HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shoaa Farhan T. Alshamari
Applicant
-and-
The Governing Council of the University of Toronto,
University Health Network, and Vera Bril
Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Alshamari v. The Governing Council of the University of Toronto
WRITTEN SUBMISSIONS
Shoaa Farhan T. Alshamari, Applicant ) Self-represented
The Governing Council of the University ) Sari Springer, Counsel of Toronto and Vera Bril, Respondents )
University Health Network, Respondent ) Naomi Margo, Counsel
1The purpose of this Interim Decision is to deal with the applicant’s request to adjourn and reschedule the hearing.
2On June 16, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
3On February 10, 2012, the Tribunal issued a Notice of Confirmation of Rescheduled Hearing to the parties, which informed them that the hearing was scheduled for September 4, 5 and 6, 2012.
4On August 27, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) to deal with the applicant’s failure to comply with the Tribunal’s Rules of Procedure on disclosure of documents and witnesses in advance of the hearing, and her failure to communicate with the Tribunal as to whether she would be attending the hearing.
5In para. 7 of the CAD, the Tribunal noted the following with respect to communications that it had received from the applicant’s legal counsel:
On August 20 and 21, 2012, the Tribunal received two e-mails from a lawyer, who stated that he had been retained by the applicant in July 2012, but was now withdrawing from the case for health reasons. He stated that he had advised the applicant to seek another lawyer. There was no explanation for the applicant’s failure to comply with the Tribunal’s Rules on disclosure of documents and witnesses in July 2012, when the lawyer, by his own admission, was healthy enough to represent the applicant at the hearing.
6In para. 13 of the CAD, the Tribunal provided the following directions to the parties:
(…) the applicant is directed to deliver to the respondents and file with the Tribunal the materials required under Rules 16 and 17, and/or deliver to the respondents and file with the Tribunal a Request for an Order During Proceedings (Form 10) to adjourn the hearing, by no later than 5:00 p.m. on Wednesday, August 29, 2012. If the applicant fails to follow this direction, her Application may be dismissed as abandoned. The respondents are directed to respond to any adjournment request immediately.
7On August 29, 2012, the applicant sent the Tribunal an e-mail which requested that the hearing be adjourned and rescheduled because her lawyer withdrew from the case for health reasons. The applicant did not address her failure to comply with the Tribunal’s Rules on disclosure of documents and witnesses in advance of the hearing.
8On the same day, the Governing Council of the University of Toronto (“GCUT”) and Vera Bril sent the Tribunal an e-mail, which stated that they were hesitant to agree to the applicant’s adjournment request because, notwithstanding her lawyer’s withdrawal from the case for health reasons, the applicant has failed to indicate any intention to pursue her Application at a hearing, as evidenced by her failure to comply with the Tribunal’s Rules on pre-hearing disclosure. The GCUT and Ms. Bril requested that the Tribunal issue a ruling which addresses these matters.
9On August 30, 2012, the University Health Network (“UHN”) sent the Tribunal an e-mail, which agreed with the position taken by the GCUT and Ms. Bril. The UHN added that the Tribunal should set out conditions of compliance for the applicant.
10The Tribunal’s Practice Direction: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments provides that requests to reschedule a hearing must be made within 14 days of receiving the Notice, and requests for adjournments thereafter will only be granted in extraordinary circumstances, such as the illness of a party, witness, or representative.
11The Tribunal’s approach to late adjournment requests was set out in Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4:
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 [now 14 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 those broader interests by requiring that a party advise within five days [now 14 days] that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.
12In my view, the applicant’s counsel’s recent withdrawal from the case due to health reasons constitutes an extraordinary circumstance that justifies adjourning the hearing. At the same time, though, neither the applicant nor her counsel has explained why there was a failure to comply with the Tribunal’s Rules on disclosure of documents and witnesses in July 2012, when her counsel, by his own admission, was healthy enough to represent the applicant at the hearing. In other words, if the applicant’s counsel did not fall ill and continued to represent her, the applicant still would not have been ready to proceed on the scheduled hearing dates. I therefore agree with the UHN that any order granting an adjournment and rescheduling of the hearing should include conditions that the applicant must comply with.
13The Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See section 40 of the Code and Rule 1.1 of the Tribunal’s Rules. This duty is not only in relation to applicants, but also in relation to respondents, who may expend significant resources responding to human rights applications, and the public, whose tax dollars fund the Tribunal. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated at paras. 4-7:
Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.
When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.
Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.
The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.
14Accordingly, the Tribunal makes the following orders and directions:
The applicant’s request to adjourn the hearing on September 4, 5 and 6, 2012 is granted.
Within three weeks of the date of this Interim Decision, the applicant shall deliver to the respondents and file with the Tribunal the following:
(a) a list of all arguably relevant documents in her possession, and a copy of each document contained on the list, excluding any documents for which privilege is claimed (see Rule 16);
(b) a list of documents which the applicant intends to rely upon at the hearing, and a copy of each document on the list (see Rule 16); and
(c) a witness list which has the name of every witness, including expert witnesses, that the applicant intends to call at the hearing, and a brief statement summarizing the expected evidence of each witness (see Rule 17).
If the applicant complies with 2), the parties shall communicate with each other, and advise the Tribunal’s Registrar within two weeks as to their availability for a rescheduled hearing.
If the applicant fails to comply with 2), the Tribunal shall dismiss the Application.
Dated at Toronto, this 31st day of August, 2012.
“Signed by”
Ken Bhattacharjee
Vice-chair