M.D. v. Windsor-Essex Children’s Aid Society and Rebecca Ross, 2013 HRTO 1247

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.D.

Applicant

-and-

Windsor-Essex Children’s Aid Society and Rebecca Ross

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: July 17, 2013 Citation: 2013 HRTO 1247 Indexed as: M.D. v. Windsor-Essex Children’s Aid Society

WRITTEN SUBMISSIONS

M.D., Applicant Self-represented

Windsor-Essex Children’s Aid Society and Rebecca Ross, Respondents Keri Wilson, Counsel

Introduction

1The applicant filed an Application alleging that the respondent discriminated against her because of race, colour, ancestry, place of origin, disability, family status, and marital status. She also alleges that the respondent reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, she alleges that the apprehension of her children by the respondents and their subsequent dealings with her were discriminatory and/or amounted to a reprisal.

2By Case Assessment Direction (“CAD”) dated April 16, 2013, the Tribunal, on its own initiative, directed that a summary hearing be held to address the following three issues: (1) whether the decision of the Child and Family Services Review Board (“CFSRB”) dated September 13, 2011 has appropriately dealt with all or part of the Application, (2) whether there is a reasonable prospect that the applicant will be able to prove a link between the respondent’s alleged actions and the grounds alleged in the Application, and (3) whether there is a reasonable prospect that the applicant will be able to establish that the respondent intended to reprise against her by undertaking the actions alleged in the Application.

3On May 29, 2013, the Tribunal sent the parties a Notice of Summary Hearing (“Notice”), confirming that the matter has been scheduled to be heard on August 12, 2013. The Notice also advised the parties that if they could not attend the summary hearing on the date scheduled, they were required to act within 14 days of the date of the Notice.

4On July 1, 2013, more than 14 days after the date of the Notice, the applicant sent e-mail correspondence to the Tribunal requesting an adjournment of the summary hearing. She stated that she requested access to some personal files but she is facing resistance to obtaining vital personal information from the respondent and an unnamed hospital. She also stated that she is self-represented and needs the adjournment for this reason as well. The respondents oppose the applicant’s request.

5The Practice Direction on requests to adjourn or reschedule 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.

6In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4, the Tribunal explained why 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.

7I note that the applicant has provided no timeframe for her adjournment request. The Tribunal generally will not adjourn Applications indefinitely. In any event, I am not convinced that the reasons provided by the applicant amount to exceptional circumstances that justify the adjournment of the summary hearing.

8At the hearing, the applicant is not expected to provide any evidence. Therefore, she will not be expected to provide any details as to the contents of any personal files held by the respondent or any third party to address any of the three issues identified in the CAD.

9The first issue identified in the CAD, whether the CFSRB’s decision has appropriately dealt with the substance of the Application, is a legal issue. No evidence is required to address this issue other than the CFSRB decision and the settlement entered into between the parties which led to the application before the CFSRB.

10The applicant is also not expected to advance any evidence to address the second and third issues identified in the CAD. The purpose of considering these two issues at this stage is to determine, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics were a factor in the treatment the applicant experienced or unless there is proof of an intention to reprise against the applicant.

11The question that the Tribunal will have to decide with respect to the second and third issues identified in the CAD is the following: whether there is a reasonable prospect that evidence the applicant has, or that is reasonably available to her, can show a link between the alleged unfair treatment experienced by the applicant and the grounds alleged in the Application. The applicant will not be expected to advance evidence in the summary hearing. Instead, she will be expected to tell the Tribunal what direct or indirect evidence she expects to have available to connect the unfair treatment she allegedly experienced with the grounds listed in her Application.

12For all these reasons, I do not think that the applicant’s inability to access the documents referred to in her adjournment request amount to an exceptional circumstance justifying an adjournment. Likewise, the fact that she is self-represented does not amount to an exceptional circumstance justifying an adjournment request. Applicants are not required to be represented by a lawyer during the Tribunal’s proceedings and many applicants are self-represented. The Tribunal adapts its process to deal with this situation as appropriate.

13For all these reasons, the applicant’s request for an adjournment of the summary hearing is denied. The summary hearing will proceed as scheduled.