HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rohma Chaudhary
Applicant
-and-
University of Ottawa and Terrence Kulka
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Chaudhary v. University of Ottawa
WRITTEN SUBMISSIONS
Rohma Chaudhary, Applicant
Self-represented
University of Ottawa and Terrence Kulka, Respondents
Julie Sicotte, Counsel
Introduction
1This is 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”), alleging discrimination with respect to goods, services and facilities because of disability.
2This Application is currently scheduled for hearing on December 3 and 4, 2012 in Ottawa. This Interim Decision addresses the applicant’s request to adjourn the scheduled hearing dates, based on medical reasons.
BACKGROUND
3The Application was filed on December 16, 2010. The Application proceeded to mediation but it was not resolved. Following mediation, the Tribunal issued a Notice of Confirmation of Hearing scheduling a hearing for October 25 and 26, 2012. On consent of the respondents, the applicant’s then counsel made a timely request for alternative dates, and on April 4, 2012, the Tribunal issued a Notice of Confirmation of Hearing rescheduling the Application for hearing on December 3 and 4, 2012.
4The Notice provided deadlines including for the disclosure of arguably relevant documents (Rule 16.1) and disclosure and filing of documents to be relied on, witness lists and summary of each witness’ evidence (Rules 16.2, 16.3, 17.1 and 17.2). There have been a number of extensions requested and granted for the Rule 16.1 obligations. In particular:
On April 23, 2012, the respondents sought an extension on behalf of the parties for the disclosure obligations under Rule 16.1. On April 26, 2012, the Tribunal granted an extension to June 29, 2012.
On June 26, 2012, on consent of the respondents, counsel for the applicant sought a further extension based on medical grounds. On June 26, 2012, the Tribunal granted the extension to July 31, 2012. Following this extension, the respondents emailed the Tribunal raising a concern that the applicant had been in court on June 27, 2012 on a different matter while asserting that a medical condition prevented her from being able to complete the disclosure in time.
On July 24, 2012, the applicant’s counsel on record wrote to the Tribunal advising that he no longer acted for the applicant and that as her new counsel was on holiday and would not return until mid-August an extension for exchange of disclosure was being sought until September 15, 2012. The respondents objected and sought dismissal of the Application, claiming that the applicant was making a “mockery” of the Tribunal process showing a total lack of interest in moving her case forward. The Tribunal granted the request but only until August 31, 2012.
On August 21, 2012, the applicant’s new counsel sought a further extension to September 28, 2012, on the basis of “exceptional circumstances” indicating, among other things, that since the July 24th request, her client had had further medical issues which required a short period of hospitalization and that the applicant continued to have some ongoing difficulty and that there would be no prejudice to the opposing party noting that the respondents had yet to provide their Rule 16.1 disclosure. On August 24, 2012, the Tribunal granted an extension to September 14, 2012.
5Since the last extension, the applicant has filed documents on two occasions: on September 14, 2012, the applicant’s counsel filed two books of documents with the Tribunal and on October 2, 2012, the applicant’s counsel filed another copy of these two document books. I presume that these are the documents the applicant intends to rely on at the hearing.
6On October 19, 2012, the applicant’s counsel of record withdrew. On the same date, the respondent filed their documents, witness list and summaries of witness’ evidence.
7The applicant has not filed a witness list nor summaries of witness’ evidence.
8On November 26, 2012, the applicant sought an adjournment of the hearing dates. A report of a medical professional is attached to the request. The report states that the professional has treated the applicant over the last eight years and that the applicant is unable to participate or proceed with legal issues and that she will require four months to recover. The professional requests that legal proceedings be delayed until sometime after March 2013.
