Hayes v. Workplace Safety and Insurance Board, 2012 HRTO 1966

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daryle Hayes

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: October 17, 2012

Citation: 2012 HRTO 1966

Indexed as: Hayes v. Workplace Safety and Insurance Board

written submissions

Daryle Hayes, Applicant ) David Ingraham, Representative

1This Interim Decision deals with the applicant’s request to adjourn the hearing of this matter, scheduled for October 19, 2012. For the reasons that follow, the request is denied.

OVERVIEW

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability in the provision of goods, services or facilities.

3The applicant receives loss of earnings benefits from the respondent, the Workplace Safety and Insurance Board (“WSIB”). He alleges that the respondent discriminated against him on the basis of his disability because it refused to deposit his benefits directly into his bank account. The respondent denies the allegations of discrimination.

4The Tribunal held a summary hearing in this matter on October 17, 2011. In a Interim Decision, I dismissed the Application in part: 2011 HRTO 2152. I held that it could proceed on the following issue only:

Did the respondent’s failure to provide direct deposit services to the applicant amount to constructive discrimination or otherwise discriminate against him on the basis of disability because the applicant did not have the same access to benefits as injured workers whose mobility is not limited?

5A merits hearing is scheduled to take place on October 19, 2012.

6On October 12, 2012, he applicant’s representative wrote to the Tribunal and to the respondent requesting an adjournment of the hearing. He wrote:

Given that we are presently awaiting pertinent facts which was to be delivered this day Oct.12th, 2012. We are going to rely on this information, for the applicants case # 2010-0716-I . Within the last few hours, we have now been informed that these facts will not be available until Oct,19th, 2012. In fairness to both sides; It would reasonable to ask for adjournment, so we can both prepare for a fair informed hearing.

7It appears that the applicant subsequently received the information he sought. On October 15, 2012, his representative wrote to the Tribunal and to the respondent:

Please find attached the information which we have received from W.S.I.B. outlining those workers and groups who were in receipt of direct deposit prior to implementation of further direct deposit services as of Oct./2010

8On October 16, 2012, the applicant’s representative confirmed that, although he had now received the information he had been seeking, he maintained his request for an adjournment. In an email to the Tribunal and the respondent, he wrote:

Yes, we will still require an adjournment, as we have must have a witness present to authenticate it. We will not have enough time to summons the appropriate witness, transportation to Ottawa from W.S.I.B. Toronto office.

If this matter could be adjourned into the new year or when all parties schedule permits. This would greatly be appreciated.

9The respondent has not responded to the above correspondence from the applicant’s representative.

ANALYSIS

10The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations encourages parties who wish to reschedule a hearing to make this request within 14 days of being advised of the date of the hearing. The Direction provides:

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 adjournments, even when all parties consent.

11I am not satisfied that extraordinary circumstances exist or that an adjournment is warranted.

12It appears from the applicant’s representative’s written submissions that the adjournment request centres around information concerning the availability of direct deposit services to employees and others. It is not at all clear to me that this information is material to the sole outstanding issue raised in this Application.

13As I indicated in my Decision, dated November 30, 2011:

[T]he fact that the respondent’s employees are treated differently from benefit recipients is not a basis for a finding of discrimination. There, the difference in treatment is based on the status of the individual (employee or benefit-recipient) and not on the basis of a Code-related ground. There is no basis to conclude that the applicant’s disability was a factor in the respondent’s decision to differentiate between him, a recipient of benefits, and its employees. For the above reasons, I find that these arguments have no reasonable prospect of success.

14Further, in an Interim Decision dated June 27, 2012, I denied the applicant’s request for production of “all statistics concerning those individuals who were in receipt of direct deposits prior to October 2012”: 2012 HRTO 1255. I wrote:

In light of my earlier Interim Decision and the portions of the Application that it dismissed, it is not clear to me that statistical information about direct deposit services offered to other individuals is arguably relevant to the remaining issue in the Application. Rather, the thrust of the remaining issue is whether, because the applicant states that his disability prevented him from attending at a bank and effectively accessing benefits paid to him by the respondent, there is discrimination under the Code. I am not satisfied that any information related to others’ use of direct deposit services is arguably relevant to this issue.

DECISION

15I am not satisfied that the information in question is material to the remaining issue in the Application. For this reason, the request for an adjournment is denied and the hearing will proceed as scheduled on October 19, 2012.