Appelton v. Law School Admission Council, 2012 HRTO 2370

Human Rights Tribunal of Ontario

B E T W E E N:

David Appelton Applicant

-and-

Law School Admission Council Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: December 19, 2012 Citation: 2012 HRTO 2370 Indexed as: Appelton v. Law School Admission Council

WRITTEN SUBMISSIONS

David Appelton, Applicant Susan Metzler, Counsel

Law School Admission Council, Respondent Joan Van Tol, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to services because of disability. The respondent administers the Law School Admission Test (the "LSAT"). The hearing in this matter is scheduled for January 14, 15 and 16, 2013.

2By letter dated November 29, 2012, the applicant notified the respondent and the Tribunal that he will be requesting leave to amend the Application to add a further allegation of discrimination relating to the respondent's practice of placing a notation on a LSAT score that the test writer had special needs for which they were accommodated. The applicant did not file a Request for Order During Proceedings ("RFOP") to make this request.

3On November 30, 2012, the respondent produced the documents it intended to rely upon at the hearing and the will-say statements of its witnesses, as required under Rules 16 and 17 of the Tribunal's Rules of Procedure. The documents were provided electronically in a series of e-mail messages. The applicant did not provide his pre-hearing disclosure as required under these Rules.

4On December 17, 2012, the applicant filed a RFOP requesting further production from the respondent. By letter December 18, 2012, the applicant requested an adjournment of the hearing, a motion date to argue his production request, and a response from the Tribunal to his request to amend the Application. This Interim Decision addresses the outstanding preliminary issues raised by the applicant and the applicant's failure to provide his pre-hearing disclosure.

CASE MANAGEMENT

5The applicant has not complied with his obligations under Rules 16 and 17 to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents he intends to rely upon at the hearing, no later than 45 days prior to the hearing.

6The Notice of Confirmation of Hearing summarized the requirements as follows:

Unless otherwise directed by the HRTO, not later than November 30, 2012 you must deliver to every other party and file with the HRTO:

• a list of all documents you intend to rely on at the hearing;
• a copy of each document on that list for the HRTO;
• a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;
• a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;
• a statement summarizing the expected evidence of each witness;
• where you intend to rely on the evidence of a proposed expert witness, a copy of the expert's written report or a full summary of the expert's proposed evidence and the expert's curriculum vitae;
• the Statement of Delivery of the Rule 16.2 list and documents on the other parties.

7In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal explained, at para. 7:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal's process. It ensures that each party fully understands the other side's case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

8The applicant must comply with his obligations as set out in Rules 16 and 17, summarized in paragraph 6 above, no later than December 28, 2012.

9Rule 1.19.1 of the Tribunal's Rules of Procedure provides that a party must file with the Tribunal two hard copies, one of which must be unbound, of any document greater than 20 pages. The disclosure provided by the respondent on November 30, 2012 was in excess of 20 pages. The respondent is directed to file with the Tribunal two hard copies of its documentary disclosure by December 28, 2012.

10The respondent must respond to the applicant's request to amend the application and to the applicant's request for further production by December 28, 2012. The Tribunal will rule on the RFOPs filed by the applicant upon receipt of the respondent's response to these requests.

ADJOURNMENT REQUEST

11The Tribunal's Practice Direction on Scheduling states the following regarding requests for adjournments:

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.

12In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

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.

13There are no exceptional circumstances that would permit the Tribunal to grant the adjournment request. The applicant's counsel has been counsel of record since June 5, 2012. The hearing dates were set on June 19, 2012. In these circumstances, the adjournment request is denied and the hearing will commence on January 14, 2013.

14In summary, the parties are directed to comply with the following directions:

a. The applicant must comply with his pre-hearing disclosure obligations under Rules 16 and 17 of the Tribunal's Rules of Procedure by December 28, 2012.

b. The respondent must file with the Tribunal two copies of its documentary disclosure provided electronically on November 30, 2012, one of which is unbound, by December 28, 2012.

c. The respondent must respond to the applicant's request for further production and to the applicant's request to amend the Application by December 28, 2012. The Tribunal will rule on these requests upon receipt of these responses.

15The hearing will commence on January 14, 2013.

16The parties are advised of the Tribunal's mediation/adjudication process set out in Rule 15A of the Tribunal's Rules of Procedure. The Tribunal will offer this process at the commencement of the hearing on January 14, 2013. If both parties agree, the hearing will commence with mediation. If the parties do not consent to mediation/adjudication, the hearing on the merits will commence on January 14, 2013.