Miriam Hackman v. Corporation of the Town of Ajax, 2013 HRTO 1557

Human Rights Tribunal of Ontario

Between:

Miriam Hackman Applicant

-and-

Corporation of the Town of Ajax Respondent

Interim Decision

Adjudicator: Douglas Sanderson Date: September 17, 2013 Citation: 2013 HRTO 1557 Indexed as: Hackman v. Ajax (Town)

Written Submissions

Miriam Hackman, Applicant Donald Granatstein, Counsel

Corporation of the Town of Ajax, Respondent Andrew Zabrovsky, 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 ethnic origin. A hearing of the matter is scheduled on September 30 and October 1, 2013.

2This Interim Decision addresses a Request for an Order During Proceedings (the “Request”) by the applicant, filed on August 28, 2013, to defer the Application for approximately six months. While the applicant characterized the Request as a request to defer, it is in fact an adjournment request. The applicant indicated that she has suffered four concussive incidents in approximately the last 16 months, the last of which was incurred in a motor vehicle accident on July 28, 2013. The applicant states that her doctor has advised her to rest, have no physical stimulation, and stay in a room with blackout blinds. The applicant submits that she is therefore in no condition to prepare for or attend the hearing. The applicant submitted a letter from her physician, Dr. Maxted, dated September 3, 2013, that confirmed that the applicant is suffering from a concussion incurred in a motor vehicle accident on July 12, 2013, and is being followed for mental, cognitive and physical symptoms. Dr. Maxted also stated that given the applicant’s lack of significant progress towards recovery he did not believe that she would be sufficiently well to participate in the hearing and recommended that it should be rescheduled no sooner than three months from the date of the letter.

3The respondent filed a Response to a Request for an Order on September 6, 2013. The respondent stated that it neither consents to nor opposes the applicant’s request. Although it took no position regarding the Request, the respondent noted that it has taken significant steps to prepare for the hearing and meet its pre-hearing obligations and is somewhat sceptical of the timing of the applicant’s Request, as it came at the time when the applicant was required to do the same. The respondent also noted that the applicant filed the Request a month after the applicant suffered her injury and only as the hearing drew near. The respondent acknowledged, however, that the applicant provided a medical note to support the Request. The respondent objected to the length of the adjournment the applicant requested, i.e., six months, since the medical evidence supported only a three-month delay from September 3, 2013. The respondent therefore submitted that if the Tribunal granted the Request, it should reschedule the hearing at the earliest time convenient to the respondent after December 3, 2013, and that any rescheduled dates be peremptory on the applicant.

4The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments provides that requests to reschedule must be made within 14 days of receiving the Confirmation of Hearing and that outside that time adjournments will be granted only in extraordinary circumstances. Accordingly, the Tribunal grants adjournment sparingly and the fact that it is unopposed by the other party is no guarantee that a request for an adjournment will be successful.

5In these circumstances, however, I am satisfied that the request for a brief adjournment is justified and do not share the respondent’s scepticism. The applicant’s Request came a full month prior to the first hearing date and is by no means last minute. It also does not seem unreasonable for the applicant to wait for a period after her accident in order to ascertain the extent of her impairment and whether her condition would improve sufficiently to allow her to participate in the hearing before seeking an adjournment. The applicant provided medical documentation confirming that she is unable to participate in the hearing, as it is currently scheduled. In my view, this amounts to an extraordinary circumstance that warrants re-scheduling the hearing.

6The medical documentation provided by the applicant does not, however, support a six-month adjournment. Rather, Dr. Maxted indicated that the earliest he expected the applicant to be able to participate in a hearing was three months from September 3, 2013. Accordingly, the parties are directed to provide their available dates for a hearing that are within 12 weeks of December 3, 2013 to the Registrar within 10 days of the date of this Interim Decision. In my view there is no basis for selecting hearing dates based solely on the respondent’s convenience or for making the re-scheduled dates peremptory on the applicant.