9On November 28, 2012, the respondents emailed the Tribunal opposing the request. The respondents state that the applicant has systematically delayed the Application by requesting a series of adjournments sometimes alleging medical reasons and sometimes as a result of four different lawyers being retained to represent her in the proceeding. The respondents rely on the above history, the applicant not having filed her documents or witness statements and the “extremely limited” medical information” including the absence of an explanation of why the applicant requires four months and whether there is any certainty that in March 2013, she will be in a position to proceed. The respondents further state that they have been prejudiced by having at all times complied with the Rules, having prepared for the hearing and having made witnesses available. As a result, the respondents request that the Tribunal dismiss the Application on the basis that the applicant has shown a total lack of interest in moving her case along expeditiously and has failed to file any documentation with the Tribunal and the respondent by the October 19, 2012 deadline. The respondent also makes a number of alternative submissions including that the hearing proceed as scheduled or the Tribunal order further medical information be produced or that if the adjournment is granted the date be made peremptory on all parties and the applicant be barred from providing any documentary evidence or calling any witnesses.
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 her adjournment request only one week before the scheduled hearing, although there is some indication on the record that the applicant has had health related issues in the recent months impacting on her ability to participate in this process.
12In my view, the professional’s letter is not as clear and fulsome as it could have been. Nevertheless, the letter is authored by a professional who has treated the applicant for eight years and does clearly indicate that the applicant is unable to participate or proceed with legal issues. While the respondent opposes the adjournment, they have not suggested that the letter is illegitimate, only that it is limited in the information provided. I do not find it would be fair, just nor expeditious at this stage to require the applicant to produce additional information given the nature of the objection made by the respondents and the proximity of the hearing dates.
13I have considered the respondents’ claim that the applicant has “systematically delayed” this Application. However, I do not find this characterization appropriate in the circumstances. Apart from a timely request to adjourn the first set of hearing dates, the history includes various extensions, two of which were on consent. While I acknowledge two requests were opposed, the Tribunal considered the respondent’s objections and granted the extensions at the time and I do not find it appropriate to revisit those determinations.
14Based on the submissions of the respondent to the adjournment request I am troubled that they do not appear to have received the documentary disclosure of the applicant given that, as noted above, the applicant’s then counsel has twice filed her documents at the Tribunal. I note the Tribunal provided the applicant with an electronic copy of these documents filed by her counsel by email on November 5, 2012. I find it appropriate to make directions in this regard including in respect of the requirement that the applicant either file witness statements and/or confirm that the Application contains a summary of the applicant’s intended evidence and that she does not intend to call any other witnesses.
15Finally, I am concerned about the prejudice to the respondents having prepared for the hearing and made arrangements for witnesses to attend. However, in my view, this is one of those exceptional circumstances that justifies an adjournment of the hearing dates. In this regard, I would emphasis that the proceeding cannot be delayed indefinitely. See Blakely v. Queen’s University, 2011 HRTO 891, at para. 7.
16The applicant’s request for an adjournment of the December 3 and 4, 2012 hearing dates is granted and the respondents’ various requests are denied, although I do make certain directions below to address some of the respondents’ concerns including the scheduling of dates.
17While the medical report does not specifically address whether the applicant is unable to participate in prehearing disclosure obligations, subject to receiving further medical information, I presume the applicant can forward a copy of material already filed with the Tribunal to the respondents but provide a later deadline for disclosure not yet filed.
18The Tribunal directs:
i. The hearing dates of December 3 and 4, 2012 are cancelled. Subject to the parties confirming their availability by December 7, 2012 and paragraph ii below, the hearing is rescheduled to April 16 and 17, 2013.
ii. The applicant shall provide an update on her ability to participate in the hearing on the re-scheduled hearing dates on March 4, 2013, with supporting medical documentation, including addressing whether or not she can participate in pre-hearing disclosure obligations as of the date of the medical provided.
iii. The applicant shall provide the respondents with a copy of the documents that were filed with the Tribunal within seven days of the date of this Interim Decision if she has not done so already, unless she provides medical information in support of her inability to do so and the Tribunal revises this direction.
iv. Subject to paragraph ii above and any future direction of the Tribunal, the applicant shall file her witness list and summaries of each witness’ evidence by March 19, 2013 with a copy to the respondents or confirm by that date that she does not intend to call any witnesses and provide a summary of her anticipated testimony should it expand beyond the scope of what is already detailed in her Application.
v. If the applicant fails to respond to these directions her Application may be dismissed as abandoned.
Dated at Toronto, this 30th day of November, 2012.
“signed by”
Kathleen Martin
Vice-chair