Armstrong v. Ontario (Attorney General), 2013 HRTO 1107

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrea Armstrong Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Minister of the Attorney General – Constitutional Law Branch, Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community and Social Services – Director, Ontario Disability Support Program and the Social Benefits Tribunal Respondents

INTERIM DECISION

Adjudicator: Ruth Carey Date: June 21, 2013 Citation: 2013 HRTO 1107 Indexed as: Armstrong v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

Andrea Armstrong, Applicant Self-represented

Her Majesty the Queen in Right of Ontario, as represented by the Minister of the Attorney General – Constitutional Law Branch, Respondent Michelle Schrieder, Counsel

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community and Social Services – Director, Ontario Disability Support Program and the Social Benefits Tribunal, Respondent Connie Vernon, Counsel

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 goods, services and facilities, and contracts because of disability and reprisal.

2On March 15, 2013, the Tribunal issued a Case Assessment Direction directing that a summary hearing be held. On May 23, 2013, the Registrar issued a Notice of Summary Hearing scheduling the summary hearing for June 24, 2013.

3On June 11, 2013, the Tribunal received a request from the applicant that the summary hearing be adjourned so she can obtain counsel and finish her administrative law course. Her letter also indicated that she intended to record the summary hearing.

4The respondents consent to the adjournment being granted, oppose the recording of the hearing, and request that the summary hearing be conducted in writing.

5The Notice of Summary Hearing specifically states that requests for rescheduling are to be made within 14 days of issuance of the Notice. Requests for adjournment after the 14-day time limit are dealt with in accordance with the Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments” available on the Tribunal’s web site. It says in part:

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.

6The purpose of the Tribunal’s practice with respect to adjournments was explained in Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, as follows:

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.

7In accordance with the Practice Direction, the respondents’ consent to the adjournment is not the determinative factor in considering whether or not to grant an adjournment. The issue is whether or not exceptional circumstances exist. The applicant’s correspondence does not cite any exceptional circumstances for adjourning the hearing. The Application was filed with the Tribunal on December 17, 2012, so the applicant has had more than six months to retain counsel. Difficulties finding representation and a desire to finish an administrative law course do not constitute exceptional circumstances. Therefore, the request to adjourn the summary hearing scheduled for June 24, 2013 is denied.

8With respect to the applicant’s intention to record the hearing, the respondents state they oppose that request because the applicant’s correspondence indicates she intends to publish the recording or use it in other proceedings.

9The Tribunal’s “Practice Direction on Recording Hearings” says:

If a party wishes to record a hearing to supplement his or her notes, he or she must get the permission of the panel and provide a copy of any recording or transcription to the other parties and the HRTO (on a USB device or CD). Such recordings or transcriptions do not form part of the HRTO's record of proceedings, including the record filed in court in respect of any application for judicial review. The recording or transcription may not be publicized or used for any purpose other than in the proceeding before the Tribunal.

10If the applicant undertakes at the beginning of the hearing to provide a copy of any recording to the parties and the Tribunal, and undertakes not to publish it or use it for any purpose other than in proceedings with respect to this Application, then she will be permitted to record the hearing.

11With respect to the request of the respondents that the summary hearing proceed by way of written submissions, section 43(2)1 of the Code says: “An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.” As one possible result of a summary hearing is that an Application may be finally disposed of, the parties are entitled to an oral hearing and the respondents’ request that the summary hearing proceed by way of written submissions is denied.

ORDER

12The request to adjourn the summary hearing is denied. The hearing shall proceed as an oral hearing on June 24, 2013, as scheduled.

13The applicant shall be permitted to record the hearing if at the commencement of the hearing she undertakes to: provide copies of any recording to the respondents and the Tribunal; and refrain from publishing the recording or using it for any purpose other than in proceedings with respect to this Application.