HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Errol Johnson
Applicant
-and-
Quality Home Services, Phillip Murray and State Farm Mutual Automobile Insurance Company
Respondents
INTERIM DECISION
Adjudicator: Brian Eyolfson
Indexed as: Johnson v. Quality Home Services
INTRODUCTION
1This Application was filed under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 2, 2010, and alleges discrimination on the basis of race, colour, ancestry, place of origin, ethnic origin, and reprisal, in the area of contracts.
2This matter is currently scheduled for a hearing on September 11 and 12, 2012. This Interim Decision addresses the applicant’s request to adjourn the scheduled hearing dates, based on medical reasons.
BACKGROUND
3This matter was originally scheduled to be heard on April 11 and 12, 2012. In an Interim Decision dated March 16, 2012, 2012 HRTO 551, the Tribunal granted the applicant’s request that the April 2012 hearing dates be adjourned because of the death of a member of the applicant’s family overseas. On April 3, 2012, the Tribunal issued a new Notice of Confirmation of Hearing, confirming that the Application would be heard on September 11 and 12, 2012.
4In a Case Assessment Direction (“CAD”) dated August 15, 2012, the Tribunal noted that the applicant failed to comply with the disclosure and filing requirements required under Rules 16 and 17 of the Tribunal’s Rules of Procedure and set out in the Tribunal’s Notice of Confirmation of Hearing dated April 3, 2012. The Tribunal directed the applicant to immediately file the required materials, and indicated that if the applicant did not do so within 7 days of the date of the CAD, the Application may be dismissed as abandoned.
5On August 21, 2012, the Tribunal received email correspondence from the applicant, in response to the Tribunal’s CAD, wherein the applicant indicated that he was still out of the country, but returning to Toronto that day to attempt a proper response to the instructions provided. The Tribunal also received email correspondence from the applicant dated August 22, 2012, wherein he indicated that he was awaiting a letter from his doctor to support his request for a “postponement” due to medical reasons.
REQUEST FOR AN ADJOURNMENT
6In correspondence received by the Tribunal by email on September 5, 2012, and addressed to the other parties, the applicant requested a “postponement” of six months “to address the outstanding issues of this case”, based on his doctor’s assessment. He explains that, over the past two years, he has experienced the deaths of several close family members, including two which occurred in distressing circumstances, which has demanded several difficult trips out of the country as they all resided in the U.S.A. and Jamaica. In support of his request, the applicant attached a letter from his psychologist.
7The psychologist’s letter states, in part, that the applicant has suffered several losses and misfortunes which have led to medical conditions that affect his ability to adequately perform the task of reviewing his performance with the respondent, State Farm Mutual Automobile Insurance Company (“State Farm”). The letter goes on to state that, due to the applicant’s “medical/psychological reactive experience”, he needs more time to address his position as an “employee” of State Farm. It is the psychologist’s opinion that, as they work through issues over the next three to six months, the applicant should again be sufficiently capable to address the requirements of “this assignment”, and be ready and prepared to work through the issues of the Tribunal.
8In response to the applicant’s adjournment request, the respondent, State Farm, submits that the Application ought to be dismissed as the medical evidence submitted by the Applicant is insufficient and does not justify the Applicant’s repeated failure to comply with the Tribunal’s directions and processes. The respondent refers to the Tribunal’s Interim Decision in Ouwroulis v. New Locomotion, 2009 HRTO 335, wherein the Tribunal stated as follows at paras. 6 and 7:
… 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.
9In requesting that the Application be dismissed as against it, State Farm submits that this matter has already been adjourned once, and that the continued and unjustified delay inevitably causes prejudice to the respondents.
DECISION
10The Tribunal’s Notice of Confirmation of Hearing indicates that requests for adjournments will be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments. This Practice Direction states that requests to reschedule must be made within 14 days of the date of the Notice of Confirmation of Hearing, and that the Tribunal discourages requests for adjournments outside this 14-day period, noting that requests for adjournment, particularly 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.
11It is unfortunate that the applicant made his adjournment request only four business days before the scheduled hearing, although he did advise the respondent and the Tribunal on August 22, 2012 that he was awaiting a letter from his doctor to support a request for an adjournment. The applicant has now filed a letter from his treating psychologist with the Tribunal.
12In my view, the psychologist’s letter is not as clear as it could have been. Nevertheless, I understand from the letter that the applicant has suffered circumstances leading to medical conditions affecting his ability to adequately prepare for the currently scheduled hearing dates. The opinion of the psychologist is that over the next three to six months, the applicant should be sufficiently capable to address this matter. I also note that the applicant is self-represented. In my view, the medical information before me is sufficient to justify an adjournment of the hearing dates for six months on the basis of exceptional circumstances existing. While I am prepared to allow the applicant’s request for an adjournment, I want to be clear that this proceeding cannot be delayed indefinitely. See Blakely v. Queen’s University, 2011 HRTO 891, at para. 7.
13The applicant’s request for an adjournment of the September 11 and 12, 2012 hearing dates is allowed, and State Farm’s request that this Application be dismissed, as against it, is dismissed.
14Within seven days of the date of this Interim Decision, the parties are directed to provide the Tribunal with their availability to attend a hearing in March 2013, and the Tribunal will schedule new hearing dates for as soon as possible after March 1, 2013.
15The applicant is directed to file his materials required pursuant to Rules 16 and 17 of the Tribunal’s Rules of Practice no later than 45 days prior to the first scheduled hearing date, and is reminded of the importance of complying with these requirements as set out in the Tribunal’s CAD dated August 15, 2012. If the applicant fails to comply with this requirement, his Application may be dismissed as abandoned.
Dated at Toronto, this 7th day of September, 2012.
“Signed by” __________________________________
Brian Eyolfson
Vice-chair