HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zaynab Ahmed
Applicant
-and-
T-Zone Health Inc.
Respondent
INTERIM DECISION
Adjudicator: Ruth Carey
Indexed as: Ahmed v. T-Zone Health Inc.
WRITTEN SUBMISSIONS
Zaynab Ahmed, Applicant
Richard Miller, Counsel
T-Zone Health Inc., Respondent
Jim Barney, Representative
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, disability, sex, family status, and age; and reprisal.
2This Application is currently scheduled to be heard on December 16 and 17, 2013.
3On October 17, 2013, the Tribunal was notified that the applicant had retained counsel and was requesting an extension of the deadline for productions under Rules 16 and 17 of the Tribunal’s Rules of Procedure. On November 1, 2013, the respondent filed and delivered its productions and a Request for Summary Hearing. The respondent’s covering letter to the Tribunal that accompanied its productions noted that it had received no reply to a letter to the applicant asking for disclosure. On November 6, 2013, the applicant wrote requesting an adjournment of the hearing and an extension of time with respect to her outstanding productions.
4This Interim Decision is being issued to address the requests for: summary hearing; adjournment; and extension of time for the applicant’s Rule 16 and 17 productions. For the reasons stated below: the Request for Summary Hearing is denied; the request for adjournment is granted; and the deadline for the applicant’s productions is extended to December 13, 2013.
The Request for Summary Hearing
5The respondent states in its Request for Summary Hearing that a summary hearing should be held because:
None of the Applicant’s 6 Grounds of Discrimination are proven. They are all completed refuted by [the respondent] in the enclosed Response and Disclosure.
6Attached to the Request are the respondent’s Response, witness statements, and the documents it intends to rely on at the hearing. These attachments clearly indicate that the respondent refutes the facts alleged in the Application. For example, the Application says the applicant asked for November 7, 2011, off as it was Bukra Eid; but the respondent told her it was not an actual holiday and required her to work that day. The respondent’s position as indicated by its witness statements and documents is that the applicant asked for September 3, 2011, off for Eid, and did not work that day; and, she sent an email saying she was available to work throughout the month of November, 2011. The respondent similarly refutes all of the other factual allegations made by the applicant. However, the respondent does not refute the legal theory being advanced by the Application.
7As stated in the Tribunal’s Practice Direction on Summary Hearing Requests:
The summary hearing is used to determine at an early stage whether an application should be dismissed because it has no reasonable prospect of success.
A summary hearing usually considers:
whether, assuming all of the allegations are true, the Application has no reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation; and/or
whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.
8Essentially what this means is that the summary hearing process is used to explore those applications where the allegations may be legally insufficient to constitute a case to be answered. That is not the case here. Summary hearings do not involve the hearing of any evidence. In order to address the respondent’s refutation of the applicant’s version of the facts, a hearing on the merits must be held. Therefore, the Request for Summary Hearing is denied.
The Adjournment Request
9The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments says the parties have 14 days after receipt of the Notice of Confirmation of Hearing to request an adjournment. With requests made after this 14 day time limit, the Practice Direction says:
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.
10The stated reasons for the applicant’s request for adjournment is that the applicant just gave birth, and the applicant’s representative is about to go on a short parental leave. Her letter says that the applicant and her counsel planned to complete her productions and prepare for the hearing prior to the applicant’s due date, but the applicant gave birth two weeks early so this was not possible. The respondent does not object to the adjournment request provided that the new hearing dates are in late January or February, 2014.
11The unanticipated early birth of the applicant’s child constitutes exceptional circumstances so the adjournment shall be granted. Dates are available for the re-scheduled hearing during the week of January 27, or the week of February 10, 2014. The parties should contact the Registrar as soon as possible to provide their availability during those weeks.
The Applicant’s Productions
12The first step in the Tribunal’s Rules requiring the parties to produce documents in preparation for the hearing is found in Rule 16.1. It says that within 21 days after the Tribunal issues its Notice of Confirmation of Hearing the parties are to exchange all arguably relevant documents in their possession and file a Statement of Delivery with the Tribunal attesting to having done so. The applicant filed her Statement of Delivery on June 21, 2013.
13Included with the respondent’s productions is a letter to the applicant’s counsel dated October 24, 2013. It requests certain productions. The covering letter to the Tribunal that accompanied the respondent’s productions says the respondent has not received a reply to this letter.
14If the respondent believes that the applicant has failed to comply with the requirement to produce all arguably relevant documents, then the respondent should file a Request for Order During Proceedings (in Form 10) available on the Tribunal’s web site at www.hrto.ca.
15As the applicant’s counsel is about to go on parental leave, an extension of time for the applicant’s productions under Rules 16.2, 16.3, and 17 is necessary. The applicant’s deadline shall be extended to December 13, 2013.
Miscellaneous
16On November 8, 2013, the respondent wrote to the Tribunal in response to the applicant’s request for an adjournment. Its letter indicates one of the witnesses it intends to call “has moved to Vancouver but could be available via video conferencing”.
17Rule 3.5 says in part:
The Tribunal may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate.
18If a party wishes to call a witness by electronic means that party should file a Request for Order During Proceeding.
ORDER
19The Tribunal makes the following orders:
a. The respondent’s Request for Summary Hearing is denied;
b. The request for adjournment is granted. The hearing dates of December 16 and 17, 2013 are cancelled;
c. By November 20, 2013, the parties shall provide to the Registrar their availability for the weeks of January 27, 2014 and February 10, 2014;
d. The applicant’s deadline for productions pursuant to Rules 16.2, 16.3 and 17 is extended to December 13, 2013.
Dated at Toronto, this 14th day of November, 2013.
“Signed By”
Ruth Carey
Member