Youkhana Moshi v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, 2013 HRTO 3

Human Rights Tribunal of Ontario

Between:

Youkhana Moshi Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services Respondent

Interim Decision

Adjudicator: Sheri D. Price Date: January 2, 2013 Citation: 2013 HRTO 3 Indexed as: Moshi v. Ontario (Community Safety and Correctional Services)

Written Submissions

Youkhana Moshi, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Correctional Services and Community Safety, Respondent Jordana Joseph, Counsel

1This is an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") in which the applicant alleges that the respondent infringed certain of his rights under the Code. The applicant is presently being held in a detention centre on an "immigration hold".

2The Application is scheduled to be heard on January 14, 15 and 16, 2013.

3The purpose of this Interim Decision is to address the applicant's request that the January 2013 hearing dates in this matter be adjourned.

Background

4On May 29, 2012, the Tribunal sent the parties a Notice of Confirmation of Hearing directing them to take certain steps in advance of the hearing. In particular, and among other things, the Notice of Confirmation of Hearing directed the parties to comply with Rules 16 and 17 of the Tribunal's Rules of Procedure by providing one another with copies of their arguably relevant documents within 21 days of the date of the Notice of Confirmation of Hearing; and by exchanging with one another and filing with the Tribunal the documents they intended to rely upon at the hearing, a list of their witnesses and a summary of their witnesses' anticipated evidence by no later than November 30, 2012 (i.e. 45 days before the first scheduled day of hearing).

5The applicant did not provide the respondent or the Tribunal with the materials required under Rules 16 and 17 of the Tribunal's Rules of Procedure by November 30, 2012.

6Accordingly, in a December 13, 2012 Case Assessment Direction, the Tribunal directed the applicant to provide the materials required under Rules 16 and 17 of the Tribunal's Rules of Procedure within 14 days (i.e. by December 27, 2012), failing which the Application might be dismissed by the Tribunal as abandoned.

Request for an Adjournment

7The applicant has not complied with the directions in the Tribunal's December 13, 2012 Case Assessment Direction.

8Instead, on December 21, 2012, the Tribunal received an email sent on behalf of the applicant requesting that the January 2013 hearing dates in this matter be adjourned. The basis for the adjournment request is that the applicant has been unable to comply with his obligations pursuant to the Tribunal's Rules and/or to prepare for the upcoming hearing in respect of his Application because he is presently incarcerated. In particular, the applicant submits that he has been unable to access and/or has had significant difficulty accessing documents that relate to the Application. The applicant submits that he does not have ready access to his documents because they are stored with his "property". The applicant submits that, although he requested access to his documents, he had not yet been given such access at the time of the adjournment request.

9In the December 21, 2012 email, the applicant also seeks an adjournment of the January 2013 hearing dates on the basis that, although he intends to summons a number of witnesses to testify at the hearing of his Application, he has been unable to do this while incarcerated. It should be noted that the Tribunal had previously clarified to the applicant that it was his responsibility to summons his witnesses to the hearing, and that the Tribunal did not serve summonses on witnesses.

10The respondent takes no position on the applicant's adjournment request.

11By way of background, I should point out that, prior to the December 21, 2012 email, the applicant had communicated that, while incarcerated, he has limited access to a telephone and no access to a computer, and thus has significant difficulty communicating with the Tribunal or the respondent in writing.

12I should also point out that, in addition to not filing his documents and witness statements as required by the Tribunal's Rules of Procedure, the applicant has failed to respond to two Requests filed by the respondent in respect of this matter in December 2012. In particular, on December 4, 2012, the respondent filed a Request for an Order during Proceedings seeking to have the Application dismissed on the basis that another proceeding has appropriately dealt with the substance of the Application (s. 45.1 of the Code); as well as a Request for a Summary Hearing. Although these materials appear to have been delivered to the detention centre where the applicant is presently incarcerated on December 4, 2012, the applicant advised that, as of December 13, 2012, he had still not seen the (rather voluminous) materials in question. In accordance with the Tribunal's Rules, the applicant had until December 18, 2012 to file his written response to the respondent's Requests. However, as noted above, the applicant has not yet filed any such response.

Analysis and Decision

13I find that there are extraordinary circumstances in this case that warrant the adjournment of the hearing. For reasons beyond his control, the applicant has been unable to access the documents and witnesses he needs in order to prepare for and participate in the upcoming hearing of his Application. In addition, the applicant has had limited, if any, opportunity to review and respond to the respondent's December 2012 Requests that his Application be dismissed pursuant to s. 45.1 of the Code and/or Rule 19A of the Tribunal's Rules of Procedure. It would be unfair to require the applicant to proceed in such circumstances.

14The applicant's adjournment request is granted. The hearing will not proceed on January 14, 15, and 16, 2013.

15However, the Tribunal will convene a conference call with the parties on January 14, 2013 to identify what, if anything, ought to be done in order to allow the applicant to prepare for and/or participate in the hearing of the Application and to address the rescheduling of the hearing. The Registrar's office will contact the parties to provide information regarding how to connect to the conference call.