HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexis Balbontin

Applicant

-and-

Joyce Fruit Market Ltd. and Nick Stillo

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: April 11, 2012

Citation: 2012 HRTO 727

Indexed as: Balbontin v. Joyce Fruit Market Ltd.

appearances

Alexis Balbontin, Applicant ) Self-represented

Joyce Fruit Market Ltd. and Nick Stillo, ) Self-represented

Respondents )

INTRODUCTION

1The purpose of this Interim Decision is to provide written reasons for granting the applicant’s request to adjourn the hearing that commenced on April 11, 2012, and to provide directions to the applicant with respect to his disclosure obligations.

BACKGROUND

2On November 14, 2011, the Tribunal issued a Notice of Confirmation of Hearing to the parties which informed them that the hearing is on April 11, 2012 at 655 Bay Street, 14th Floor, Toronto, commencing at 9:30 AM. Neither party complied with their obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents that they intend to rely upon no later than 45 days prior to the hearing.

3On April 5, 2012, the Tribunal issued a Case Assessment Direction which alerted the parties to the fact that they had failed to comply with their obligations under Rules 16 and 17, and directed them to do so immediately. The respondents then filed a witness list, witness statements and documents, but the applicant did not.

4The hearing commenced as scheduled on April 11, 2012. The applicant appeared with another person, who indicated that he was not representing the applicant but was there as a support person. During my introduction, I asked the applicant several questions, but he did not appear to understand me and asked his support person to interpret for him from English to Spanish.

ADJOURNMENT REQUEST

5During his opening statement, the applicant requested an adjournment of the hearing on the basis that he was not sufficiently proficient in English to proceed, and needed the assistance of a professional interpreter. He stated that the Human Rights Legal Support Centre (“HRLSC”) had provided him with legal advice and assistance early in the process, but subsequently told him that he was capable of representing himself at the hearing and never told him that he would need a professional interpreter at the hearing. The applicant and his support person indicated that the support person could only provide basic interpretation to the applicant, and not at the level required for a legal hearing.

6The respondents opposed the applicant’s adjournment request on the basis that the applicant should have known well in advance of the hearing that he would need a professional interpreter, that he was otherwise unprepared for the hearing because he had not disclosed a witness list or any documents, and that the respondents would have to take another day off work if the hearing was adjourned.

7The Tribunal’s Practice Direction: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournment provides that requests to reschedule a hearing must be made within 14 days of receiving the Notice, and requests for adjournments thereafter will only be granted in “extraordinary circumstances”.

8In Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315, at paras. 37-38, the Ontario Divisional Court also made the following comments about an adjournment request by an unrepresented party:

(…) She was unrepresented by counsel at the hearing and not fully conversant with her rights….

In Toronto Dominion Bank v. Hylton the Ontario Court of Appeal ordered a new hearing based on the failure of a motion judge to properly protect the rights of an unrepresented litigant who had requested an adjournment. Epstein J.A. stated at para. 39:

Once again, the fact that a party is self-represented is a relevant factor. That is not to say that a self-represented party is entitled to a “pass”. However, as part of the court’s obligation to ensure that all litigants have a fair opportunity to advance their positions, the court must assist self-represented parties so they can present their cases to the best of their abilities. [Emphasis added.]

9It was not clear to me whether the applicant was unprepared for the hearing because he is disorganized or, as he implied, because the HRLSC refused to represent him and misled him into believing that he could represent himself without a professional interpreter. In any case, I am willing to give the applicant the benefit of the doubt because he is unrepresented and I am satisfied that he needs the services of a professional interpreter to have a fair hearing. In my view, these are “extraordinary circumstances” which justify adjourning and rescheduling the hearing.

10However, because of my concerns about the applicant’s total lack of preparation for the hearing and the unrecoverable costs incurred by the respondents in attending the hearing day, the next hearing dates shall be peremptory to the applicant, meaning that no further adjournment or rescheduling requests will be granted.

11Furthermore, the Tribunal directs the applicant to deliver to the respondents and file with the Tribunal a witness list, witness statements, and copies of documents that he intends to rely upon by no later than May 15, 2012. If the applicant does not intend to call any witnesses aside from himself and does not intend to rely on any documents, he shall deliver to the respondents and file with the Tribunal a letter confirming such by no later than May 15, 2012. If the applicant fails to follow this direction, the Tribunal shall dismiss his Application.

12Both parties confirmed that they will be available for a hearing on any dates in June and September 2012. The Tribunal’s Registrar will schedule two further hearing dates, and arrange for a certified English-Spanish interpreter to be present.

ORDER

13The Tribunal makes the following order and direction:

1. The applicant’s request to adjourn the hearing is granted.

2. By no later than May 15, 2012, the applicant shall deliver to the respondents and file with the Tribunal a witness list, witness statements, and copies of documents that he intends to rely upon, or a letter confirming that he does not intend to call any witnesses aside from himself and does not intend to rely on any documents.