Peter Lewis v. City of Toronto and Kelvin Seow, 2013 HRTO 1400

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Lewis

Applicant

-and-

City of Toronto and Kelvin Seow

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: August 14, 2013

Citation: 2013 HRTO 1400

Indexed as: Lewis v. Toronto (City)

WRITTEN SUBMISSIONS

City of Toronto and Kelvin Seow, Respondents

Michael Martosh, Counsel

Introduction

1This Application was filed on October 26, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The applicant alleges discrimination with respect to employment based on race, colour, ancestry, place of origin, citizenship, ethnic origin and reprisal. The Application was amended to add a further allegation of reprisal relating to the termination of the applicant's employment pursuant to the Tribunal's decision of November 14, 2012, 2012 HRTO 2148.

2The Application has been scheduled for a hearing on September 10, 11 and 12, 2013. Under the Notice of Confirmation of Hearing, the parties were directed to deliver their pre-hearing disclosure by July 26, 2013.

3On July 24, 2013, the respondents' legal counsel delivered the respondents' pre-hearing disclosure. In the disclosure, the respondents produced seven volumes of documents and witness statements for 32 potential witnesses.

4On July 26, 2013, the applicant's legal counsel delivered the applicant's pre-hearing disclosure, including witness statements for five witnesses, including the applicant.

5On July 29, 2013, the applicant's legal counsel advised the Tribunal that she was no longer representing the applicant effective 5:00 p.m. on July 26, 2013.

6On July 31, 2013, the applicant requested an adjournment of the hearing to permit him to retain new counsel.

7On August 1, 2013, the Tribunal requested the respondents' position on the adjournment request. On August 6, 2013, the respondents opposed the request on the basis that the matter was ready for hearing and that "retaining counsel" does not constitute the exceptional circumstances necessary for the Tribunal to grant the adjournment.

8The Tribunal's practice is to grant adjournments only in exceptional circumstances. In 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.

DECISION

9From the documentary disclosure and witness statements provided by the parties, it appears that this case is more complex than many cases before the Tribunal. The respondents have filed seven volumes of documents and 32 witness statements for potential witnesses. The applicant will have to review and respond to this evidence.

10The applicant has been represented throughout this matter and it is evident that he intended to proceed with the Application with the assistance of legal counsel. Given the complexity of the case, it is unclear to the Tribunal whether the applicant will be able to represent himself in this matter. The Tribunal is not and should not be aware of the reason why counsel is no longer representing the applicant, however, the applicant acted quickly in making the adjournment request once notified of that decision. The decision to get off the record was made six weeks before the commencement of the hearing. In these circumstances, the applicant has established the exceptional circumstances required to grant the adjournment. The adjournment is granted, in part.

11The adjournment is granted subject to the following terms:

a. The hearing will proceed on September 10, 2013. The applicant is directed to attend the hearing with his new legal counsel. If the applicant has been unable to retain counsel, he must advise the Tribunal on September 10, 2013 of his efforts to retain counsel and the result of those efforts.

b. If the applicant's new legal counsel is able to attend the hearing on September 10, 2013, that date will be used to case manage the hearing.

c. The hearing dates of September 11 and 12, 2013 are cancelled.

12The parties are advised of the Tribunal's mediation/adjudication process set out in Rule 15A of the Tribunal's Rules of Procedure. A copy of the Tribunal's mediation/adjudication agreement is attached to this Interim Decision for the parties' review. The Tribunal will offer this process at the commencement of the hearing on September 10, 2013. If the parties agree, the hearing will commence with mediation. If the parties do not consent to mediation/adjudication, the hearing will commence with case management issues, assuming the applicant's new legal counsel is present.