Parker v. Mississauga (City), 2013 HRTO 1857

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charlene Parker Applicant

-and-

The Corporation of the City of Mississauga, Dara Marcoccia and Rohan Abbey Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: November 5, 2013 Citation: 2013 HRTO 1857 Indexed as: Parker v. Mississauga (City)

WRITTEN SUBMISSIONS

Charlene Parker, Applicant Self-represented

The Corporation of the City of Mississauga and Dara Marcoccia, Respondents Shana French, Counsel

Introduction

1This Application was filed under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 8, 2010, and alleges discrimination and harassment on the basis of disability and sex in employment, and reprisal. The Application concerns matters alleged to have occurred between May 2008 and November 2009, and includes allegations of a sexual assault on or about May 30, 2009.

2This Application is currently scheduled to be heard on November 20, 21 and 22, 2013. The purpose of this Interim Decision is to address the applicant’s request that these hearing dates be adjourned.

Background

3This Application was originally scheduled to be heard on May 14, 15 and 16, 2012. On April 25, 2012, the applicant filed correspondence requesting that these hearing dates be adjourned. A letter from the applicant’s doctor was attached to the adjournment request, indicating that the applicant had been assaulted while on duty almost one month earlier, and that she had upcoming medical tests. The respondent, The Corporation of the City of Mississauga (the “City”), opposed the request.

4Following a case management conference call on May 1, 2012, the Tribunal granted the applicant’s request to adjourn the May 14, 15 and 16, 2012 hearing dates. The applicant agreed to contact the Tribunal and the respondents within three months to request that the hearing be rescheduled.

5On July 24, 2012, the applicant’s representative requested that the Application be rescheduled for a hearing. New hearing dates were set for December 19, 20 and 21, 2012.

6On November 23, 2012, the Tribunal received a letter from the applicant’s representative advising that he was no longer representing the applicant in this matter. Shortly thereafter, on November 29, 2012, the City and the individual respondent, Dara Marcoccia, requested, with the applicant’s consent, that the December 2012 hearing dates be adjourned to February 2013. They indicated that the applicant advised that she was in contact with the Human Rights Legal Support Centre (“HRLSC”), and that she was seeking alternate counsel. They explained that the adjournment request was submitted on consent in the interests of allowing the applicant sufficient time to prepare, so that efficient use could be made of the parties’, as well as the Tribunal’s, time and resources.

7The City and Ms. Marcoccia also indicated in their letter that the applicant filed a workplace grievance which was, at the time, positioned to proceed to arbitration. They indicated they were hopeful that, in addition to facilitating the efficacy of the hearing process, the requested adjournment may also permit the parties time to explore settlement options that might allow for a global resolution of all issues outstanding as between them. The individual respondent, Rohan Abbey, opposed the adjournment request.

8By Interim Decision dated December 12, 2012, 2012 HRTO 2333, the Tribunal determined that in the circumstances, and having regard, in particular, to the issues raised by the Application, it was appropriate to grant the requested adjournment, and to also seek submissions on whether or not it would be appropriate to defer the Application in light of the applicant’s grievance which was positioned to proceed to arbitration.

9The applicant and the respondents, the City and Ms. Marcoccia, provided submissions on the issue of deferral. By Interim Decision dated March 6, 2013, 2013 HRTO 383, the Tribunal determined that there did not appear to be an ongoing grievance dealing with the same facts and issues as the Application. The Tribunal noted that the applicant alleges in her Application that she was subjected to discrimination and harassment on the basis of disability and sex, including a poisoned work environment, and reprisal, while employed with the City. The applicant’s grievance, on the other hand, concerns the termination of her employment more than two years after her Application with the Tribunal was filed. The Tribunal determined that in the circumstances there appears to be little possibility, if any, of inconsistent decisions in concurrent proceedings and that deferral was not appropriate. The Tribunal indicated that it would be in contact with the parties shortly in order to reschedule the hearing of the Application.

10In correspondence dated April 8 and 18, 2013, the applicant requested that the Tribunal reconsider its decision to not defer this Application, and, on April 26, 2013, the applicant delivered and filed a Request for Reconsideration. The applicant’s request that the decision to not defer the Application be reconsidered was denied by an Interim Decision dated July 23, 2013, 2013 HRTO 1281. The Tribunal again indicated that it would be in touch with the parties shortly to reschedule hearing dates.

11On July 29, 2013 the Tribunal wrote to the parties by email, providing available dates for rescheduling the hearing, and directing the parties to respond by August 7, 2013. The respondents provided their preferred dates for a hearing, however, the applicant did not respond to the Tribunal’s directions. On August 14, 2013, the Tribunal again wrote to the parties, referring to the Tribunal’s earlier July 29, 2013 email, and indicating that the deadline for providing hearing dates had passed. The Tribunal directed the applicant to provide hearing dates by August 19, 2013, and indicated that if the applicant did not do so, the Tribunal would select dates for a hearing. Having not heard from the applicant, the Tribunal issued a Notice of Hearing on August 20, 2013, confirming that the hearing was rescheduled for November 20, 21 and 22, 2013.

ADJOURNMENT REQUEST

12On September 12, 2013, the Tribunal received correspondence from the applicant, in response to the Tribunal’s Notice of Hearing, requesting that the scheduled hearing dates be adjourned based on medical grounds. The applicant included with her correspondence a document signed by her doctor. On September 23, 2013, the Tribunal received correspondence from the respondents, the City and Ms. Marcoccia, objecting to the applicant’s adjournment request. These respondents also submit that the Application should be dismissed as an abuse of process, and that if the Tribunal is not prepared to dismiss the Application at this juncture, the applicant should be required to further particularize her adjournment request.

