Zaromitidis v. Toronto Police Services Board, 2012 HRTO 1676

Human Rights Tribunal of Ontario

Between:

Jimmy Zaromitidis Applicant

-and-

Toronto Police Services Board and her Majesty the Queen in right of Ontario as represented by the Minister of Community Safety and Correctional Services Respondents

Interim Decision

Adjudicator: Eric Whist Date: September 5, 2012 Citation: 2012 HRTO 1676 Indexed as: Zaromitidis v. Toronto Police Services Board

Written Submissions

Jimmy Zaromitidis, Applicant Self-represented

Ministry of Community Safety and Correctional Services, Respondent Marnie Corbold, Counsel

1This Interim Decision addresses a request from the Ministry of Community Safety and Correctional Services (the “Ministry) for an adjournment of the hearing of the applicant’s Application scheduled for October 11 and 12, 2012.

Background

2This is an Application filed on May 31, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment and membership in a vocational association on the basis of disability, race, ethnic origin and age. The Application alleges that the applicant was subject to discriminatory treatment when applying to become a police constable. The Application alleges that the requirements of the hearing test used in the pre-interview stage of the Constable Selection System (the “CSS”) are discriminatory. The Application alleges that a Toronto Police Services officer made a number of comments about the applicant’s age and perceived race and ethnic origin that were inappropriate and offensive.

3In its Response to the Application dated August 2, 2011, the respondent, Toronto Police Services Board (the “TPSB”), denies that it acted in violation of the Code. The TPSB also submits, in part, that allegations about the CSS criteria should be brought against the Ministry as it was, and is, responsible for the development of the CSS requirements, including hearing standards. It further submits that it had no involvement with the applicant’s hearing test which was conducted by an independent organization, Applicant Testing Services Inc. (“ATS”). ATS is contracted by the Ontario Association of Chiefs of Police, through a licensing agreement with the Ministry to provide CSS testing.

4The applicant and the TPSB initially agreed to mediation and a mediation was scheduled for November 14, 2012 and then re-scheduled for November 18, 2012. The applicant then decided that he would not participate in mediation.

5On February 28, 2012 the Tribunal issued a Notice of Hearing to the applicant and TPSB scheduling the hearing of the Application for October 11 and 12, 2012.

6On June 21, 2012 the TPSB filed a request that the Ministry be added as a respondent. In an Interim Decision dated July 18, 2012, 2012 HRTO 1408, the Tribunal added the Ministry as a respondent. The Tribunal directed the Ministry to file its Response within 35 days of the date of the Interim Decision.

7The Tribunal also issued a Case Assessment Direction (“CAD”) on July 18, 2012. This CAD directed the Ministry, TPSB and ATS to file responses within 14 days of the date of the CAD to the applicant’s April 10, 2012 request for production of documents in the possession of ATS related to the applicant’s CSS testing.

8The Tribunal issued a further CAD on July 31, 2012 granting extensions to ATS and the Ministry to file their responses to the applicant’s production request to August 17, 2012. The Tribunal also granted an extension to the Ministry to file its Response to the Application until September 5, 2012 and an extension to the parties to disclose their documents, witnesses and witness statements until September 14, 2012.

9On August 17, 2012 both the Ministry and ATS filed their responses to the applicant’s request for production.

10On August 17, 2012 the Ministry also filed its request that the hearing scheduled for October 11 and 12, 2012 be adjourned.

Request for an Adjournment

11The Ministry asks for an adjournment on the basis that it has only recently been added as a respondent, months after the pleadings from the other parties were filed and six months after hearing dates were set. It submits that the short timeframe until the hearing of October 11 and 12, 2012 does not afford the Ministry an adequate opportunity to prepare for the hearing. It submits it does not have the opportunity to consult, to identify relevant documents and witnesses including potentially, an external expert witness to support its position on the hearing standard applied in the CSS hearing test. The Ministry further raises concerns about the deadlines for it to file its Response, and for the applicant to file his Reply are such that the applicant would not be required to file his Reply until five days after the deadline for the parties to file their disclosure materials. The Ministry submits that it would not be fair or just to require the Ministry to file its disclosure materials without the benefit of reviewing the Applicant’s Reply.

