing issues. He asserts that during the above approximately 2-month period, he was medically unable to do anything related to this Application, including preparing for the hearing. He submits that he has worked as fast as he is medically able throughout this Application, referring to both his medical condition prior to and as a result of his April 19, 2012 accident. He states that he is willing to submit medical documents concerning his accident, his time in the hospital, and medical consequences after leaving the hospital, but he has not done so.

16In his July 30, 2012 Request for an adjournment, which the applicant indicated he is pursuing only if his July 9 and 19, 2012 Requests are not granted, the applicant submits that he has received new information pertinent to this Application, after it was submitted, and that he has experienced exceptional circumstances preventing him from attending the hearing with the Application “complete or prepared”.

17With respect to the new information, the applicant submits that the WSIB failed to accommodate his request that it communicate with him in writing, and that he received new information pertinent to his Application after it was filed. He refers to three letters he received in March 2011, and a single document that he received on June 1, 2012 in the context of his other Application with the Tribunal. He also asserts that there is more “new information” that he has not yet been able to add to this Application due to exceptional circumstances, and that he is requesting an adjournment to add this new information to his Application pursuant to the Tribunal’s Rules and that he will make a Request for an amendment.

18With respect to “exceptional circumstances” the applicant reiterates that he had a bicycle accident on April 19, 2012, was in the hospital for 40 days, and still had medical challenges relating to the accident once he was released from the hospital. Referring to the Tribunal’s Policy on Accessibility and Accommodation, the applicant also states that he is making a request for accommodation of disability-related needs, and that, as a result of his accident, he has ongoing medical challenges.

19In its August 2, 2012 Response, the respondent, WSIB, opposes the applicant’s Request for an adjournment. The respondent submits that the medical reasons put forward by the applicant do not constitute exceptional circumstances, and that the applicant has provided no particulars of his medical challenges and how he is prevented from participating in a hearing. The respondent also submits that the applicant has filed detailed submissions since being released from the hospital, demonstrating his ability to deal with issues in his Application.

20The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states that:

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

21In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

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 [now fourteen] 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 [now fourteen] days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

22In the present case, while the applicant’s accident did not occur until well after the Tribunal’s January 12, 2012 Notice of Confirmation of Hearing, the applicant submits that he was medically unable to prepare for the hearing for an approximately 2-month period following his April 19, 2012 accident. I note, however, that the applicant provided considerable materials to the respondent and the Tribunal on July 3, 2012, pursuant to the Tribunal’s Rules, including documents that he intends to rely on at the hearing and witness statements. He also provided considerable materials to the respondent and the Tribunal, including lengthy submissions and numerous documents, along with his three Requests made on July 9, 19, and 30, 2012. In my view, the applicant has neither explained how, nor provided any documentation to support that, he was not able to prepare for the scheduled hearing in this matter, and his correspondence with the respondent and the Tribunal throughout July 2012 appears to suggest that he was able to prepare for the scheduled hearing. I also note that the applicant did not submit his Request for an adjournment until approximately a month and a half after he was released from the hospital, and he has not explained why he waited that long to submit his Request.

23With respect to “new information” referred to by the applicant, the applicant specifically referred to four documents. It appears that three of the documents have been in his possession since March 2011, the month after he filed this Application. With respect to the document he indicates he received on June 1, 2012, it appears that the applicant has included this document with the documents provided to the respondent and the Tribunal that he indicates that he intends to rely on at the hearing. In my view, at this very late stage in the proceeding, any issues relating to new information that the applicant may have can be appropriately addressed at the hearing.

24Based on the information that the applicant has provided to the Tribunal thus far, I am not satisfied that the applicant has established exceptional circumstances to justify the granting of an adjournment.

25To the extent that the applicant is requesting an adjournment as an accommodation, it is not clear from the applicant’s materials how his Request is related to any disability-related needs. Although the applicant submits that he was medically unable to prepare for the hearing for an approximately 2-month period following his April 19, 2011 accident, he has not explained how he was not able to prepare for the scheduled hearing both prior to and subsequent to that time period. Also, as noted above, the applicant has not provided any medical information pertaining to any disability-related need for an adjournment. The Tribunal recognizes that accommodation needs may arise during any aspect of the Tribunal’s process, and will address any accommodation requests that arise, as appropriate, including within the context of the hearing.

ORDER

26The applicant’s Requests to defer this Application and to adjourn the scheduled hearing dates are denied. The hearing will proceed on August 15 and 16, 2012 as scheduled.