HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Lee
Applicant
-and-
Kawartha Pine Ridge District School Board
Respondent
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Lee v. Kawartha Pine Ridge District School Board
WRITTEN SUBMISSIONS
Robert Lee, Applicant
Self-represented
Kawartha Pine Ridge District School Board, Respondent
Brenda Bowlby, Counsel
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability, family status and marital status and reprisal or threat of reprisal.
2The purpose of this Interim Decision is to address the applicant’s request for an adjournment of the hearing in this matter, which is currently scheduled to proceed on September 23, 24 and 25, 2013. These hearing dates were scheduled in consultation with all parties, and confirmed by Notice of Hearing dated January 30, 2013.
3By Interim Decision dated August 20, 2013, I made certain orders requiring the applicant to sign consents for his doctors to disclose certain medical records to the respondent, and to comply with his pre-hearing obligations under the Rules to deliver a list of witnesses, witness statements, and the documents he intends to rely upon at the hearing. The applicant was to have complied with the former order by August 26, 2013, and with the latter order by August 30, 2013. When the applicant did not comply with either order by the required deadline, the respondent raised the issue of non-compliance on September 3, 2013. I issued a Case Assessment Direction (“CAD”) dated September 4, 2013, affording the applicant one final opportunity to comply with these orders, failing which I would consider whether to dismiss the Application for abuse of process.
4On the evening of September 3, 2013, after the respondent had raised the issue of the applicant’s non-compliance with this Tribunal’s orders but prior to the issuance of the CAD, the applicant sent e-mail correspondence to the Tribunal asking that the hearing dates in this matter be “put on hold” until he is able to continue. The basis for this request is the applicant’s statement that the Human Rights Legal Support Centre (“HRLSC”) had been “sitting with [his] file for months” but only now has advised him that it is unable to represent him at the hearing. The applicant states that he finds this very unfair and that it has left him feeling sick, helpless, overwhelmed, and unable to function properly. He states that he is unable to proceed at present and asks for time to try to find someone to help him.
5The applicant’s adjournment request is opposed by the respondent. By e-mail correspondence even later in the evening of September 3, 2013, respondent counsel notes that at no point has any lawyer from the HRLSC indicated that it is acting for the applicant. The respondent further notes that the applicant has acted on his own behalf since his former lawyer filed the revised Application in December 2011, including making requests for orders on his own behalf and responding to the respondent’s requests. Finally, the respondent notes that this Application has dragged on for over three years, since the original Application was first filed by the applicant in February 2010, and relates to issues that extend back several years prior to that. The respondent states that it has witnesses who have retired or left their employment with the school board, and that it is becoming increasingly difficult for the respondent to mount its defence. The respondent submits that it would be grossly unfair to delay this matter further, particularly as an adjournment at this point would mean that the hearing could not proceed until sometime in 2014, when the Application would be some four years old before the proceeding is completed.
6On the evening of September 4, 2013, after issuance of the CAD, the applicant sent further e-mail correspondent to the Tribunal repeating his request and asserting that his “illness” requires help. The respondent replied by e-mail even later in the evening to reiterate its opposition to the applicant’s request.
7No medical documentation has been provided by the applicant to indicate that he is unable to proceed with the hearing due to illness or disability.
8The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states:
The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a . . . hearing . . . . 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, copied to the other parties.
9At this time, it is my view that I do not have a sufficient basis to support that there are exceptional circumstances that would justify an adjournment at this late stage. The applicant has asserted that he is feeling helpless and overwhelmed and refers to this as an “illness” that requires help, but has not provided any medical documentation to support his request.
10Rather, in my view, the precipitating reason for the applicant’s request appears to be the HRLSC’s decision that it will not represent him in this matter. I appreciate that the applicant would prefer to have legal representation at the hearing in this matter. However, as this Tribunal has repeatedly stated, it is the parties’ responsibility to take steps to ensure that legal counsel is retained and available for scheduled hearing dates. The applicant has been aware since December 2011 that his former counsel would be unable to represent him further in this matter. The applicant further has been aware since January 2013 that this matter was scheduled to proceed to hearing in late September. In my view, he has had more than ample time to seek and obtain legal representation. Accordingly, the applicant’s request for an adjournment is denied, and the hearing will proceed as scheduled on September 23, 24 and 25, 2013.
11Before leaving this matter, I wish to address once again the issue of the applicant’s non-compliance with this Tribunal’s orders. As stated in my CAD dated September 4, 2013, the applicant is required by 5:00 p.m. today to provide to the respondent the signed consents for Dr. Adel and Dr. Rayes. He asserts that he already provided consents for the disclosure of these medical records to the HRLSC, and it appears from his correspondence that the HRLSC may in fact have received disclosure of at least some of these records. However, providing consents for medical records to be disclosed to the HRLSC does not represent compliance with the order made in my Interim Decision dated August 20, 2013 or as re-stated in my September 3, 2013 CAD. The consents that the applicant needs to sign and provide to respondent counsel are the consents for the disclosure of medical records to the respondent in the form attached to the respondent’s Request for Order filed July 17, 2013, with any necessary amendments as discussed in my August 20, 2013 Interim Decision. At least as of 9:39 p.m. on September 4, 2013, the applicant still had not done this.
12Accordingly, I want to make it clear to the applicant that he needs to comply with the orders made by this Tribunal as re-stated in my September 3, 2013 CAD, failing which I will consider whether this Application should be dismissed for abuse of process.
ORDER
13For the foregoing reasons, I hereby make the following order:
a. the applicant’s request for an adjournment is denied, and the hearing will proceed as scheduled on September 23, 24 and 25, 2013;
b. By no later than 5:00 p.m. on Thursday, September 5, 2013, the applicant shall sign the consents for disclosure of medical records from Dr. Rayes and Dr. Adel as appended to the respondent’s Request for Order filed July 17, 2013 and return signed copies to respondent counsel, with any necessary changes as described in the Interim Decision dated August 20, 2013 in the event that no consent was provided for Dr. Adel;
c. By no later than 5:00 p.m. on Monday, September 9, 2013, the applicant shall deliver to respondent counsel and file with the Tribunal the following material:
i. A list of all witnesses, including himself, that he intends to call to give evidence at the hearing,
ii. A statement of each witness’ expected evidence. Each statement should set out the witness’ evidence on all relevant areas to which it is proposed that they testify. For the applicant, if he is simply relying upon the information provided in the re-drafted Application, this can simply be confirmed. If there are any additional areas about which he proposes to give evidence, then this needs to be stated, and
iii. A list of all documents or materials upon which he intends to rely at the hearing, together with a copy of these documents and materials; and
d. Should the applicant fail to comply with this Tribunal’s orders by those deadlines, the Application may be dismissed as an abuse of process.
Dated at Toronto, this 5^th^ day of September, 2013.
“Signed by”
Mark Hart
Vice-chair