12The Ministry further submits that it is willing to attempt to mediate this matter and that should the applicant be interested in pursuing such a resolution option it would seem unlikely that a mediation date could be set after a Response and Reply had been filed and prior to the currently scheduled hearing dates.

13The Ministry states that it has conferred with the TPSB and that the TPSB does not object to an adjournment.

14On August 17, 2012 the applicant filed a response opposing the Ministry’s adjournment request. The applicant submits that the Ministry indicated to the TPSB as early as June 15, 2012 that it would consent to be added as a respondent and that it has had adequate time to prepare for the hearing. He submits that it would not be fair, under these circumstances, to grant an adjournment request.

15The applicant also indicates his willingness to participate in mediation but submits that this mediation could take place before the September 14, 2012 deadline for the production of documents and witnesses.

Decision

16The Tribunal’s Confirmation of Hearing Notice states that requests for adjournments will be dealt with according to the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments. This Practice Direction provides that requests to reschedule must be made within 14 days of receiving the Notice of Confirmation of Hearing and that the parties need to confer and provide the Tribunal with alternative dates if a rescheduling is being requested. The Practice Direction also states that The Tribunal discourages requests for adjournments outside this 14 day period noting that later requests for adjournment, particularly ones at the last minute, are a significant impediment to fair and timely access to justice. Consequently, the Tribunal will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the Tribunal will not grant adjournments, even when all parties consent.

17I am prepared to grant the Ministry’s adjournment request. I find it unfortunate that neither the TPSB nor the applicant sought to add the Ministry as a respondent on a more timely basis. However, I further find the fact that the Ministry has been added as a respondent less than three months before the scheduled hearing raises procedural issues that warrant adjourning the scheduled hearing. In my view it would not be fair or just to require the parties to prepare for the hearing in this short time frame when the Ministry has yet to file a Response and the applicant has yet to file a potential Reply to this Response. The Ministry’s Response and the applicant’s Reply may, given the nature of the issues in dispute, affect how the parties prepare for the hearing and the documents and witnesses they may want to rely on. I have considered whether the determination as to whether to adjourn the hearing could be delayed until after the Response and Reply have been filed but, in my view, delaying the adjournment decision to a few weeks before the scheduled hearing is not practical or fair.

18I am also mindful that the Ministry and the applicant have both indicated an interest in mediation as a resolution option. Accordingly, the Tribunal will schedule a mediation. Given the changing circumstances of this case, the Tribunal will also issue a Notice of Mediation to the TPSB. If any of the parties object to the TPSB’s participation in this mediation they can contact the Tribunal. The parties are also directed to attend mediation with dates on which they would be available for a hearing, in the event that mediation does not resolve the Application.

Other Issues

19The Tribunal will defer consideration of the applicant’s request for production. If mediation is unsuccessful and the hearing is rescheduled the Tribunal will decide the applicant’s request for production based on the written submissions the parties have already provided.

20On August 21, 2012 the applicant filed a further Request for an Order during Proceedings requesting that the Tribunal order that the President and General Manager of ATS to appear as a witness at the hearing. The Tribunal does not order witnesses to appear. Each party is responsible for making sure that a witness the party wishes to call to give evidence, shows up on the dates scheduled for hearing the application. If a party is concerned that a witness may not attend to give his or her evidence at the hearing, or if the party wants added assurance that a witness will come to the hearing, it can summon the witness. The applicant may wish to refer to the Tribunal’s Guide to Preparing for a Hearing Before the HRTO that can be found on the Tribunal’s website.

21On August 17, 2012 the applicant filed a request for accommodation. However, this request does not indicate what accommodation (special arrangements for human rights related needs) the applicant is seeking in order for him to participate in the Tribunal’s proceedings. It does not, for example, indicate that the applicant is requesting an accommodation for a disability.

22If the applicant requires an accommodation in order to participate in a Tribunal process he will need to renew his request and to explicitly state what accommodation he is seeking. The applicant should direct his request to the Tribunal’s Registrar. The applicant may also wish to refer to the Tribunal’s Policy on Accessibility and Accommodation that can be found on the Tribunal’s website.

Order

23The Tribunal makes the following order:

1. The hearing scheduled for October 11 and 12, 2012 is adjourned.

2. The Tribunal will issue a Notice of Mediation to the parties.

24I am not seized of this matter.