R.J. v. North Bay Canoe Club, 2012 HRTO 594

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.J. by her next friend T.J.

Applicant

-and-

North Bay Canoe Club and Mark Robinson

Respondents

Interim DECisION

Adjudicator: Mark Hart

Date: March 22, 2012

Citation: 2012 HRTO 594

Indexed as : R.J. v. North Bay Canoe Club

1This Interim Decision addresses the respondents’ request for an adjournment of the hearing scheduled for April 3 and 4, 2012, and other case management matters.

2The respondents request an adjournment of the hearing based upon the unavailability of two witnesses. The first witness, Louis-Phillipe Samson, is a coach at the respondent Club who has direct evidence regarding several significant factual matters at issue between the parties. He is currently in Quebec attending the University of Laval School of Law and is involved in preparing for and writing examinations. He is not available to testify in this proceeding until April 16, 2012.

3The second witness is Joel Hazzan, who is a provincial coach for the Ontario Canoe Sprint Racing Affiliation and is stated to be an expert in the Long Term Athlete Development (“LTAD”) principles which are relied upon by the respondents as part of their response to the issues raised in this proceeding. He is currently in Florida conducting training with the Ontario High Performance Training Camp and will not be able to appear as a witness until after he returns to Canada on April 17, 2012.

4In my view, the unavailability of these two respondent witnesses does not justify the adjournment of the hearing dates scheduled for this matter. While lists of witnesses and witness statements have not yet been filed by the parties, based on the Application filed, it appears that there may be six witnesses called by the applicant. In addition, there will be at least one respondent witness, namely the personal respondent, who will need to testify in response to the allegations raised, and there may be other relevant witnesses whom the respondents propose to call. With the exception of Mr. Samson and Mr. Hazzan, no party has raised an issue about the availability of any of these other witnesses to testify on the hearing dates as currently scheduled.

5In my view, there is no reason why the hearing cannot proceed on April 3 and 4, 2012, at least to hear all of the evidence from the witnesses to be called by the applicant and all respondent witnesses who are available at that time to testify. With regard to Mr. Samson, I agree with the respondents that he is likely to be a significant factual witness in this proceeding, but arrangements can be made to hear his evidence at a later time.

6With regard to Mr. Hazzan, I am not yet convinced as to the relevance or necessity for his evidence in this proceeding, but that is a matter that can be addressed at the hearing as currently scheduled. If I am satisfied that Mr. Hazzan’s evidence is relevant and necessary to determine the matters at issue in this proceeding, then suitable arrangements can be made to hear his evidence. Indeed, as Mr. Hazzan does not appear to have any direct evidence regarding the events at issue and is intended to be called on in relation to the LTAD principles, it may be that his evidence could be heard by teleconference from Florida during the course of the scheduled hearing dates. That also is a matter that can be addressed at the hearing as currently scheduled. In this regard, the respondents are directed to come to the hearing with a telephone number where Mr. Hazzan can be reached in Florida and times during the hearing day on April 4, 2012, when he would be available to give his evidence by teleconference, in the event that I determine that his evidence is relevant and necessary and that hearing his evidence in this manner is appropriate.

7Accordingly, the hearing will proceed as scheduled in North Bay on April 3 and 4, 2012. In relation to further hearing dates to complete this matter, the respondents have proposed April 17, 18 or 19, 2012. Applicant counsel is not available on April 18 or 19, 2012, and I am not available on April 17, 18 or 19, 2012. It appears from the material filed that Mr. Samson is available to testify in this proceeding on April 16, 2012. I am available to continue the hearing on that date or on April 23 or 24, 2012. By March 29, 2012, the parties shall advise as to all of their availability to continue the hearing on April 16, 23 or 24, 2012. If a party is not available on one or more of those dates, the party shall provide a specific explanation as to why they are not available.

8I also note that the applicant has filed a Notice of Constitutional Issue in this matter. The Tribunal does not have confirmation that this Notice was served upon the Ministry of the Attorney General. The confirmations of service as currently filed only show that this Notice was served on counsel for the respondents. The applicant forthwith shall provide confirmation of service on the Ministry of the Attorney General. Further, as the applicant is questioning the constitutional validity or applicability of s. 20(3) of the Code and claiming a remedy under s. 24(1) of the Charter, the applicant also is required to give notice to the Attorney General of Canada pursuant to s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The applicant is directed to provide the required notice to the Attorney General of Canada forthwith and file confirmation of service with the Tribunal.

9Subject to any submissions as may be made by the respective Attorneys General, it is my intent to hear argument regarding the constitutional issues raised at the conclusion of the evidence and as part of the parties’ final submissions.

10I note that the time for compliance with Rules 16.2, 16.3 and 17 of the Tribunal’s Rules of Procedure has been set for March 27, 2012. With regard to Rule 17, I am directing the parties to serve and file as complete and detailed statements of evidence for their witnesses as is possible in the circumstances.

11I also note that on March 20, 2012, applicant’s counsel electronically filed a zip file containing hundreds of pages of what are described as “race documents”. If it is the intention of the applicant to rely upon any of this material for the purpose of the hearing, the applicant is directed to serve and file the relevant material in a bound volume with numbered pages and the applicant’s witness statements shall address any such material and its relevance to the matters at issue in this proceeding.