Cook v. Stratford (City), 2012 HRTO 1924

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Cook

Applicant

-and-

City of Stratford, Social Services Department, Housing Division

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: October 10, 2012

Citation: 2012 HRTO 1924

Indexed as: Cook v. Stratford (City)

WRITTEN SUBMISSIONS

Christopher Cook, Applicant

Self-represented

City of Stratford, Respondent

Jennifer Heath, Counsel

Introduction

1This is Interim Decision deals with the respondent’s request for an adjournment for the two-day hearing of an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant, who lives alone, alleges that the respondent’s insistence that he move from a subsidized two-bedroom unit to a one-bedroom unit is discriminatory because of his needs arising from his disability.

BACKGROUND

2The Application was filed with the Tribunal on December 13, 2011.

3On April 5, 2012, the Tribunal sent the parties a Notice of Confirmation of Hearing. That Notice scheduled the hearing for November 26 and 27, 2012. The Notice provided that requests for adjournment would be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments, available on the HRTO’s website.

4By letter dated September 27, 2012, the respondent’s counsel informed the applicant that she was newly retained and asked if he would consent to an adjournment of the hearing because she is unavailable on those dates. The applicant subsequently wrote to the Tribunal, attaching a copy of that letter from the respondent’s counsel to him. In his correspondence to the Tribunal, the applicant states that he is strongly opposed to the adjournment request and believes any adjournment would be “extremely prejudicial”.

5On October 9, 2012, the respondent’s counsel emailed the Tribunal to confirm that she had been retained recently and was unavailable to attend the November 27, 2012 date because she has a “long-standing trial date that cannot be adjourned”. She confirmed the respondent’s request for an adjournment of the hearing, at least of the second day of hearing.

REASONS FOR DENYING THE REQUEST TO ADJOURN

6The Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states, in part:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a 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.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax.

7In addition, on the specific issue of unavailability of counsel, in Vallentyne v. Royal Canadian Legion, 2009 HRTO 534, at paragraph 6, the Tribunal held that the unavailability of counsel was not an extraordinary circumstance justifying an adjournment:

The decision of a party to retain counsel after a hearing is scheduled is not the type of circumstance that would justify a request for an adjournment. Absent exceptional circumstances, a party must find counsel who is available on the date already scheduled…

8In a subsequent Interim Decision involving the same case, Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, the Tribunal reinforced its decision to deny the adjournment request and stated at paragraphs 4 and 5:

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

When a party makes a decision to retain counsel after the notice of hearing has been issued, their “choice” of counsel is limited by the date previously scheduled….

9I do not find the unavailability of the respondent’s counsel to be an exceptional circumstance. Contrary to the Practice Direction, the request for an adjournment was not made in a timely manner, and it is clear that the conflict for the respondent’s counsel existed at the time she was retained. Consistent with the Tribunal’s decisions with respect to similar requests (see for example Smith v. Far Investment Inc., 2012 HRTO 326), I deny the respondent’s request to adjourn.

10The parties are directed to attend the hearing on the dates already specified by the Tribunal and to be prepared to call evidence and make submissions.