Brown v. Ontario (Community Safety and Correctional Services), 2013 HRTO 1772

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Coreena Brown

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Central North Correctional Centre) and Robyn Kasha

Respondents

A N D B E T W E E N:

Coreena Brown

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Central North Correctional Centre) and Robyn Kasha

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: October 18, 2013 Citation: 2013 HRTO 1772 Indexed As: Brown v. Ontario (Community Safety and Correctional Services)

1These are two applications: an Application filed on September 7, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and an Application Alleging Contravention of Settlement filed on August 25, 2011. This Interim Decision addresses a request to adjourn the hearing dates scheduled for October 28 and 29, 2013.

Background

2The Applications were originally scheduled for hearing on February 19, 2013. The parties elected to participate in mediation/adjudication, which continued on May 15, 2013. The Applications did not resolve and on May 29, 2013, were scheduled for hearing on September 17, 18, October 28 and 29, 2013.

3On September 5, 2013, the applicant’s then counsel of record emailed the Tribunal advising that he will not be representing the applicant in the proceedings. Shortly thereafter on the same date, the applicant emailed the Tribunal seeking an adjournment of the four scheduled hearing dates. The applicant stated that she was requesting time to obtain and instruct new counsel and give her new counsel time to prepare.

4The request for an adjournment was opposed. Among other things, counsel for the respondents stated that they were not privy to the solicitor-client privilege relationship between the applicant and her former counsel and could not know whether or not such late notice could or should have been avoided. The respondents stated that they were prepared to proceed but if the adjournment was granted, the dates in late October should be retained.

5A conference call was held to address the applicant’s request. During the call I stated that, whatever the reason for the loss of representation, the fact remains that the applicant had legal representation and ceased having legal representation less than two weeks before the first two hearing dates in a file involving allegations over several years. Further, I noted that the respondents had not identified any particular prejudice. In the circumstances, I adjourned the dates of September 17 and 18, 2013, and stated that the dates of October 28 and 29, 2013 would remain scheduled. In addition, I referred to the Tribunal’s Policy on Representation before the HRTO which states in part:

…Representatives retained after hearing or mediation dates are set must be available on those dates. Adjournments to accommodate a new representative’s schedule or preparation needs will only be granted in exceptional circumstances.

6Further, I emphasized that in order to determine if exceptional circumstances exist, a party would be required to provide detailed particulars of what steps were taken to obtain counsel and establish why those steps did not result in a positive outcome either through documentary or oral evidence.

7On October 7, 2013, the applicant requested an adjournment of the hearing dates of October 28 and 29, 2013 citing “exceptional circumstances”. The applicant encloses a letter from the Human Rights Legal Support Centre dated October 7, 2013. The letter refers to the applicant having contacted them on September 13, 2013 and summarizes their subsequent dealings with her. The letter concludes by stating “…the HRLSC has limited resources and thus is unable to provide you with legal representation at the hearing scheduled for October, 2013”.

8The applicant states that she had been “informed that the case is too complex and more time would be needed in order to adequately represent me for the hearing” (information which does not appear in the letter from the HRLSC). The applicant also states that she has been “quite ill” for the past three weeks and that she is currently in her doctor’s care undergoing more tests, which strengthens her need for the request to be granted.

9On October 11, 2013, the respondents responded opposing the adjournment. The respondent states that the hearing is more than two weeks away and thus the applicant still has time to retain counsel. The respondent notes that the HRLSC has not agreed to take the applicant’s case and that in fact, the HRLSC has stated that it does not have enough time to assess the case to determine if representation would even be provided (relying on the content of the letter). The respondent states that the fact the applicant remains without counsel is not exceptional and the applicant has failed to provide “detailed particulars” as set out in the Case Assessment Direction. The respondents further submit that the assertion of being “quite ill” is not sufficient to justify and adjournment.

10On October 16, 2013, the applicant filed a reply. The applicant does not dispute the respondent’s contention that the HRLSC has not agreed to take her case but suggests that based on their selection criteria she will be given assistance. The applicant states that she has spoken to “additional counsel” but has been informed that “given the volumes of information and complexity of the case as well as the respondent, it would be unrealistic to be able to adequately represent me given the time frames.” The applicant states that she has done everything that has been requested of her.

11The applicant also states that she has disabilities (which she appears to say impacts on her ability to strengthen her need for an adjournment). Further, the applicant submits that the illness that she referenced occurring in September has “greatly impacted” her search for counsel and will “greatly impact” her ability to represent herself.

12A doctor’s note is provided with the applicant’s submissions. This note states that the applicant had an illness which is specified “and still recovering, will likely take until end of October”.

DECISION

13Based on the material filed and the submissions made, I deny the request for an adjournment.

14The Tribunal’s Practice Directions and jurisprudence make it clear that adjournments of dates previously scheduled will only be granted in exceptional circumstances. Further, in this case, I previously highlighted that in order to determine if exceptional circumstances exist (based on absence of counsel), the applicant would have to provide “detailed particulars” of what steps were taken to obtain counsel and establish why those steps did not result in a positive outcome either through documentary or oral evidence. In this case, based on the material filed and the submissions made, I do not find that the applicant has satisfied me that there are exceptional circumstances which justify an adjournment.

15The applicant relies on two grounds to justify her request: her unsuccessful efforts to obtain counsel and her recent illness. While I have carefully considered the information provided, I do not find the information is sufficient to establish that exceptional circumstances exist.

16While I appreciate the applicant has taken steps to contact the HRLSC, it does not appear that the HRLSC has given any commitment to act for the applicant or even a time frame for reaching a decision. In any event, I do not find the HRSLC’s unavailability on the scheduled hearing dates justifies the granting on an adjournment particularly where the applicant had, until recently, her own counsel.

17Further, the applicant has not particularized her efforts to obtain additional counsel (other than counsel from the HRLSC) nor has she provided any documentation in support of her efforts as I previously highlighted would be necessary to justify a future request. For example the applicant has not provided correspondence documenting her contact with lawyers other than the contact she had with the HRLSC. Based on the information provided, it would appear that the applicant made only nominal efforts to contact other counsel.

18As for the applicant’s illness, even accepting the doctor’s note, it does not suggest that the applicant will be unable for medical reasons to participate in the hearing by giving evidence and/or making submissions. Further, the medical note does not address what impact, if any, the applicant’s illness had on her efforts to find counsel. While the applicant asserts that her efforts were “greatly impacted” I do not find that her assertion alone is sufficient in this case to justify an adjournment.

19This Application has been adjourned once already. The Tribunal must balance the needs of the applicant as against its responsibility to provide a fair, just and expeditious hearing. At this time based on the material filed, I am not convinced that the applicant has established that there are exceptional circumstances which justify a further adjournment.

20The applicant is not precluded from renewing her request for an adjournment if she has additional information and documentation that she wishes the Tribunal to consider.

21The Tribunal may address any further request in writing without reasons.