LaFontaine v. Ontario (Health and Long-Term Care), 2012 HRTO 421

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sylvia LaFontaine

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care and Cecilia Chen-See

Respondents

DECISION

Adjudicator: Mary Truemner

Date: February 28, 2012

Citation: 2012 HRTO 421

Indexed as: LaFontaine v. Ontario (Health and Long-Term Care)

APPEARANCES BY

Sylvia LaFountaine, Applicant ) No one appearing

Her Majesty the Queen in Right of Ontario as ) represented by the Ministry of Health and Long- ) Roslyn Baichoo, Counsel Term Care and Cecilia Chen-See, Respondents )

INTRODUCTION

1This Decision provides reasons for the decision issued on February 23, 2012, denying the applicant’s request to adjourn the hearing scheduled to begin on February 27, 2012. This Decision also dismisses the Application in light of the applicant’s failure to appear on February 27, 2012.

BACKGROUND WITH RESPECT TO THE ADJOURNMENT REQUEST

2The applicant was represented by counsel when she filed her Application on October 26, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the ground of disability. Her counsel also filed the applicant’s Reply on January 14, 2011, to dispute portions of the respondents’ Response. On April 21, 2011, counsel wrote to the Tribunal to advise that his firm no longer acts for the applicant.

3On July 22, 2011, the Tribunal issued the Notice of Confirmation of Hearing which indicated the dates scheduled for the hearing: February 27-29, 2012. The Notice was sent to the applicant directly given that she was unrepresented. By the due date of January 13, 2012, the unrepresented applicant and counsel for the respondents filed their documents upon which they intended to rely at the hearing, as well as summaries of what their witnesses would say.

4On February 22, 2012, five days prior to the commencement of the hearing, the applicant wrote to the Tribunal to request an adjournment. She stated that she had understood from her “representative” that the matter would settle, and there would be no need to proceed, but she stated that she has come to realize that the matter is not settling. She wrote:

I am doing my best to find someone who is going to represent me because I do not feel I can proceed on my own. Also I think it is important for the Tribunal to hear testimony from me to fully understand this case.

I realize now that I was wrong for thinking that this matter was going to settle, I just hope that this mistake doesn't cost me the right to a full and fair hearing.

5The respondents strongly opposed the adjournment request, taking the position that they were prepared to begin the hearing on February 27, 2012.

TELECONFERENCE HEARING

6On February 24, 2012, a teleconference hearing was held to address the applicant’s request. She clarified that she needed an adjournment to arrange to bring four of her proposed witnesses to the hearing and to retain a lawyer. She confirmed that the reason that she was not prepared with witnesses and representation is because she thought her Application would settle prior to the hearing. She stated that she never intended to proceed to a hearing, and that she had filed her Application in order to settle it.

7The applicant explained that she had retained counsel recently (the same counsel who had represented her in earlier stages) to represent her, but only in negotiations to settle the Application, not to represent her in the Tribunal process. She explained that she realizes now that she should not have understood that the Application was settling on the basis of her counsel’s comments about the respondents being interested in knowing what her settlement offer was. The applicant explained that her counsel never told her that the parties were even close to agreeing on terms, let alone agreed upon settlement terms; nevertheless, she did believe that her Application would settle, and that was the reason for which she did not prepare for the hearing. She confirmed that she was self-represented for the purposes of the hearing.

8The applicant also stated during the teleconference hearing that she did not receive the Notice of Confrimation of Hearing issued on July 22, 2011, which indicated the February 2012 dates. She explained that the Tribunal sent it to her old address, although she admitted that she did not provide the Tribunal with notice of any change of address. She explained that she confirmed by telephone the hearing dates with staff at the Tribunal sometime in December 2011. The Tribunal’s records do not indicate the date of such a telephone call, but do show that the Notice was sent to her again by e-mail on January 5, 2012. The applicant confirms receiving the Notice by e-mail, which enabled her to comply with Rules 16 and 17 by filing her hearing documents and witness statements on time and in advance of the hearing. The applicant explained that she had obtained summonses for her witnesses from the Tribunal, but did not deliver them to the witnesses because she thought the matter was settling, and has since misplaced the summonses.

