Human Rights Tribunal of Ontario
Between: Mohamed Husain, Applicant -and- Tortoise Restaurant Group, Robert Lefebvre, Terry Campbell, Clarke Lishman, Stuart Beeston, Gail Wright and Chris Ferrino, Respondents
And Between: Mohamed Husain, Applicant -and- Tortoise Restaurant Group, Jim Lishman, Stuart Beeston and Clarke Lishman, Respondent
Interim Decision
Adjudicator: Alison Renton Date: September 5, 2012 Citation: 2012 HRTO 1669 Indexed as: Husain v. Tortoise Restaurant Group
Written Submissions
Mohamed Husain, Applicant Self-represented
Tortoise Restaurant Group, Robert Lefebvre, Terry Campbell, Clarke Lishman, Stuart Beeston, Gail Wright, Jim Lishman, Respondents Paul Wearing, Counsel
Chris Ferringo, Respondent No one appearing
1The hearing in these matters is scheduled for September 6 and 7, 2012, pursuant to a Notice of Hearing dated February 1, 2012 ("the Notice"). The Notice sets out a timetable for the parties to comply with their disclosure obligations under Rules 16 and 17 of the Tribunal's Rules of Procedure, with the last deadline being July 23, 2012.
2According to the information on the Tribunal's file, the applicant is represented by Cecil Norman, paralegal, and the respondents (apart from Chris Ferringo) are represented by Paul Wearing, counsel. Mr. Ferringo is self-represented.
3A Case Assessment Direction dated August 24, 2012 ("the August 24 CAD") was issued as the applicant had not complied with his Rules 16 and 17 disclosure obligations. The Tribunal directed the applicant to file his disclosure obligations immediately and warned that if he did not do so within seven (7) days from the date of the August 24 CAD, the Application may be dismissed as abandoned. To date, the applicant has not complied with his disclosure obligations.
4On August 31, 2012, the applicant himself, and not his representative, faxed a letter to the Tribunal requesting an adjournment of the hearing ("the August 31 adjournment request"). No supporting or medical documentation was provided. Despite Rule 1.12 of the Tribunal's Rules of Procedure, which requires that parties communicating with the Tribunal in writing are required to deliver a copy of their written communication to their other parties, it did not appear that the applicant provided a copy of the August 31 adjournment request to the respondents. His representative, however, was copied.
5The applicant's letter states:
I am writing to inform you on my inability to attend the upcoming hearing set for September 6th and September 7th, 2012. Unfortunately, due to unforeseen circumstances, I have been experiencing many difficulties in my personal/family life.
Recently, an immediate family member has suffered a debilitating stroke. Consequently, I have been acting as the primary caregiver for this individual. At present, I dedicate myself to tending to this individual's needs at least 2 hours a day. Additionally, over the past few months I have been extensively committed to providing care for my ill grandfather. Due to the nature of his illness and my personal relation to him, I have devoted much of my time to his supervision. These predicaments have ultimately taken a toll on my physical and mental health, and currently, I am taking antidepressants for my condition. I regret to inform you that at the present time I am mentally unfit to stand trial, and humbly request that my hearing be rescheduled for at least few [sic] months ahead….
6The Tribunal issued another CAD dated August 31, 2012 ("the August 31 CAD"), and attached a copy of the August 31 adjournment request to the CAD. In the August 31 CAD, the Tribunal noted that it was surprising that the adjournment request was coming directly from the applicant as opposed to his representative, whom, the Tribunal understood, was still representing him.
7Before determining the August 31 adjournment request, the Tribunal directed the applicant's representative, forthwith, to confirm whether or not he is still representing the applicant, and if so, to advise the Tribunal whether or not an adjournment request was still being requested. The applicant's representative was directed to email this information to the Tribunal, copying counsel for the respondents and Mr. Ferringo (who is not represented by counsel for the other respondents).
8The Tribunal also provided the respondents an opportunity to address the August 31 adjournment request. They were directed to email their response to the Tribunal, copying the other parties, forthwith, but in any event no later than 12:00 noon on Tuesday, September 4, 2012.
9As of the issuance of this Interim Decision, the Tribunal has not heard from Mr. Norman, the applicant's representative, or from Mr. Ferringo, a personal respondent.
10The Tribunal has heard from Mr. Wearing, on behalf of his clients, in the form of a letter and a Request for Order During Proceedings ("RFOP"), both dated September 4, 2012, stating that his clients object to the August 31 adjournment request. In the RFOP, the respondents request that the Tribunal dismiss the Applications as the applicant has known about the September hearing dates since February 2012; and still has not complied with his disclosure requirements, despite the August 24 CAD being issued. Further, the respondents submit that despite a recent discussion between representatives, the applicant's representative failed to identify the applicant's personal circumstances set out in the August 31 adjournment request and failed to state that the applicant would be seeking an adjournment.
Analysis
11The Tribunal has made it clear on numerous occasions that adjournments, particularly at the last minute, are not automatically granted. In its Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments, it 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 adjournment, even when all parties consent
12In 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.
13In this Application, and not unsympathetic to some of the applicant's personal circumstances, I do not find that the reasons the applicant has provided, as currently framed, to be so exceptional that an adjournment is warranted.
14The situation with the applicant's grandfather has apparently existed for several months and has not been previously raised as an issue by the applicant or his representative. The situation with the unidentified family member who had a stroke is claimed to be "recent" with no further details provided about what it occurred. While the applicant says that he is required to spend "at least 2 hours a day" attending to this relative, he has not provided any information as to when or where that care may be required and it may be that some accommodation in the hearing itself can address his concerns in this regard. The Tribunal has a "Policy on Accessibility and Accommodation" under which the applicant can seek accommodation in the hearing schedule to address his requirements.
15The applicant claims that he is "unfit to stand trial" and that the circumstances as set out in his August 31 adjournment request have caused a toll on his physical and mental health, such that he is taking anti-depressants. However, the applicant has not provided any medical documentation in support of these statements, including that he is medically incapacitated from attending the hearing.
16Furthermore, the applicant has not provided any reason to explain why he has still not complied with this Rules 16 and 17 disclosure obligations. The August 31 adjournment request was submitted on the last day given by the Tribunal, pursuant to the August 24 CAD, before the applicant's Application may have been dismissed as abandoned.
17Accordingly, I find that the applicant's request does not constitute extraordinary circumstances and his August 31 adjournment request is denied. The hearing will commence on Thursday, September 6, 2012, commencing at 9:30 a.m. at 655 Bay Street, 14th Floor, Toronto, ON.
18As the applicant has not complied with his Rules 16 and 17 disclosure obligations, other than with leave from the Tribunal, he will not be permitted to call any witnesses and/or rely upon any documentation at the hearing.
Dated at Toronto, this 5th day of September, 2012.
"Signed by"
_____________________________
Alison Renton Vice-chair