13On October 9, 2013, the Tribunal issued a Case Assessment Direction (“CAD”). In the CAD, the Tribunal referred to Shaikh v. York Condominium Corporation #60, 2012 HRTO 1588, wherein the Tribunal explained that it has a Policy on Accessibility and Accommodation, but that it is the responsibility of the individual requesting accommodation to provide the Tribunal with sufficient information so that the individual's needs may be assessed and balanced with the requirements of the Application process, and accommodation may be planned.

14The Tribunal indicated in the CAD that the document signed by the applicant’s doctor accompanying her adjournment request simply states that the applicant is not presently capable of participating in a hearing. Her doctor recommends rescheduling in order to reduce the likelihood of further aggravating the applicant’ health condition, and states that the applicant recently began taking medication that results in “undesirable side effects and reactions”. The document does not explain what side effects and reactions the applicant experiences, nor how frequently they occur. The Tribunal indicated that, as such, it is not able to assess whether or not the applicant’s medical condition requires accommodation and can be accommodated in the hearing process.

15The Tribunal also indicated in the CAD that the applicant has, in effect, requested an indefinite adjournment. The applicant requests that the hearing be rescheduled until such time that she is deemed to be in “remission”, and states that the time required to facilitate her recovery is to be determined. The document signed by the applicant’s doctor states that the hearing should be adjourned until such time that the applicant has sufficiently regained her health to be considered in remission. The Tribunal noted that, in Shaikh, supra, where the applicant had in effect requested an indefinite stay of proceedings, the Tribunal accepted that the prospect of an indefinite stay raises considerations of fairness to the respondents. In the particular circumstances of that case, the Tribunal held that requesting an indefinite stay of proceedings while refusing to provide appropriate evidence as to the relevant circumstances amounts to an abuse of the Tribunal’s process.

16In the circumstances, the Tribunal indicated in its CAD that it required additional information from the applicant in order to properly consider the applicant’s adjournment request. The Tribunal directed the applicant to provide a medical report from her doctor, within 10 days of the date of the CAD, clearly explaining the following:

a) how the applicant’s medical condition, including any symptoms, side-effects, or reactions, would affect her ability to participate in a hearing before the Tribunal on November 20, 21 and 22, 2013.

b) what appropriate accommodation measures might enable the applicant to participate in a hearing on November 20, 21 and 22, 2013, such as taking breaks when needed.

c) If the applicant is not able to participate in the hearing on November 20, 21 and 22, 2013, even with appropriate accommodation measures, the report should indicate when it is reasonably expected that the applicant will be able to participate in a hearing before the Tribunal, including with appropriate accommodation measures, and what those accommodation measures might be.

17As of the date of this Interim Decision, the Tribunal has not heard from the applicant. In correspondence dated October 25, 2013, the respondents, the City and Ms. Marcoccia, state that, in the event the applicant has failed to comply with the Tribunal’s CAD, they reiterate their request that the Application be dismissed as an abuse of process.

DECISION

18The 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.

19In my view, the information before me is insufficient to establish that there are exceptional circumstances that would justify a further adjournment of the hearing at this late stage. The Tribunal indicated in its October 9, 2013 CAD that additional information was required in order to properly consider the applicant’s adjournment request. The Tribunal directed the applicant to provide a medical report addressing specific points. The Applicant has not done so.

20The Tribunal also notes that the applicant provided the Tribunal with lengthy correspondence dated September 31 and October 4, 2013, that was received by the Tribunal on October 9 and 10, 2013, respectively. In this correspondence, the applicant replies to the City’s and Ms. Marcoccia’s objection to her adjournment request, and attaches various documents. In her correspondence dated September 31, 2013, the applicant indicates, among other things, that she has been in touch with the HRLSC since December 2012, and that she is requesting an “extension” for the same reason one was initially sought in December: to allow the HRLSC sufficient time to prepare for the hearing. She states that the adjournment is requested until such time as the HRLSC deems this Application ready to proceed to the hearing stage. In her correspondence dated October 4, 2013, the applicant states that an extension or adjournment is only required if deemed necessary by the HRLSC, and that her request was simply in anticipation of the possible requirement of such. She asks that no decision be made with respect to her adjournment request prior to a meeting that she has with the HRLSC on October 7, 2013. As of the date of this Interim Decision, the Tribunal has not heard further from the applicant.

21It appears that the primary reason underlying the applicant’s adjournment request may very well relate to concerns the applicant has about having legal representation at the hearing. In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4, the Tribunal made the following comments regarding adjournment requests:

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 [now fourteen] 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 [now fourteen] days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

22The Tribunal has held that a party’s decision to retain counsel after a hearing has been scheduled is not an “extraordinary circumstance” justifying an adjournment simply because counsel is unavailable or unprepared. See Valiani v. Canadian Labour Congress, 2011 HRTO 1886, at para. 9. The Tribunal has also repeatedly stated, where parties prefer to have legal representation at a hearing, that it is the parties’ responsibility to take steps to ensure that legal counsel is retained and available for scheduled hearing dates. See Lee v. Kawartha Pine Ridge District School Board, 2013 HRTO 1499.

23In the present case, the applicant has been aware since November 2012 that her former representative is no longer representing her in this matter, and it appears that she has been in touch with the HRLSC since that time. In my view, the applicant 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 November 20, 21 and 22, 2013.

24While the respondents, the City and Ms. Marcoccia, have requested that this matter be dismissed as an abuse of process, I do not find that the circumstances of this case, to date, rise to the level of an abuse of process. The respondents submit that the applicant has, at every turn, put up barriers and roadblocks to a fair, just and expeditious determination of her Application, which has in turn resulted in significant prejudice to the respondents and their witnesses. However, I do not find that the respondents have established actual prejudice or unfairness sufficient to warrant dismissing the Application, at this stage of the proceeding, as an abuse of process.