9The applicant provided details with respect to her search for representation. She confirmed that she herself is a lawyer, but she wants help. She identified a lawyer who does personal injury law on contingency fees and the Human Rights Legal Support Centre as possible representatives. She mentioned making appointments with them, but had not yet met with them about retaining either for the hearing, and was unable to indicate that either would agree to be retained.

10The applicant’s request to adjourn the proceedings scheduled for February 27-29, 2012 was denied in a decision issued February 24, 2012 (2012 HRTO 396), which stated that reasons would follow. The following section of this Decision provides those reasons.

REASONS FOR DENYING THE ADJOURNMENT

11The Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments” reads as follows:

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.

The HRTO typically will not adjourn a hearing date because the parties wish to “engage in settlement discussions” or are “close to a deal.” The HRTO encourages mediation and settlements, and will assist the parties in this regard. Where parties believe they may be able to resolve a matter shortly before the scheduled hearing, they should advise the Registrar and the HRTO may make a mediator and mediation room available. The parties may also request mediation/adjudication in accordance with Rule 15.2.1 (and Rule 8.5 for s. 53(3) and 53(5) applications). However, the HRTO discourages the cancellation or adjournment of hearing dates so that the parties can explore settlement.

12In Vallentyne v. Royal Canadian Legion, 2009 HRTO 534 (“Vallentyne”), at para. 6 the Tribunal held:

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.

13The Tribunal’s Practice Directions and caselaw are clear that adjournments will be granted only in exceptional circumstances. The mere hope of retaining new counsel or assuming a case is settling so that no efforts are made to arrange for the attendance of witnesses are not such circumstances. (See Pilkey v. Guild Automotive Restorations Inc., 2012 HRTO 209, and Hawco v. Peel Express, 2011 HRTO 242). The applicant has known since at least the beginning of January that the hearing has been scheduled to begin on February 27, 2012. It is the responsibility of the applicant to retain counsel available on the scheduled hearing dates and to ensure that her witnesses are ready. Her excuse for not doing so – she thought that the matter would settle – is not sufficient to meet the high standard for adjournment requests set by the Tribunal’s Practice Direction and its jurisprudence.

14Although the applicant did not receive the Notice sent to her in July 2011, this was because she had failed to notify the Tribunal of her change of address as required by Rule 1.13 of the Tribunal’s Rules of Procedure. She cannot rely on the delay of receiving notice as a reason for an adjournment given that the delay was caused by her, given that she still had ample time (almost two months) to retain counsel and to arrange for her witnesses to attend the hearing, and given that her request for an adjournment on the eve of the hearing, almost two months after she discovered what the dates were, points to her hope that the matter would settle as the reason for her delayed preparation for the hearing. (See Paris v. The Elizabeth Fry Society of Ottawa, 2012 HRTO 164, Fucile v. The College of Physicians and Surgeons of Ontario, 2011 HRTO 1787, and Rastel v. Dryden Police Services Board, 2011 HRTO 1974). As stated above, making the mistake of hoping the Application would settle prior to the hearing does not justify an adjournment in the event that a settlement is not reached, particularly in the circumstances of the applicant’s counsel never having told the applicant that the parties were even close to agreeing upon specific settlement terms, let alone agreed upon them.

HEARING OF THE APPLICATION

15Upon receiving the Tribunal’s decision to deny her request for an adjournment, the applicant e-mailed the respondents and the Tribunal to state that she would not be in attendance at the hearing on February 27, 2012. She stated that she has “no confidence in this process now or the ability of my having a fair hearing. Through an honest mistake, I have been crippled to proceed with the best evidence possible to explain what I believe really happened during my time with [the corporate respondent].”

16The e-mail did not indicate that the applicant wished to withdraw the Application or that she wanted to abandon it, and counsel for the respondents attended at the hearing on February 27, 2012.

17The applicant did not appear at the commencement of the hearing and the Tribunal stood the matter down for half an hour. At 10:00 a.m., the applicant was still absent, and counsel for the respondents requested that the Application be dismissed on the basis that the applicant had abandoned it.

DECISION

18It is clear to me that the applicant does not wish to proceed with the Application. She wrote to the Tribunal one business day prior to the commencement of the hearing to indicate that she would not attend the hearing. On the day of the hearing, she was absent with no one appearing on her behalf. I find that the applicant has abandoned the Application and the Application is dismissed.